United States District Court, W.D. Pennsylvania
Daniel A. Kloss, Plaintiff,
SCI Albion/PA D.O.C. Defendants.
ORDER ADOPTING THE REPORT AND RECOMMENDATION
BARBARA J. ROTHSTEIN UNITED STATES DISTRICT JUDGE.
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
FACTUAL AND PROCEDURAL BACKGROUND
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.))
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).
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).
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.
Standard of Review
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).
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.
The Extent of the Party's ...