UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

ANTHONY OSBORNE, :

:

Plaintiff : No. 4:CV-09-1334

:

vs. : (Complaint Filed 7/13/09) 

:

: (Judge Muir)

JEFFREY A. BEARD, et al., :

:

Defendants :

MEMORANDUM AND ORDER

March 24, 2010

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Plaintiff, an inmate presently confined in the State

Correctional Institution, Frackville, Pennsylvania, filed this

civil rights action pursuant to 42 U.S.C. § 1983. The named

defendants are Secretary Jeffrey Beard, Superintendent Robert

Shannon, Margaret Gordon, a Dietary Management Services

Specialist; and Vicky Stanishefski, Health Care Administrator.

Plaintiff complains that defendants have been “interfering with

and delaying” implementation of a medical diet that had been

prescribed to plaintiff by Dr. Stanish in connection with his

treatment of plaintiff’s hypoglycemia. (Doc. 16, amended

complaint). 

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On October 30, 2009, defendants filed a motion to dismiss

the plaintiff’s amended complaint, and a brief in support of

same. (Docs. 24, 25). Plaintiff's brief in opposition to

this motion is overdue. 

By Order dated December 2, 2009, plaintiff was directed to

file a brief in opposition to defendants’ motion within twenty

(20) days of the date of the Order. (Doc. 29). 

On December 17, 2009, plaintiff filed a letter with the

court, stating the he has been committed to the mental health

unit and has no access to the law library, so as to be able to

formulate a brief in opposition to defendants’ motion to

dismiss. (Doc. 31). Thus, plaintiff sought an additional

ninety (90) day enlargement of time. Id. 

Because defendants’ motion to dismiss is based primarily

on the factual issue of plaintiff’s failure to exhaust

administrative remedies, the use of the law library is not

required. Thus, by Order dated February 25, 2010, the Court,

once again, directed plaintiff to file a brief in opposition. 

M.D. Pa. Local Rule 7.6. 

Generally, a dispositive motion may not be granted merely

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

2

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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) . . . .

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

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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

plaintiff's complaint becomes a mechanical calculation . . .

[N]ot all of the Poulis factors1 need be satisfied in order to

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.

4

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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 July 13,

2009,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.

An appropriate Order accompanies this Memorandum Opinion.

s/Malcolm Muir 

MUIR

United States District Judge

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UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

ANTHONY OSBORNE, :

:

Plaintiff : No. 4:CV-09-1334

:

vs. : (Complaint Filed 7/13/09) 

:

: (Judge Muir)

JEFFREY A. BEARD, et al., :

:

Defendants :

ORDER

March 24, 2010

For the reasons set forth in the accompanying Memorandum,

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. Plaintiff’s motion for appointment of

counsel (Doc. 33) is DISMISSED as moot. 

3. The Clerk of Court shall CLOSE this case.

4. 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

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