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Dr. Zaloga was dismissed as a defendant January 29, 2009. 

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SHAKIRA STATEN, individually :

and SHAKIRA STATEN, natural :

mother of SAMIYAH STATEN, :

a minor, :

: Civil Action No. 4: 07-CV-1329

Plaintiffs, :

: (Judge McClure)

v. :

:

LACKAWANNA COUNTY, et. al. :

:

Defendants :

MEMORANDUM

June 15, 2010

BACKGROUND: 

On July 23, 2007, Shakira Staten, individually and as the natural mother of

Samiyah Staten, a minor, initiated this lawsuit, through counsel, by the filing of a

complaint pursuant to 42 U.S.C. § 1983 against defendants: 1) Lackawanna

County; 2) Lackawanna County Prison; 3) Warden Janin Donate; 4) Corrections

Office John Doe; 5) Corrections Officer Jane Doe One; 6) Corrections Officer Jane

Doe Two; 7) Correction Care, Inc.; 8) Dr. Edward Zaloga1

; and 9) Nurse Jane Doe. 

Plaintiff alleges that the defendants acted with deliberate indifference to the serious

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medical needs of both herself and her child with respect to the child’s birth in a cell

at the Lackawanna County Prison. 

On February 1, 2010, defendant Correctional Care, Inc. filed a motion for

summary judgment and a separate statement of material facts. (Rec. Doc. Nos. 70

and 71). It filed a supporting brief February 11, 2010. (Rec. Doc. No. 94). 

Plaintiff’s opposing brief was due February 28, 2010. Neither an opposing brief

nor a responsive statement of material facts was filed by plaintiff. Correctional

Care, Inc. filed a supplemental motion and brief to its motion for summary

judgment asserting that its summary judgment motion should be deemed to be

unopposed and granted pursuant to Middle District Local Rule 7.6. (Rec. Doc.

Nos. 97 and 98). 

On February 1, 2010, defendant Nurse Jane Doe filed a motion for summary

judgment, supporting brief and a separate statement of material facts. (Rec. Doc.

Nos. 72, 81 and 82). Plaintiff’s opposing brief was due February 18, 2009. Neither

an opposing brief nor a responsive statement of material facts was filed by

plaintiff. Nurse Jane Doe filed a supplemental motion and brief to her motion for

summary judgment asserting that her summary judgment motion should be deemed

to be unopposed and granted pursuant to Middle District Local Rule 7.6. (Rec.

Doc. Nos. 99 and 100). 

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On February 8, 2010, defendants Lackawanna County, Lackawanna County

Prison, Warden Janine Donate, Corrections Officer John Doe, and Correction

Officers Jane Doe 1 and 2 filed a motion for summary judgment and a separate

statement of material facts. (Rec. Doc. Nos. 91 and 92). They filed a supporting

brief on February 22, 2010. (Rec. Doc. No. 96). Plaintiff’s opposing brief was due

March 11, 2010. Neither an opposing brief nor a responsive statement of material

facts was filed by plaintiff. 

On March 11, 2010, plaintiff filed a motion to extend time to respond to the

motions for summary judgment. (Rec. Doc. No. 103). Both Correctional Care,

Inc. and Nurse Jane Doe filed oppositions to the motion. (Rec. Doc. Nos. 104 and

105). 

We refused to grant the supplemental motions for summary judgment

requesting that the court grant summary judgment based on plaintiff’s failure to file

timely opposing briefs. Additionally, although plaintiff’s motion for extension of

time was filed well after the date opposing briefs were due, on March 15, 2010, we

granted plaintiff’s motion for an extension and allowed fourteen days to file

opposing briefs and separate statements of material facts to each motion for

summary judgment. In our March 15th order, we warned plaintiff that if plaintiff

did not comply with that order, the case would be dismissed. 

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Plaintiff’s opposing briefs and statements of material facts were due March

29, 2010. Plaintiff did not file opposing briefs and statements of material facts

opposing the three motions for summary judgment. On March 30, 2010,

defendants Correction Care, Inc. and Nurse Jane Doe filed separate motions to

dismiss for plaintiff’s failure to comply with our March 15th order. (Rec. Doc. No.

109 and 110). Because plaintiff did not file opposing briefs and separate

statements of material facts and failed to comply with our March 15th order, on

April 2, 2010 we granted the motions to dismiss and entered final judgment in

favor of all defendants. (Rec. Doc. No. 108 Accordingly, we denied the motions

for summary judgment as moot. (Id). 

