United States District Court, E.D. Pennsylvania
G. SMITH, J.
pro se plaintiff commenced this action for alleged
damages after he received an infection that he believes
resulted from two haircuts he received while incarcerated in
the Philadelphia Prison System. Previously, the court
dismissed the plaintiff's claims against all of the named
defendants except for one. Recently, the court received
notice from the remaining defendant that the plaintiff failed
to appear for his scheduled deposition and failed to respond
to this defendant's written discovery requests. As these
failures are emblematic of the plaintiff's failure to
comply with the court's deadlines and to otherwise
prosecute this matter, the court provided the plaintiff with
a period of time to indicate whether he intended to prosecute
this matter or whether the court should dismiss the case for
lack of prosecution. Predictably, the plaintiff failed to
file a response.
discussed in more detail below, the court has considered the
factors set forth in Poulis v. State Farm Fire and
Casualty Co., 747 F.2d 863 (3d Cir. 1984) and finds that
they weigh in favor of dismissing this action for lack of
prosecution under Rule 41(b) of the Federal Rules of Civil
PROCEDURAL HISTORY 
pro se plaintiff, Rodney Pearson, commenced this
action by filing an application to proceed in forma
pauperis and a complaint against the Philadelphia Prison
System on January 8, 2016. Doc. No. 1. At the time of the filing
of these documents, the plaintiff was apparently incarcerated
in the House of Correction in Philadelphia.
reviewing the application and the proposed complaint as
required under 28 U.S.C. § 1915, the court entered an
order on February 4, 2016, which (1) granted the application
to proceed in forma pauperis, and (2) dismissed the
complaint without prejudice to the plaintiff filing an
amended complaint within 30 days of the date of the order.
Order, Doc. No. 3. The plaintiff responded to this order by
filing another complaint that the Clerk of Court docketed as
a new action at Civil Action No. 16-770. As the additional
complaint pertained to the same subject matter as the
complaint in this action and its exhibits contained
handwritten notes referencing Civil Action No. 16-240, the
court entered an order on February 22, 2016, which
consolidated the actions and directed the Clerk of Court to
file the complaint at Civil Action No. 16-770 as an amended
complaint in this case. Order, Doc. No. 5. On that same date,
the Clerk of Court docketed the amended complaint. Doc. No.
the amended complaint, the plaintiff now asserts 42 U.S.C.
§ 1983 claims against the originally-named defendant,
the Philadelphia Prison System, and numerous newly-named
defendants, including the City of Philadelphia (the
“City”), Mayor Jim Kenney (in his official and
individual capacities), Superintendent Douglas Giorla (in his
official and individual capacities), Warden William Lawton
(in his official and individual capacities), Major Edward
Miranda (in his official and individual capacities), and
Sergeant Gangemi (in his official and individual capacities),
Corizon Health Care, Inc. (“Corizon”), and Quan
Bang, R.N. (“Bang”).Amended Compl. at 1.
Regarding the substance of his claims, the plaintiff claims
that while housed in the Philadelphia Prison System as a
pretrial detainee in November 2015, he received two haircuts
from individuals using unsanitary hair-cutting equipment.
Id. at 2-3. By December 2015, the plaintiff noticed
an infection on his head in the nature of “a
‘bubble' measuring 2 cm in diameter.”
Id. at 3. The plaintiff claims that despite his
repeated written requests for medical attention, he was not
seen until two or three weeks after his requests.
plaintiff alleges that during this medical inspection Bang
evaluated the infection and his head, informed him that he
would be fine, and recommended treatment by draining the
infected area. Id. Although Bang recommended
draining the infected area, Corizon denied treatment because
it was too expensive and informed the plaintiff that unless
it became an open wound, he would have to wait until his
release to have the procedure completed. Id.
he was still in pain, the plaintiff continued to submit sick
calls to prison personnel. Id. In response to
multiple sick calls, Sergeant Gangemi pursued disciplinary
action against the plaintiff and issued a written
infraction. Id. The plaintiff's condition
remained untreated. Id.
reviewing these allegations in the amended complaint under
section 1915, the court entered an order on May 26, 2016,
which, inter alia, dismissed with prejudice the
plaintiff's claims against the Philadelphia Prison System
because it is not a person subject to suit under section
1983. Order at 1, Doc. No. 7. The court also specially
appointed the Clerk of Court to serve written waiver of
service requests upon the defendants and, if the defendants
did not execute and return waivers of service, the court
directed the Clerk of Court to transmit the summonses and a
copy of the amended complaint to the United States
Marshal's Service for immediate service under Rule 4(c)
of the Federal Rules of Civil Procedure. Id. at 2.
docket entries in this case show that the Clerk of Court sent
waivers of service to the defendants on May 26, 2016,
provided the plaintiff with a notice of this mailing, and
advised him that if the defendants did not waive service by
June 27, 2016, the Clerk would forward the amended complaint
to the Marshal's Service to effect service. Doc. Nos. 8,
9. None of the defendants waived service and on June 28,
2016, the Clerk of Court issued summonses for the defendants
and forwarded them to the Marshal's Service. See
Third Unnumbered Docket Entry After Doc. No. 12.
the period that the Clerk of Court awaited the possible
execution of the waivers of service, the plaintiff filed a
motion to appoint counsel and a notice of change of address
that the Clerk of Court docketed on June 2, 2016. Doc. Nos.
