United States District Court, Middle District of Pennsylvania
MICHAEL L. ODOM, Plaintiff
GREGORY MOREHEAD, et al., Defendants
Conner, Chief Judge.
REPORT AND RECOMMENDATION
Susan E. Schwab United States Magistrate Judge.
The plaintiff, Michael Odom, claims that the defendants violated his constitutional rights and violated state law in connection with an arrest. One of the two remaining defendants filed a partial motion to dismiss the complaint. Even after the Court ordered Odom to file a brief in opposition to that motion, he has failed to do so. In fact, Odom has not participated in this action since he began the case in June 2013. After analyzing the applicable factors, we conclude that the partial motion to dismiss should be granted and that the case should be dismissed based on Odom’s failure to prosecute this action.
II. Background and Procedural History.
Odom commenced this 42 U.S.C. ' 1983 case by filing a complaint and an application for leave to proceed in forma pauperis. He names the following two officers as defendants: 1) Gregory Morehead, an officer with the Cumberland Township Police Department; and 2) Barry Hockley, an officer with the Pennsylvania State Dog Law Enforcement Bureau. Odom also named Cumberland Township as a defendant. Odom alleges the following facts in his complaint.
In June of 2011, defendant Hockley approached Odom about a dog that had been found in the area of Odom’s home. Odom alleges that, although the dog belonged to his brother, he agreed to accept any applicable citations or fines for the dog. Hockley then stated that he would give Odom a fine based on the dog not having the required shots and that he would give Odom until the end of the day to obtain a license for the dog. According to Odom, after thanking Hockley and advising him of his intent to secure a license for the dog, he noticed a large insect land on Hockley’s abdomen, and Odom extended his right arm and index finger to point out the insect to Hockley. Then, according to Odom, defendant Morehead lunged at him and shoved him violently to the ground causing him to land on his back in the gravel and to slide several feet into the wet grass. Tempers flared. Odom asked Morehead why he had shoved him, and Morehead replied: “You don’t touch an officer of the law.” According to Odom, he had not touched nor attempted to touch Hockley, and after advising the officers that he wished to contact the state police to investigate the incident, he turned to walk toward his home. Morehead then yelled that he is the police and ordered Odom to come back. According to Odom, as he turned to obey, Morehead violently grabbed him and forced him up against Hockley’s vehicle, handcuffed him, and arrested him. In response to Odom’s question about why he had been arrested, Morehead allegedly stated: “I don’t like you[, ] you piece of shit, and I don’t want you living in my township. Your nothing but a worthless drunk.” This escalated things further, and, according to Odom, he lashed out verbally and told Morehead that he wished that he owned an AR-15 because, if he did, he would put a bullet in the back of his head.
After transporting Odom to the Cumberland Township Police Department, Morehead placed Odom into a holding cell, and, according to Odom, after a brief verbal exchange, Morehead entered the cell and assaulted him by shoving him and punching him in the neck. Odom alleges that Morehead knew him prior to this incident because of two prior incidents involving him and his brother.
Odom alleges that Morehead charged him with simple assault and terrorist threats. Bail was set at $10, 000, and Odom was taken to the Adams County Adult Correctional Facility. Odom alleges that due to Morehead’s version of the events, the District Attorney’s Office increased the simple assault charge to two counts of felony aggravated assault. According to Odom, throughout the proceedings, defendants Morehead and Hockley made multiple false and inconsistent statements about Odom assaulting or attempting to assault Hockley. In October of 2011, the District Attorney’s Office allegedly withdrew the assault charges, and Odom pleaded guilty to making terroristic threats with respect to his threat to defendant Morehead.
Odom claims that defendants Morehead and Hockley falsely arrested and maliciously prosecuted him, that Morehead used excessive force on him, and that Morehead and Hockley committed state law torts in connection with his arrest and prosecution. He claims that defendant Cumberland Township is vicariously liable for the conduct of defendant Morehead under the doctrine of respondeat superior and that the Township failed to properly train Morehead. He seeks declaratory relief as well as compensatory and punitive damages.
After reviewing the complaint in accordance with the 28 U.S.C. § 1915A, we recommended that Odom’s application to proceed in forma pauperis be granted, that that claims against Cumberland Township be dismissed, and that Odom be granted leave to file an amended complaint to attempt to state a claim upon which relief may be granted against Cumberland Township. Chief Judge Conner adopted that Report and Recommendation, and he gave Odom 20 days to file an amended complaint. But Odom never filed an amended complaint. After Odom failed to file an amended complaint, we ordered that the complaint be served on defendants Morehead and Hockely.
In December of 2013, defendant Morehead filed a partial motion to dismiss the complaint and a brief in support of that motion. Morehead moved to dismiss all the claims against him except the excessive force claim. We ordered Odom to file, on or before December 27, 2013, a brief in opposition to Morehead’s motion to dismiss. Odom failed to comply with that order. Noting that Odom had not filed anything since he began this case and that if a plaintiff fails to prosecute an action or to comply with an order, the Court may dismiss an action pursuant to Fed.R.Civ.P. 41(b), in early June of 2014, we again ordered Odom to respond to the motion to dismiss. We ordered that he respond on or before June 19, 2014. We warned Odom that if he failed to do so, we may deem him to have adandoned this lawsuit, and we may recommend that the action be dismissed pursuant to Fed.R.Civ.P. 41(b). Still, Odom did not respond. From Odom’s failure to respond and to prosecute this action even after being explicitly warned that failure to do so may result in dismissal, we conclude that Odom has abandoned this case. And after considering the relevant factors, we recommend that the case be dismissed.
A. Under the Rules of this Court, Odom Should Be Deemed Not to Oppose the Motion ...