On April 5, 2010, plaintiff filed a “Motion to Open and/or for

Reconsideration of Motions for Summary Judgment and Enlargement of Time to

File Memorandum.” (Rec. Doc. No. 114). Plaintiff did not file a supporting brief

as required by Middle District Local Rule 7.10. The respective defendants filed

responses and opposing briefs. (Rec. Doc. Nos. 115, 116, 117, 119, 121 and 122). 

Plaintiff did not file a reply brief. 

Now, for the following reasons, we will grant plaintiff’s motion for

reconsideration. However, on reconsideration, our prior decision stands, and final

judgment will not be vacated. 

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DISCUSSION: 

Middle District Local Rule 7.10 requires motions for reconsideration to be

“accompanied by a supporting brief and filed within fourteen (14) days after the

entry of the order concerned.” M.D. Pa. L.R. 7.10. Local Rule 7.5 states that if the

supporting brief is not timely filed, “the motion shall be deemed to be withdrawn.” 

M.D. Pa. L. R. 7.5. We should, as defendants suggest, deem the motion for

consideration to be withdrawn. Nevertheless, we will proceed to consider the

motion on its merits. 

A motion for reconsideration is a device of limited utility. Its purpose is to

correct manifest errors of law or fact or to present newly discovered evidence.

Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Accordingly, a party

seeking reconsideration must demonstrate at least one of the following grounds

prior to the court’s altering, or amending, a standing judgment: (1) an intervening

change in the controlling law; (2) the availability of new evidence that was not

available when the court entered judgment; or (3) the need to correct a clear error

of law or fact or to prevent manifest injustice. Max's Seafood Café v. Quinteros,

176 F.3d 669, 677 (3d Cir. 1999) (citing North River Ins. Co. v. CIGNA

Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). A motion for

reconsideration is appropriate in instances where the court has “patently

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misunderstood a party, or has made a decision outside the adversarial issues

presented to the Court by the parties, or has made an error not of reasoning but of

apprehension.” Rohrbach v. AT & T Nassau Metals Corp., 902 F.Supp. 523, 527

(M.D. Pa. 1995), vacated in part on other grounds on reconsideration, 915 F.Supp.

712 (M.D. Pa. 1996) (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc.,

99 F.R.D. 99, 101 (E.D.Va.1983)). It may not be used as a means to reargue

unsuccessful theories, or argue new facts or issues that were not presented to the

court in the context of the matter previously decided. Drysdale v. Woerth, 153 F.

Supp. 2d 678, 682 (E.D. Pa. 2001). “Because federal courts have a strong interest

in the finality of judgments, motions for reconsideration should be granted

sparingly.” Continental Cas. Co. v. Diversified Indus., Inc., 884 F.Supp. 937, 943

(E.D. Pa. 1995).

Plaintiff asserts that we should grant the motion to prevent manifest

injustice. In plaintiff’s (untimely) February 11, 2010 motion, she requested that

we grant her until April 15 to file her opposing briefs. We granted plaintiff’s

motion, but only allowed fourteen days for plaintiff to file her opposing briefs. In

the current motion to reconsider, plaintiff’s counsel argues that he is a busy solo

practitioner and he did not read our order and assumed he had until April 15, 2010

to file his opposing briefs. We will grant the motion for reconsideration and we

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will reconsider our entry of final judgement against plaintiff. 

 Rule 41(b) of the Federal Rules of Civil Procedure governs the imposition of

sanctions for the failure to comply with a court order. Specifically, if a plaintiff

fails to comply with a court order, a defendant may move to dismiss the action and

the dismissal acts as an adjudication on the merits. 

The Third Circuit has set out a test to determine whether the extreme

sanction of default judgment is appropriate. Poulis v. State Farm and Fire Casualty

Co., 747 F.2d 863, 868 (3d Cir. 1984). This case sets out six factors to consider

when deciding whether to enter default judgment as a sanction: (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 [or entry of default

judgment]; and (6) the meritoriousness of the claim or defense. Id. at 868; see also

Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1148 (3d Cir. 1990) (discussing

sanctions, Poulis factors, and authority of entering default judgment under Rule 55

for failure to answer or otherwise defend).

The first factor requires the court to determine whether plaintiff herself is

responsible for the dilatory conduct. There has been no suggestion by any party

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that anyone other than plaintiff’s counsel was responsible for the late filings. 