11, 12. The notice of change of address indicated that prison
officials had transferred the plaintiff from the Philadelphia
Prison System to the Montgomery County Correctional Facility.
court granted the motion seeking the appointment of counsel
and referred the case to the Prisoner Civil Rights Panel for
a period of 60 days on June 8, 2016. Doc. No. 12. Despite the
prior notice of change of address, personnel at the
Montgomery County Correctional Facility returned mail
containing the June 8, 2016 order sent to the plaintiff there
because it was “unable to forward.” See
Second Unnumbered Docket Entry After Doc. No. 12.
13, 2016, Corizon filed a motion for an extension of time to
respond to the amended complaint. Doc. No. 14. The court
granted the motion on July 14, 2016, and Corizon filed a
motion to dismiss the amended complaint on July 17, 2016.
Doc. Nos. 15, 16.
the court was attempting to discern why the Montgomery County
Correctional Facility was returning mail sent to the
plaintiff there, the court was also administrating another
action filed by the plaintiff against various members of the
City of Philadelphia Police Department and docketed at Civil
Action No. 16-530. In that action, the court had scheduled a
Rule 16 initial pretrial conference via telephone to occur on
July 7, 2016. During the telephone conference, defense
counsel for the defendant police officers informed the court
that she was unable to get the plaintiff on the telephone
conference because he was apparently released from prison in
June. Shortly after the conference, defense counsel acquired
the plaintiff's new address and phone number.
this additional information, the court entered an order in
this case on July 20, 2016, which (1) noted that the
plaintiff failed to comply with his obligation under Local
Civil Rule 5.1(b) to file a change of address with the Clerk
of Court, (2) ordered the plaintiff to file a notice of
change of address with the Clerk of Court within 21 days of
the date of the order, and (3) directed the Clerk of Court to
send a copy of the order to the address acquired by defense
counsel in Civil Action No. 16-530. Doc. No. 17. During this
21-day period, the City and Mayor Kenney jointly filed a
motion to dismiss the amended complaint on July 29, 2016.
Doc. No. 18. On that same date, Sergeant Gangemi separately
filed an answer with affirmative defenses to the amended
complaint. Doc. No. 19.
plaintiff never filed a change of address as ordered by the
court. In addition, 60 days passed without any member of the
Prisoner Civil Rights Panel having agreed to represent the
plaintiff in this matter. As such, the court entered an order
on August 15, 2016, which (1) again required the plaintiff to
file a notice of change of address with the Clerk of Court by
no later than August 24, 2016, (2) required the plaintiff to
inform the court no later than August 24, 2016, whether he
intended to continue to prosecute this matter in a pro
se capacity despite no member of the Prisoner Civil
Rights Panel having agreed to take his case, (3) directed
Corizon to serve a copy of its motion to dismiss on the
plaintiff at his apparent new address, and (4) informed the
plaintiff that if he did not comply with the requirements of
the order, the court may dismiss the action without further
notice. Doc. No. 21.
again, the plaintiff never filed a notice of change of
address or informed the court as to whether he was going to
proceed pro se. Corizon filed a document on
September 13, 2016, suggesting that the court follow-through
on the warning to the plaintiff and dismiss the action due to
these failures. Doc. No. 24. Instead of dismissing the case,
the court scheduled an initial pretrial conference for
October 4, 2016. Doc. No. 25.
October 4, 2016, the court held an initial pretrial
conference during which the plaintiff and counsel for the
responding (and served) parties appeared. During the
conference, the plaintiff expressed concerns about his
ability to understand the litigation process and the
documents he received, and he acknowledged that he had not
filed responses to some of the documents he received.
Nonetheless, the plaintiff indicated a desire to continue
prosecuting the case in his pro se capacity. The
court also informed the plaintiff that he needed to respond
to the pending motions to dismiss (since any responses were
well overdue), that he needed to timely respond to
court-ordered deadlines, motions and other requests, and that
his apparent failure to provide the Marshal's Service
with completed USM-285 forms precluded it from serving the
four then-unserved defendants, Superintendent Douglas Giorla,
Warden William Lawton, Major Edward Miranda, and Quan Bang,
court then entered an order on October 5, 2016, which
required the plaintiff to fully complete the USM-285 forms
and return them to the Marshal's Service. Order, Doc. No.
27. In the order, the court referenced some of the discussion
that occurred during the initial pretrial conference,
including the court receiving representations from the
Marshal's Service that it had notified the plaintiff on
three occasions (July 8, 2016, August 10, 2016, and September
26, 2016) about his failure to provide the completed USM-285
forms; yet, the plaintiff failed to complete and return them.
Id. at n.1. The court also provided the plaintiff
with the addresses for the Marshal's Service and the
Clerk of ...