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Kloss v. SCI Albion/Pa D.O.C.

United States District Court, W.D. Pennsylvania

June 7, 2017

Daniel A. Kloss, Plaintiff,
v.
SCI Albion/PA D.O.C. Defendants.

          ORDER ADOPTING THE REPORT AND RECOMMENDATION

          BARBARA J. ROTHSTEIN UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Before the Court is the Report and Recommendation ("R&R") of the Honorable Susan Paradise Baxter, United States Magistrate Judge, recommending that the Court dismiss Defendants Ms. Wagner and Mr. Santos from this case for Plaintiffs failure to prosecute. (ECF No. 148). Plaintiff timely filed objections to the R&R. (ECF No. 150). Having reviewed the Report and Recommendation, Plaintiffs objections thereto, the record of the case, and the relevant law, the Court HEREBY ADOPTS the Report and Recommendation to dismiss Defendants Ms. Wagner and Mr. Santos for Plaintiff s failure to prosecute.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff Daniel A. Kloss, an inmate incarcerated at the State Correctional Institution in Albion, Pennsylvania, filed a pro se complaint on November 23, 2015 naming Defendants Nancy Giroux ("Giroux"), SCI Albion, PA D.O.C, Valerie Kuziak ("Kuziak"), Dr. Robert Maxa ("Maxa"), Christine Zirkle ("Zirkle"), Ms. Wagner ("Wagner"), and Mr. Santos ("Santos"). (ECF No. 3). Plaintiff alleges sexual harassment, denial of medical treatment, violations of his First Amendment "Right for Religion, " and violation of the "Federal Disability Act." (ECF No. 3 (Compl. at ¶ 4)). The factual allegations involving prison officials Wagner and Santos are sparse. Plaintiff contends Wagner made an agreement with Plaintiff that Plaintiff could continue to have a fellow prisoner, Mr. Butler, as his cellmate and "live-in aide." Plaintiff claims Wagner "never did what she said she would do." (ECF No. 3 (Compl., ¶¶ 7, 8)). Additionally, Plaintiff avers Santos promised Plaintiff that Plaintiff would be returning to SCI Albion Unit B/B with cellmate Mr. Butler, afterbeing moved to McKean County prison for a hearing. (ECF No. 3 (Compl., ¶ 13)). However, Plaintiff and Mr. Butler were separated as cellmates "due to possible sexual relations with each other." (ECF No. 3 (Compl. ¶¶ 15, 16.))

         On December 28, 2015, Magistrate Judge Baxter issued an Order directing the U.S. Marshal to serve the complaint upon the Defendants in accordance with the required USM-285 "Process Receipt and Return" form, to be provided by Plaintiff for each individual Defendant. (ECF No. 6). Although service copies were received by the U.S. Marshal, they lacked the required documents to effectuate service on all Defendants. (ECF No. 11). Plaintiff was notified by the U.S. Marshal that Plaintiff only provided the required service forms for Defendants Giroux and SCI Albion/PA D.O.C. Thus, on April 6, 2016, Magistrate Judge Baxter issued an Order directing Plaintiff to provide the proper forms for each named Defendant by April 26, 2016, so that Defendants could be properly served with the complaint in this matter. (ECF No. 36). Subsequently, Plaintiff filed with the Clerk USM-285 forms for Defendants Kuziak, Maxa, Suesser and Zirkle. (ECF No. 143). No service instructions were ever provided for Defendants Wagner and Santos in compliance with the Court's Order of April, 6, 2016. Moreover, Plaintiff did not name Wagner and Santos as Defendants in the August 25, 2016 Proposed Amended Complaint. (ECF No. 86).

         Thereafter, on April 10, 2017, Magistrate Judge Baxter issued the R&R, recommending that this Court dismiss Defendants Wagner and Santos for Plaintiffs failure to prosecute due to Plaintiffs failure to provide the required USM-285 "Process Receipt and Return" service forms for Defendants Wagner and Santos. (ECF No. 148).

         Plaintiff filed timely objections to the R&R. (ECF No. 150). In his objections, Plaintiff avers it was never brought to his attention until the April 10, 2017 Order that Wagner and Santos were never served. Plaintiff states he submitted additional USM-285 forms in his August 25, 2016, Proposed Amended Complaint; however, Wagner and Santos were not named Defendants. (ECF No. 86). Plaintiff claims his failure to prosecute Defendants Wagner and Santos was an "honest mistake" and Plaintiff requests additional time to submit the proper paperwork for Wagner and Santos. (ECF No. 150).

         III. DISCUSSION

         A. Standard of Review

         When a party files objections to an R&R, the district court must review the Magistrate's findings denovo. United States v. Raddatz, 447 U.S. 667, 673 (1980); Fed.R.Civ.P. 72(b). To obtain de novo review, a party must timely file, and specifically identify portions of the R&R to which it objects. Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). The district court may accept, reject, or modify, in whole or in part, the findings and recommendations made by the Magistrate Judge. Raddatz, 447 U.S. at 673-74; see also 28 U.S.C. § 636(b)(1).

         B. Analysis

         Magistrate Judge Baxter recommends the dismissal of Defendants Wagner and Santos for Plaintiffs failure to prosecute. (ECF No. 148). Federal Rule of Civil Procedure 41(b) permits a district court to dismiss a plaintiffs case if the plaintiff fails to prosecute or comply with a court order. Briscoe v. Klaus, 538 F.3d 252, 258 (3d Cir. 2008). To assure that the "extreme" sanction of dismissal is reserved for occurrences where it is justly merited, the Third Circuit has established a six-factor balancing test. Poulis v. State Farm Fire & Casualty Co., 1M F.2d 863, 870 (3d Cir. 1984) (reiterating that dismissals with defaults are drastic sanctions termed "extreme") (citing Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976)). To determine whether dismissal is appropriate, the court must weigh: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Id. at 868-70. Not all of these factors are required to be met to warrant a dismissal. Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988). Applying the Poulis factors to the present matter, the Court adopts Magistrate Judge Baxter's recommendation that the Court dismiss Defendants Wagner and Santos for Plaintiff s failure to prosecute.

         1. The Extent of the Party's ...


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