UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

David Hartman, :

:

Plaintiff : No. 4:CV-08-2090

:

vs. : (Complaint Filed 11/19/08) 

:

: (Judge Muir)

LISA SMITH, et al., :

:

Defendants :

MEMORANDUM AND ORDER

April 23, 2010

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

This is a civil rights action filed pursuant to 42 U.S.C.

§ 1983 by David Hartman, an inmate confined in the State

Correctional Institution, Chester,(SCI-Chester), Pennsylvania.

The named defendants are PrimeCare Medical Inc., Lisa Smith,

Registered Nurse, Cumberland County Prison, and Fred

Culbertson, Work Release Manager. 

By Order dated June 10, 2009, defendants, PrimeCare Medical

Inc. and Lisa Smith were dismissed from the instant action. 

(Doc. 16). 

On March 1, 2010, the remaining defendant, Fred Culbertson,

filed a motion for summary judgment, along with a statement of

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material facts and brief in support of same. (Docs. 21-23). 

Previously, by Order dated April 1, 2010, plaintiff was

specifically directed to file a brief in opposition to

defendants’ motion for summary judgment. (Doc. 24). The Order

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. Id. 

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 v. 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 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) . . . .

2

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

Stackhouse v. 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 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 v. 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

Case 4:08-cv-02090-MM-DB Document 25 Filed 04/23/10 Page 3 of 6
plaintiff's complaint becomes a mechanical calculation . . .

[N]ot all of the Poulis factors1 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].").

Plaintiff was advised of the requirements of Local Rule 7.6

by the standard practice order issued in this case on November

19, 2008,and specifically directed to comply with Local Rule

7.6 by filing a brief in opposition. (See Doc. 5). 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,

1. The Court of Appeals in Poulis v. 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.

Case 4:08-cv-02090-MM-DB Document 25 Filed 04/23/10 Page 4 of 6
dismiss plaintiff's complaint both for failure to prosecute and

for failure to comply with a court order.

An appropriate Order accompanies this Memorandum Opinion.

s/Malcolm Muir 

MUIR

United States District Judge

Case 4:08-cv-02090-MM-DB Document 25 Filed 04/23/10 Page 5 of 6
UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

David Hartman, :

:

Plaintiff : No. 4:CV-08-2090

:

vs. : (Complaint Filed 11/19/08) 

:

: (Judge Muir)

LISA SMITH, et al., :

:

Defendants :

ORDER

April 23, 2010

ACCORDINGLY, 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 4:08-cv-02090-MM-DB Document 25 Filed 04/23/10 Page 6 of 6