United States District Court, M.D. Pennsylvania
REPORT AND RECOMMENDATION
MARTIN C. CARLSON, Magistrate Judge.
I. Statement of Facts and of the Case
This pro se civil rights action was initially brought by the plaintiff, a county prisoner, through the filing of a complaint on November 10, 2014, a complaint which alleged that the defendant correctional officer had used excessive force against Gill by spraying him in the face with OC spray, a chemical agent, "for a short period of time." (Doc. 1.) Gill's November 10, 2014, complaint is both the first, and the last, pleading we have received from the plaintiff. Thus, in the past six months the plaintiff has taken no further steps to litigate this case.
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 November 13, 2014, 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 14-day time frame, 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.2.)
Gill was further informed that: "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, .... 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., pp. 3-4.)
On May 18, 2015, the defendant filed a motion for summary judgment in this case. (Doc. 15.) Along with this motion the defendant presented the court with affidavits and a statement of facts which revealed the following undisputed facts: On September 13, 2014, the plaintiff was incarcerated at the Lebanon County Correctional Facility. On September 13, 2014, at approximately 11:00 a.m., defendant Elder was stationed in the Outmate Upper Unit of the prison, where he was responsible for supervising lunch service to the inmates housed in that unit. Protocol during lunch service in the Outmate Upper Unit is that inmates retrieve their lunch trays from the food service cart in a cell by cell fashion, and inmates are not permitted to take juice from the service cart until every inmate has received his lunch tray.
While defendant Elder was supervising the inmates during lunch service on September 13, 2014, he observed Gill removing juice jugs from the service cart before other inmates had received their meal trays, in violation of lunch service protocol. Defendant Elder ordered Gill to return the juice jugs to the service cart, but the plaintiff refused this direct order. Defendant Elder then issued Gill a second direct order to return the juice jugs to the service cart. Following defendant Elder's second direct order, Gill sat the juice jugs down on a table and began to walk away from defendant Elder. While the incident involving Gill and defendant Elder escalated, other inmates housed on the cell block began to surround the plaintiff and defendant Elder.
Defendant Elder then gave Gill a third direct order to return the juice jugs back to the service cart. In response to defendant Elder's third direct verbal order to return the juice jugs back to the service cart, Gill turned toward defendant Elder, postured in an aggressive and confrontational manner, and verbally challenged defendant Elder's command. Gill was only one to two feet away from defendant Elder when he took an aggressive posture toward him and Elder reasonably feared that he would be attacked by the plaintiff or the crowd of inmates that surrounded him.
In an effort to avoid a violent confrontation, defendant Elder then deployed a one second burst of oleoresin capsicum (OC) spray in Gill's face. Following this one second use of OC spray on Gill, the plaintiff finally became compliant, and he was restrained and transported to the on duty nurse who decontaminated him and determined that he had no medical issues related to the use of the OC spray.
Presented with this summary judgment motion, and this accompanying statement of facts describing this incident, Gill has taken no action to litigate this case or contest this motion and the deadline for responding to this motion has now passed. In the face of this continuing, and on-going, inaction we will deem this motion ripe for resolution, and for the reasons set forth below, we recommend that the complaint be dismissed.
A. Under The Rules of This Court This Motion to Dismiss Should Be Deemed Unopposed and Granted
At the outset, under the Local Rules of this Court the plaintiff should be deemed to concur in this motion to dismiss, since the plaintiff has failed to timely oppose the motion, or otherwise litigate this case. This procedural default completely frustrates and impedes efforts to resolve this matter in a timely and fair fashion, and under the Rules of this Court warrants dismissal of the action, since 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.2d 29, 30 (1991)." Williams v. Lebanon Farms Disposal, Inc., No. 09-1704, 2010 WL 3703808, *1 (M.D. Pa. Aug.26, 2010). In this case the plaintiff has not complied with the Local Rules, or this Court's Standing Practice Order, by filing a timely response to this motion. Therefore, these procedural defaults by the plaintiff compel the court to consider:
[A] basic truth: we must remain mindful of the fact that "the Federal Rules are meant to be applied in such a way as to promote justice. See Fed.R.Civ.P. 1. Often that will mean that courts should strive to resolve cases on their merits whenever possible. However, justice also requires that the merits of a particular dispute be placed before the court in a ...