United States District Court, W.D. Pennsylvania
REPORT AND RECOMMENDATION
A. Pesto, United States Magistrate Judge.
recommend that the remaining defendants7 motion for summary
judgment, ECF no. 97, be granted.
formerly an inmate at S.C.I. Somerset, filed a complaint in
2009 over events that plaintiff alleged happened during his
stay at that prison. ECF no. 3. He named as defendants 3 9
employees of the Pennsylvania Department of Corrections.
Plaintiff then filed several motions for extension of time to
file an amended complaint, which were granted, and filed an
amended complaint at ECF no. 16. The amended complaint named
46 defendants. I screened the amended complaint as required
by 2 8 U.S.C.§ 1915A and ordered service of portions of
the amended complaint on defendants Fisher, Reams, Mulligan,
Karl, and Kot, and recommended that the balance of the
amended complaint be dismissed for failure to state a claim.
ECF no. 17. The surviving claims were that defendant Kot had
violated the Eighth Amendment by assaulting plaintiff on
February 3, 2007, and that the other defendants had violated
the First Amendment by removing plaintiff from his prison job
(defendants Fisher, Reams, and Mulligan in February 2 0 07)
and removing or preventing plaintiff from getting another
prison job (defendant Karl in October 2008) in retaliation
for filing a complaint (Pearson v. Shawley, Civil
Action No. 858-2006) in the Court of Common Pleas of Somerset
County, and filing Grievance No. 177456 within the
Pennsylvania Department of Corrections administrative remedy
system. Amended Complaint, ¶ 1.
sought and was granted extension of time to file objections
to my recommendation that portions of his amended complaint
be dismissed but did not file timely objections. After a
second motion for extension of time to file objections was
denied, ECF no. 23, plaintiff filed untimely objections
anyway. ECF no. 24. Plaintiff provided directions for service
on the five defendants that I had ordered served, directions
that were incorrect. See ECF no. 30. Plaintiff
eventually provided a correct set of directions for
defendants Reams, Mulligan, Karl, and Kot. Those defendants
were served, appeared by counsel, and moved to dismiss the
complaint for failure to state a claim and as barred by the
statute of limitations. ECF no. 46. Plaintiff did not file a
timely response, and I denied a motion for extension of time
that was filed after the due date for a response. I
recommended that the motion to dismiss be granted because the
claims alleged over events in February 2007 were untimely and
the October 2008 retaliation claim failed to allege any
plausible causal connection between the protected activity
alleged and the adverse action alleged. ECF no. 50. Plaintiff
did not file timely objections, although he did file untimely
objections with a motion to consider them filed nunc pro
tunc, after the amended complaint was dismissed. ECF no.
52, ECF no. 53.
court adopted both of my ' recommendations and dismissed
the amended complaint both as to the defendants I had
recommended be dismissed after screening and as to the served
defendants who had moved to dismiss, ECF no. 51. Plaintiff
filed a motion to reconsider, ECF no. 55, which was referred
to me and which I recommended be denied. ECF no. 57.
Plaintiff filed a notice of appeal before that recommendation
was considered, but did not file timely objections to the
recommendation itself. The court disposed of the motion to
reconsider, ECF no..61, and the matter proceeded on appeal.
Plaintiff then filed untimely objections to the Report and
Recommendation. ECF no. 62.
opinion by Judge Sloviter, a panel of the Court of Appeals
decided as a matter of first impression that the time spent
by an inmate exhausting administrative remedies tolled
Pennsylvania's applicable statute of limitations period,
Pearson v. Secretary Department of/ Corrections, 775
F.3d 598 (3d Cir.2015), and that plaintiff had alleged
adequately that his alleged discharge from a job in October
2008 was caused by retaliation for filing grievances.
of force claim and two retaliation claims were returned for
further proceedings and the four defendants who had been
served filed an Answer. ECF no. 82. The plaintiff filed an
"Objection" to the Answer, ECF no. 84, disagreeing
with the footnote in the Answer that assumed that defendant
Fisher had been dismissed from the case. The background to
that dispute is as follows: before the case ever proceeded to
the Court of Appeals I had notified plaintiff that his
service instructions for defendant Fisher were incorrect and
had directed him to supply correct ones. ECF no. 44.
Plaintiff did not respond to this order before the complaint
was dismissed. On remand, plaintiff sought an order directing
the Marshal to locate and serve defendant Fisher. ECF no. 85.
I denied this motion at ECF no. 87 for the reasons stated
therein, and in June 2 016 issued a pretrial order setting
discovery deadlines. ECF no. 90. In the pretrial order I
formally recommended that Fisher be dismissed as a defendant
for failure to prosecute unless plaintiff provided directions
for service. No objections have ever been filed to that
August 2016 I noticed that despite the activity in the matter
the case was not appearing on my CM/ECF reports because the
case had not formally been reopened. I had previously noted
that although the appellate filing fee had been paid in part
not a penny of the filing fee for the complaint had been paid
to this court, and therefore in my pretrial order I had
ordered plaintiff to provide an updated inmate account
statement. Plaintiff did not respond at all to that order. I
asked the Clerk to reopen the case and filed an Report and
Recommendation recommending that the matter be dismissed for
failure to prosecute unless plaintiff sent an updated inmate
account statement. ECF no. 93. Plaintiff did file timely
objections to this recommendation, claiming that I was
"harassing" him, ECF no. 94, but he did eventually
provide the inmate account statement. ECF no. 96.
thought that perhaps the failure to receive any payment of
the filing fee was because my order had not followed
plaintiff as he was transferred between prisons, and so I
re-sent my standard withdrawal order to plaintiff's
current prison, see ECF no. 95. But the inmate
account statement shows that plaintiff has regular deposits
to his account and that filing fees for other civil cases are
being withdrawn from that account. Why no payments have ever
been made by plaintiff on this case remains unexplained.
following month the remaining defendants filed their motion
for summary judgment, ECF no. 97, with a brief in support ECF
no. 98, a statement of material facts, ECF no. 99, and an
appendix, ECF no. 100. Plaintiff has filed no response.
v. State Farm Fire and Casualty Co., 747 F.2d 863, 868
(3d Cir.1984), sets forth factors the court must consider in
dismissing a case as a sanction for failure to prosecute: (1)
the extent of the party's personal responsibility; (2)
the prejudice to the adversary; (3) any history of delay; (4)
whether the conduct of the party or attorney at fault was
willful or in bad faith; (5) the effectiveness of alternative
sanctions; and (6) the meritoriousness of the claim or
defense. Plaintiff is pro se and bears all the
responsibility for his failure to respond as directed in the
pretrial scheduling order. The prejudice to the defendants
that were served is that they have been put to the time and
expense of preparing a dispositive motion. There is already a
pending recommendation that the complaint be dismissed
against defendant Fisher that plaintiff has never objected
to. The prejudice to Fisher from any attempt by plaintiff to
bring him into this litigation ten years after the events
that allegedly occurred is obvious.
is a history of delay by plaintiff, either from repeated
requests for extension of time, or from outright disregard of
orders until plaintiff is confronted with the prospect of
dismissal for failure to prosecute. I have no idea whether
plaintiff's current lack of response is willful or
negligent disregard of ...