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Pearson v. Beard

United States District Court, W.D. Pennsylvania

August 31, 2017

ANTONIO PEARSON, Plaintiff
v.
SECRETARY BEARD, et al., Defendants

          REPORT AND RECOMMENDATION

          Keith A. Pesto, United States Magistrate Judge.

         Recommendation

         I recommend that the remaining defendants7 motion for summary judgment, ECF no. 97, be granted.

         Report

         Plaintiff, 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.

         Plaintiff 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.

         The 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.

         In an 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.

         The use 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 recommendation.

         In 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.

         I had 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.

         The 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.

         Poulis 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.

         There 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 ...


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