1. Gurley was released from confinement on August 26, 2004

and currently resides at 328 Oak Street, Pottstown, Pa. 

2. By order dated September 17, 2004, defendants Cerullo,

Haladay and Klem were dismissed from the action. (Doc. No.

26). 

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

JOHN GURLEY, :

:

Plaintiff : No. 4:CV-04-0202

:

vs. : (Complaint Filed 01/28/04) 

:

ROBERT MOCZULSKI, et al., : (Judge Muir)

:

Defendants :

Order

August 8, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Plaintiff, John Gurley, an inmate formerly confined in

the Mahanoy State Correctional Institution, Frackville,

Pennsylvania1 (“SCI-Mahanoy”), filed this civil rights action

pursuant to 42 U.S.C. § 1983. He alleges a denial of

adequate medical treatment. Gurley seeks damages as well as

injunctive relief. On May 6, 2005, Dr. Robert Moczulski, the

only remaining defendant in this action2, filed a motion for

Case 4:04-cv-00202-MM-DB Document 36 Filed 08/08/05 Page 1 of 5
2

summary judgment, along with a statement of material facts

and supporting brief. (Doc. Nos. 29-32). 

Previously, by orders dated June 16, 2005 and July 12,

2005, plaintiff was specifically directed to file a brief in

opposition to defendant's motion for summary judgment. (Doc.

Nos. 33, 34). The orders forewarned plaintiff that if he

failed to file a brief within the required time, we would

consider dismissing plaintiff's complaint under the authority

of Rule 41(b) for failure to prosecute and comply with a

court order. 

Generally, a dispositive motion may not be granted merely

because it is unopposed. However, when a plaintiff fails to

prosecute or comply with a court order, the court may dismiss

the action pursuant to Rule 41(b) of the Federal Rules of

Civil Procedure. Link vs. Wabash Railroad Co., 370 U.S. 626,

629 (1962). In Link, the Supreme Court stated:

The authority of a federal trial court to

dismiss a plaintiff's action with

prejudice because of his failure to

prosecute cannot seriously be doubted.

The power to invoke this sanction is

necessary in order to prevent undue delays

in disposition of pending cases and to

avoid congestion in the calendars of the

District Courts. The power is of ancient

Case 4:04-cv-00202-MM-DB Document 36 Filed 08/08/05 Page 2 of 5
3

origin, having its roots in judgments of

nonsuit and non prosequitur entered at

common law . . . . It has been expressly

recognized in Federal Rule of Civil

Procedure 41(b) . . . .

Id. at 629-30. The Court of Appeals for this circuit held in

Stackhouse vs. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991)

that a district court should not dismiss a civil rights

complaint brought by a former prisoner for failure to comply

with a local rule requiring a response to a dispositive

motion without examining the merits of the complaint.

However, the Court of Appeals did not vitiate the Supreme

Court's decision in Link, Rule 41(b) of the Federal Rules of

Civil Procedure or the inherent power of the district court

to impose the sanction of dismissal for failing to comply

with a court order. Instead, the Court of Appeals

specifically stated:

In reaching our result, we do not suggest

that the district court may never rely on

the local rule to treat a motion to

dismiss as unopposed and subject to

dismissal without a merits analysis.

There may be some cases where failure of a

party to oppose a motion will indicate

that the motion is in fact not opposed,

particularly if the party is represented

by an attorney and in that situation the

rule may be appropriately invoked. Nor do

Case 4:04-cv-00202-MM-DB Document 36 Filed 08/08/05 Page 3 of 5
3. The Court of Appeals in Poulis vs. State Farm Fire and

Casualty Co., 747 F.2d 863 (3d Cir. 1984) identified six

factors that are appropriate to consider before dismissing a

case for the plaintiff's late filing of a pretrial

statement. The six factors are: (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.

4

we suggest that if a party fails to comply

with the rule after a specific direction

to comply from the court, the rule cannot

be invoked.

Id. at 30 (emphasis added); see also Mindek vs. Rigatti, 964

F.2d 1369, 1373 (3d Cir. 1992) ("Poulis did not provide a

magic formula whereby the decision to dismiss or not to

dismiss a plaintiff's complaint becomes a mechanical

calculation . . . [N]ot all of the Poulis factors3 need be

satisfied in order to dismiss a complaint. Instead, the

decision must be made in the context of the district court's

extended contact with the litigant. Ultimately, the decision

to dismiss constitutes an exercise of the district court

judge's discretion and must be given great deference by [the

Court of Appeals].").

Case 4:04-cv-00202-MM-DB Document 36 Filed 08/08/05 Page 4 of 5
Although the deadlines for filing an opposing brief have

passed, plaintiff has neither filed a brief in opposition to

defendant's motion nor has he requested an extension of time

in which to do so. Plaintiff was advised of the requirements

of Local Rule 7.6 by the standard practice order issued in

this case on January 29, 2004, and specifically directed on

two occasions to comply with Local Rule 7.6 by filing a brief

in opposition. The court finds that the dilatoriness of

plaintiff outweighs any of the other considerations set forth

in Poulis. The court will, pursuant to Rule 41(b) of the

Federal Rules of Civil Procedure, dismiss plaintiff's

complaint both for failure to prosecute and for failure to

comply with a court order.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Pursuant to Rule 41(b) of the Federal

Rules of Civil Procedure, plaintiff's

complaint is dismissed for failure to

prosecute and comply with a court order.

2. The Clerk of Court shall close this case.

3. Any appeal from this order will be deemed

frivolous, without probable cause and not

taken in good faith.

 s/Malcolm Muir 

 

MUIR

United States District Judge

Case 4:04-cv-00202-MM-DB Document 36 Filed 08/08/05 Page 5 of 5