WILLIAM I. ARBUCKLE, Magistrate Judge.
On January 28, 2019, Plaintiffs Grace M. Derr, William J. Derr, and Stephen A. Derr initiated this pro se civil rights action against the following seventeen (17) Defendants:
On April 5, 2019, Defendant Families United Network ("Defendant FUN") filed a Motion to Dismiss. (Doc. 23). Along with its Motion, Defendant FUN filed a brief in support. (Doc. 24). To date, Plaintiffs have failed to file a response to Defendant FUN's Motion to Dismiss. Accordingly, IT IS RECOMMENDED THAT:
On January 28, 2019, Plaintiffs initiated this civil rights action in the Eastern District of Pennsylvania. (Doc. 3). Plaintiffs, who at one time resided in a large home in Northumberland County with their children and grandchildren, claim that their rights under the United States Constitution were violated after several of their grandchildren were removed from their parents' custody and the home owned by Plaintiffs (the grandparents). Specifically, they claim that they are not permitted to see their grandchildren, were subjected to an unreasonable warrantless search at the hands of Defendant Northumberland County CYS and its employees and were listed in a child abuse database without a meaningful opportunity to object.
On January 31, 2019, this case was transferred to the Middle District of Pennsylvania. (Doc. 5). All three Plaintiffs sought and were granted leave to proceed in forma pauperis. (Docs. 1, 2, 7, 11).
On April 5, 2019, Defendant FUN filed a Motion to Dismiss Plaintiffs Complaint. (Doc. 23). Along with its Motion, Defendant FUN filed a Brief in Support. (Doc. 24). On April 9, 2019, the Court issued an Order directing Plaintiffs to respond to the Northumberland Defendants' Motion. (Doc. 25). On April 24, 2019, Plaintiffs sought an were granted an extension of time—until May 10, 2019—to respond. To date, Plaintiffs have failed to do so.
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss, the court "must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether plaintiff may be entitled to relief under any reasonable reading of the complaint." Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In reviewing a motion to dismiss, a court must "consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents." Id. at 230.
In deciding whether a complaint fails to state a claim upon which relief can be granted, the court is required to accept as true all factual allegations in the complaint as well as all reasonable inferences that can be drawn from the complaint. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). These allegations and inferences are to be construed in the light most favorable to the plaintiff. Id. However, the court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Further, it is not proper to "assume that [the plaintiff] can prove facts that [he] has not alleged . . . ." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
Following the rule announced in Ashcroft v. Iqbal, "a pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather, a complaint must recite factual allegations enough to raise the plaintiff's claimed right to relief beyond the level of mere speculation. Id. To determine the sufficiency of a complaint under the pleading regime established by the Supreme Court, the court must engage in a three-step analysis:
Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 556 U.S. at 675, 679). "In other words, a complaint must do more than allege the plaintiff's entitlement to relief" and instead must `show' such an entitlement with its facts." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).
As the court of appeals has observed:
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011).
In undertaking this task, the court generally relies only on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also, U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002) (holding that "[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment.") However, the court may not rely on other parts of the record in determining a motion to dismiss. Jordan v. Fox, Rothschild, O'Brien &Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
In the background section of their Complaint, Plaintiffs allege that:
(Doc. 3, p. 6). Similarly, in a section of the Complaint entitled "First Amendment Statement upon which relief can be granted," Plaintiffs allege that:
(Doc. 3, p. 11).
Local Rule 7.6 of the Rules of this Court imposes an affirmative duty on Plaintiffs to respond to the Northumberland Defendants' Motion to Dismiss. This rule states, in relevant part:
Local Rule 7.6 (emphasis added).
"Local Rule 7.6 can be applied to grant a motion to dismiss without analysis of the complaint's sufficiency `if a party fails to comply with the [R]ule after a specific direction to comply from the court.'" Williams v. Lebanon Farms Disposal, Inc., No. 09-1704, 2010 WL 3703808, *1 (M.D. Pa. Aug. 26, 2010) (quoting Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (1991)). Plaintiffs were specifically directed to respond to the Northumberland County Defendants' Motion and advised of the consequence of their failure to respond. Despite these warnings, they failed to do so. (Doc. 26). Given this procedural default by Plaintiffs, the Court must be mindful of the basic truth that:
Lease v. Fishel, 712 F.Supp.2d 359, 371 (M.D.Pa. 2010) (quoting McCurdy v. American Bd. of Plastic Surgery, 157 F.3d 191, 197 (3d Cir. 1998)). With this basic truth in mind, we acknowledge a fundamental guiding tenet of our legal system. A failure on our part to enforce compliance with the rules, and impose the sanctions mandated by those rules when the rules are repeatedly breached, "would actually violate the dual mandate which guides this Court and motivates our system of justice: `that courts should strive to resolve cases on their merits whenever possible [but that] justice also requires that the merits of a particular dispute be placed before the court in a timely fashion.'" Id. (quoting McCurdy v. American Bd. of Plastic Surgery, 157 F.3d 191, 197 (3d Cir. 1998)). Therefore, the Court is obliged to ensure that one party's refusal to comply with the rules does not lead to an unjustified prejudice to those parties who follow the rules.
