United States District Court, Middle District of Pennsylvania
REPORT AND RECOMMENDATION
Martin C. Carlson, United States Magistrate Judge
I. Statement of Facts and of the Case.
In its current form this case presents a singular set of circumstances. The pro se plaintiff, a federal prisoner, has sued the United alleging that in June of 2011 the prison served inmates chicken fajitas. (Doc. 1) According to the plaintiff, the chicken was bad, and was tainted with salmonella bacteria. (Id.) Consequently, the plaintiff contracted food poisoning, and suffered excruciating pain and symptoms which included headaches, diarrhea, abdominal pains, nausea, chills, vomiting, inability to eat and profuse sweating. (Id.) Alleging negligence on the part of the prison in the preparation and service of this food, the plaintiff seeks damages from the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2675, et seq.
The defendant has now moved for summary judgment alleging that the undisputed facts show that the plaintiff never contracted salmonella food poisoning.
Specifically, the defendant alleges that the undisputed evidence shows that on July 5, 2011, Atchison was evaluated by the USP Canaan Clinical Director, Dr. Walter Dobushak, at Atchison’s cell in the Special Housing Unit. (Doc. 22, Declaration of Barbara Sullivan (Ex. 1) ¶ 4; BEMR Records (Attach. A to Ex. 1)) The evaluation was performed to assess whether Atchison had suffered salmonella poisoning. (Id.) At that time, Atchison denied experiencing any gastrointestinal symptoms either before or after June 26, 2011. (Id.)
Presented with this proof that he never contracted food poisoning, the plaintiff has now elected to ignore the deadline for responding to this summary judgment motion and the facts alleged by the defendant are entirely uncontradicted. Thus, a plaintiff who is alleged to have falsely claimed to have contracted food poisoning, has now neglected to respond in any way to this factual assertion, an assertion that is fatal to his tort claim. In the face of this cascading array of procedural failures, we recommend that this action be dismissed.
This pro se civil rights action was initially brought by the plaintiff, a federal prisoner, through the filing of a complaint on May 10, 2013. (Doc. 1) As a pro se litigant the plaintiff was advised by this Court at this outset of this lawsuit of his responsibilities in this litigation. Thus, on May 10, 2013, the district court entered its Standing Practice Order in this case, an order which informed the plaintiff of his responsibility to reply to defense motions, and warned him in clear and precise terms of the consequences which would flow from a failure to comply with briefing schedules on motions, stating:
If the party opposing the motion does not file his or her brief and any evidentiary material within the. . . time frame [set by local rule], Local Rule 7.6 provides that he or she shall be deemed not to oppose the moving party’s motion. The motion may, therefore, be granted if: (1) the court finds it meritorious; or (2) the opposing party fails to comply with Local Rule 7.6 despite being ordered to do so by the court.
(Doc. 5, p.3)
As for summary judgment motions, the Court’s Standing Practice Order explained that:
Local Rule 56.1 requires a motion for summary judgment to be accompanied by a separate document containing a short and concise statement of material facts in numbered paragraphs. Local Rule 56.1 also requires a party opposing a summary judgment motion to file a separate concise statement of material facts responding to the numbered paragraphs of the moving party’s statement. The local rule further requires that the statements of material fact by both parties must include a reference to that part of the record that supports each statement. All parties to a summary judgment motion, either moving for it or opposing it, must comply with the filing requirements of Local Rules 7.1 through 7.8, described above. If a party opposing a summary judgment motion does not support such opposition as required by Rule 56, the motion for summary judgment shall be considered solely upon the affidavits or other supporting evidentiary material filed by the moving party, if any, and the motion may be granted.
(Id., p. 4.)
On January 27, 2014, the defendant filed a summary judgment motion in this case. (Doc. 19) This motion raised a straightforward legal claim, arguing that the plaintiff’s claim failed because the undisputed evidence showed that plaintiff had never contracted salmonella food poisoning.
On February 11, 2014, we then underscored for the plaintiff in clear and precise terms his obligation to respond to this motion, as well as the consequences which would flow from a failure to respond, stating:
IT IS ORDERED that the plaintiff shall file a response to the motion in accordance with Local Rule 7.6 on or before March 4, 2014. Pursuant to Local Rule 7.7 the movant may then file a reply brief within 14 days of the filing of this response, or on or before March 18, 2014. All briefs must conform to the requirements prescribed by Local Rule 7.8. The plaintiff is also placed on notice that a failure to respond to a motion may result in the motion being deemed unopposed and granted. Further, Local Rule 7.6 of the Rules of this Court imposes an affirmative duty on the plaintiff to respond to motions, and provides that Any party opposing any motion, other than a motion for summary judgment, shall file a brief in opposition within fourteen (14) days after service of the movant's brief, or, if a brief in support of the motion is not required under these rules, within seven (7) days after service of the motion.
Any party who fails to comply with this rule shall be deemed not to oppose such motion. Nothing in this rule shall be construed to limit the authority of the court to grant any motion before expiration of the prescribed period for filing a brief in opposition. A brief in opposition to a motion for summary judgment and LR 56.1 responsive statement, together with any transcripts, affidavits or other relevant documentation, shall be filed within twenty-one (21) days after service of the movant’s brief.
Local Rule 7.6 (emphasis added).
It is now well-settled that “Local Rule 7.6 can be applied to grant a motion to dismiss without analysis of the complaint's sufficiency ‘if a party fails to comply with the [R]ule after a specific direction to comply from the court.’ Stackhouse v. Mazurkiewicz, 951 F.2 d 29, 30 (1991).” Williams v. Lebanon Farms Disposal, Inc., No. 09-1704, 2010 WL 3703808, *1 (M.D. Pa. Aug.26, 2010). ...