IN THE UNITED STATES DISTRICT COURT

 FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ERIC HOUSTON, :

:

Plaintiff :

:

v. : CIVIL NO. 4:CV-14-1853

:

JOHN MCCULLAH, ET AL., : (Judge Brann)

:

Defendants :

MEMORANDUM

May 21, 2015

Background

This pro se civil rights action was iled in the United States District Court for the

Northern District of Florida by Eric Houston, an inmate presently confined at the

United States Penitentiary, Lewisburg, Pennsylvania (USP-Lewisburg). The matter

was subsequently transferred to this Court. Named as Defendants are USP-Lewisburg

Inmate John McCullah; Attorney Mark Fleming; and two USP-Lewisburg employees,

Physician’s Assistant Francis Fasciana and Nurse Heather. 

By Order dated April 9, 2015, dismissal was granted in favor of Defendants

Inmate McCullah and Attorney Fleming, and with respect to the Plaintiff’s claims

under the Americans with Disabilities Act (ADA). See Doc. 22. In addition, Plaintiff

was afforded an opportunity to file and serve an amended complaint solely regarding

his claims against Remaining Defendants Fasciana and Heather. The Order clearly

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advised Houston that his amended complaint must comply with Federal Rule of Civil

Procedure 8(e)1

 and not exceed twenty (20) pages in length. The Order specifically

forewarned Houston that failure to timely submit a proper amended complaint or

otherwise respond to the Order would result in dismissal of his action for failure to

prosecute.

Discussion

On April 29, 2015, Plaintiff filed what appears to be a proposed amended

complaint. See Doc. 23. It is initially noted that Houston has again submitted a

rambling at times illegible narrative. The proposed amended complaint, at least in

part, to be seeking relief pursuant to the Federal Tort Claims Act (FTCA). However,

the only proper defendant in an FTCA action is the United States of America which is

not listed as being a defendant in Houston’s proposed amended complaint. The

amended complaint also contains no indication that Plaintiff filed and exhausted an

administrative tort claim.

Second, Houston’s amended complaint next raises vague claims of mail

1 Federal Rule of Civil Procedure 8 requires that a complaint contain a short

and plain statement setting forth (1) the grounds upon which the court's jurisdiction

rests, (2) the claim showing that the pleader is entitled to relief, and (3) a demand for

judgment for the relief sought by the pleader. 

 Pro se parties are accorded substantial deference and liberality in federal court. 

Haines v. Kerner, 404 U.S. 519, 520 (1972). They are not, however, free to ignore the

Federal Rules of Civil Procedure. 

2

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interference and destruction, however, there are no factual assertions set forth which

could support a mail interference claim against Remaining Defendants Fasciana and

Heather, who are both employed in the prison’s Medical Department. The factually

unsupported assertions are likewise insufficient to set forth a discernible FTCA claim.

Next, the Amended Complaint describes PA Fasciana and Nurse Heather as

being “(most wanted) cyber terrorist listed defendants.” 2

 Doc. 23, ¶ IV(1). Houston

makes a vague contention that he has suffered “spine injury,” “right leg damaged

nerves,” and “weight loss” but he sets forth no facts connecting those purported

injuries to either of the Remaining Defendants.3

 Id. at p. 5. There are also facts

alleged showing that either of the Remaining Defendants violated the delayed or failed

to provide him with needed medical care in violation of the Eighth Amendment or that

the inmate was provided with negligent treatment as contemplated under the FTCA.

There is also a passing reference that the two Remaining Defendants are

employees of the Public Health Service. See id. In Cuoco v. Moritsugu, 222 F.3d 99,

107 (2nd Cir. 2000), the United States Court of Appeals for the Second Circuit

concluded that under 42 U.S.C. § 233(a), members of the Public Health Service were

2

 Nurse Heather’s last name is not provided.

3 The Original Complaint indicated that Inmate McCullah was diagnosed as

suffering from tuberculosis and appeared to contend that the was somehow placed at

risk of contracting that disease by the Defendants.. 

3

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absolutely immune from suit in a federal civil rights action if the injury for which

compensation is sought resulted from the performance of a medical or related function

while acting within the scope of their office or employment.4 Since it appears that

the Remaining Defendants may be commissioned members of the Public Health

Service, any attempt by Plaintiff to establish civil rights liability against them with

respect to the allegations that they failed to provide him with adequate care cannot

proceed.

If a plaintiff fails to prosecute or comply with a court order, the court may

dismiss the action, with prejudice. See Poulis v. State Farm Fire and Casualty Co.,

747 F.2d 863, 868 (3d Cir. 1984); Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d

Cir. 1991) (failure of a plaintiff to comply with a court’s specific direction to comply

with a local rule which required the filing of an opposing brief, warranted the

treatment of a motion to dismiss as being unopposed and subject to dismissal without

a merits analysis). In a similar case, the United States Court of Appeals for the Third

Circuit recognized that a district court “has the authority to dismiss a suit sua sponte

for failure to prosecute by virtue of its inherent powers and Federal Rule of Civil

Procedure 41(b)” when a litigant fails to comply with a court order directing him to

4 Section 233(a) adds that an FTCA claim is the exclusive remedy for the

performance of medically related functions by employees of the Public Health

Services.

4

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file an amended complaint. See Azubuko v. Bell National Organization, 243 Fed.

Appx. 728, 729 (3d Cir. 2007).

The Third Circuit in Poulis set forth six (6) factors which must be considered in

determining whether to dismiss an action with prejudice for failure to prosecute: (1)

extent of the party’s personal involvement; (2) prejudice to the opposing party by the

dilatoriness; (3) whether a history of dilatoriness existed; (4) whether the dilatoriness

was willful and in bad faith; (5) possible effectiveness of alternative sanctions; and (6)

the merit of the claim or defense. See Adams v. Trustees, NJ Brewery Trust Fund, 29

F.3d 863 (3d Cir. 1994). 

Adequate grounds have been established for the extreme sanction of dismissal.5

Even under the most generous treatment given to Plaintiff’s original and amended

complaints, those submissions simply fail to provide fair notice as to the nature of

Plaintiff’s claims as required under Rule 8. Houston was granted opportunity to

submit an amended complaint and was directed that his amended complaint must 

contain some factual specificity, i.e. describe the conduct which violated his rights,

5 Although Azubuko, 243 Fed. Appx. at 729, recognizes a “balancing under

Poulis is unnecessary” in cases such as the present matter where a litigant’s conduct

makes adjudication of the case impossible, other Third Circuit decisions indicate that

the Poulis analysis should be undertaken. See Hernandez v. Palakovich, 293 Fed.

Appx. 890, 894 (3d Cir. 2008) (Poulis factors must be considered before dismissing a

case as a sanction for failure to follow a court order).

5

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the time and the place of that conduct, and the identity of the responsible officials. 

However, as has been the case in other actions filed by Houston, he disregarded the

Court’s directive and again filed a vague, illegible at times narrative which sets no

facts which could support a claim under either the Eighth Amendment or the FTCA. 

As a result, a finding of dilatoriness and willful conduct is warranted. Other sanctions

are simply not a viable alternative because this matter simply cannot proceed without

the filing of an adequate amended complaint. 

Based upon the present circumstances, dismissal of Houston’s action without

prejudice for failure to prosecute is warranted under the standards announced in

Azubuko and Poulis. An appropriate Order will enter.

 s/ Matthew W. Brann 

Matthew W. Brann

United States District Judge

6

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