The second and third factors require us to examine whether there was

prejudice to the multiple defendants by plaintiff’s counsel’s conduct and the

history of dilatoriness. Plaintiff’s opposing briefs to both Correctional Care Inc.’s

and Nurse Jane Doe’s motion for summary judgment were due on March 11. When

plaintiff’s counsel failed to file briefs opposing summary judgment and responsive

statements of material facts, those defendants had to file supplemental motions on

the issue of plaintiff’s failure to file opposing briefs. Then, although plaintiff’s

request for an extension of time was late respective to these two aforementioned

defendants, we granted an extension of fourteen days. Our order clearly states four

times that plaintiff had fourteen days to file opposing briefs and responsive

statements of material fact. The order also warns twice that if plaintiff did not

comply with the order, the court would grant the summary judgment motions

without a merits analysis. Additionally, the ECF summary of the order, which was

both emailed to plaintiff and displayed on the docket sheet on the ECF website,

also clearly indicates the fourteen day extension with the warning that failure to

comply with the order would result in granting all of the motions for summary

judgement without a merits analysis. So when, in light of all of this, plaintiff again

failed to file the required documents, the attorneys for Correction Care, Inc. and

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Nurse Jane Doe, were once again required to expend resources to file motions to

dismiss for plaintiff’s lack of compliance with our court order. Additionally, this

instance was not the first time plaintiff’s counsel neglected to file a brief opposing

a dispositive motion. Plaintiff’s counsel had requested an extension to respond to a

motion to dismiss by defendants Zaloga, Corrections Care, Inc. and Nurse Jane

Doe, and yet again did not file an opposing brief to the motion, even after the

requested extension was granted. 

The fourth factor requires us to examine whether the conduct of the attorney

was willful or in bad faith. There is no suggestion that the conduct of the attorney

was willful or in bad faith. 

The fifth factor requires us to look at the effectiveness of other sanctions. 

We could have imposed on plaintiff’s counsel the costs of defendants’ briefing. 

However, we did not do so because of the cumulative effect of the other reasons

we have set forth. 

Finally, the last factor requires us to look at the meritoriousness of the claim. 

“A claim, or defense, will be deemed meritorious when the allegations of the

pleadings, if established at trial, would support recovery by plaintiff or would

constitute a complete defense.” Poulis, 747 F.3d at 869-870. Although the case

survived a (pre-Iqbal) motion to dismiss from two of the defendants, and although

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the Poulis court indicated that it does “not purport to use summary judgment

standards,” the case is likely not meritorious at this point. Without delving into a

summary judgment analysis, the action most likely cannot continue to proceed as

to the John and Jane Doe defendants as fictitious party names “must eventually be

dismissed if discovery yields no identities.” Atlantic Used Auto Parts v. City of

Philadelphia 957 F. Supp. 622, 625 (E.D. Pa. March 7, 1997) (Joyner, J.) Also, a

prison is not a person within the meaning of § 1983, so the action would be

dismissed as to the Lackawanna County prison. See Fischer v. Cahill 474 F.2d

991, 1992 (3d Cir. 1973). As to Lackawanna County, the Warden and

Corrections Care, Inc. there is nothing in the pleadings to establish a pattern of a

failure to supervise or train such that the failure amounted to deliberate

indifference of the constitutional rights of persons. See generally Woloszyn v.

County of Lawrence, 396 F.3d 314 (3d Cir. 2005). As a result, it is doubtful that

the claim would survive the motions for summary judgment. 

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CONCLUSION: 

Although we are granting the motion for reconsideration, on review of the

Poulis factors, we are not vacating our April 2, 2010 order. Final judgment

remains against plaintiff and for all defendants. 

 s/ James F. McClure, Jr. 

JAMES F. McCLURE, JR.

United States District Judge 

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SHAKIRA STATEN, individually :

and SHAKIRA STATEN, natural :

mother of SAMIYAH STATEN, :

a minor, :

: Civil Action No. 4: 07-CV-1329

Plaintiffs, :

: (Judge McClure)

v. :

:

LACKAWANNA COUNTY, et. al. :

:

Defendants :

ORDER

June 15, 2010

NOW, THEREFORE, IT IS HEREBY ORDERED THAT: 

1. Plaintiff’s “Motion to Open and/or for Reconsideration of Motions for

Summary Judgment and Enlargement of Time to File Memorandum” is

GRANTED. (Rec. Doc. No. 114). 

2. Upon reconsideration we are not vacating our April 2, 2010 order. Final

judgment remains against plaintiff and for all defendants. 

 s/ James F. McClure, Jr. 

JAMES F. McCLURE, JR.

United States District Judge 

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