These basic tenets of fairness apply here. Plaintiffs have failed to comply with Local Rule 7.6 by filing a timely response to this Motion to Dismiss. This failure now compels us to apply the sanction called for under Rule 7.6 and deem Defendant FUN's Motion unopposed.
Rule 41(b) of the Federal Rules of Civil Procedure authorizes a court to dismiss a civil action for failure to prosecute, stating that: "If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it." Fed. R. Civ. P. 41(b). Decisions regarding dismissal of actions for failure to prosecute rest in the sound discretion of the Court, and will not be disturbed absent an abuse of that discretion. Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002) (citations omitted). That discretion, however, while broad is governed by certain factors, commonly referred to as Poulis factors. As the United States Court of Appeals for the Third Circuit has noted:
Emerson, 296 F.3d at 190.
The first Poulis factor—the extent of Plaintiffs' responsibility for the failure to respond to Defendants FUN's Motion to Dismiss—weighs in favor of dismissal. In this case, Plaintiffs, all of whom are proceeding pro se, are personally responsible for failure to comply with the Court's rules and orders.
The second Poulis factor—the prejudice to Defendant FUN caused by Plaintiffs' failure to respond to the pending Motion to Dismiss—weighs in favor of dismissal. Examples of prejudice are "the irretrievable loss of evidence, the inevitable dimming of witnesses' memories, or the excessive and possibly irremediable burdens or costs imposed on the opposing party." Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984). Prejudice for purposes of the Poulis analysis, however, does not mean irremediable harm. Ware, 322 F.3d at 222. "[T]he burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy is sufficiently prejudicial." Id. Plaintiffs failure to litigate this case, comply with L.R. 7.6, and abide by Court Orders directing them to comply with L.R. 7.6 has frustrated and delayed the resolution of this action. Furthermore, this delay can be seen to prejudice Defendant FUN, whose attempt to seek timely resolution of this case has been hindered by Plaintiffs' inaction.
The third Poulis factor—Plaintiffs' history of dilatoriness—also weighs in favor of dismissal. While "conduct that occurs one or two times is insufficient to demonstrate a `history of dilatoriness,'" Briscoe, 538 F.3d at 261, "[e]xtensive or repeated delay or delinquency constitutes a history of dilatoriness, such as consistent non-response to interrogatories, or consistent tardiness in complying with court orders." Adams v. Trs. of N.J. Brewery Emps.' Pension Trust Fund, 29 F.3d 863, 874 (3d Cir. 1994). A "party's problematic acts must be evaluated in light of [their] behavior over the life of the case." Id. at 875. Plaintiffs have failed to respond to Defendant FUN's Motion to Dismiss after being ordered to do so, and despite the Court's warning that the failure to respond may result in the dismissal of this case. (Doc. 25). Plaintiffs requested, and were granted, an extension of time. However, no brief in opposition was filed with the Court. In sum, even after explicitly being advised of their obligations, and being granted an extension of time, Plaintiffs failed to file a brief in opposition.
The fourth Poulis factor—whether Plaintiffs' failure to respond was willful or in bad faith—also weighs in favor of dismissal. "Willfulness involves intentional or self-serving behavior." Adams, 29 F.3d at 875. Plaintiffs were ordered to file a brief in opposition to Defendant FUN's Motion to Dismiss but did not do so. Moreover, they were warned of the possible consequences of failing to file a brief in opposition. Plaintiffs failure to comply with the Court's order, failure to file a brief after being granted an extension of time, or failure to file a brief at any point over the past four months since that deadline passed leads to an inference that they have willfully abandoned this case.
The fifth Poulis factor—the effectiveness of alternate sanctions—also weighs in favor of dismissal. Dismissal is a sanction of last resort, and it is incumbent upon a court to explore the effectiveness of lesser sanctions before ordering dismissal. Poulis, 747 F.2d at 868. Plaintiffs are proceeding pro se and in forma pauperis, and there is no evidence to support a reasonable inference that they would be able to pay monetary sanctions. Therefore, monetary sanctions, including attorney's fees and costs, would not be an effective sanction in this case. Moreover, Plaintiffs' failure to comply with the Court's orders leads to an inference that further orders would not be effective. In this case, no sanction short of dismissal would be effective.
The sixth Poulis factor—meritoriousness of Plaintiffs' claims—weighs in favor of dismissing this case. Under Poulis and Fed. R. Civ. P. 41(b), a claim will be deemed meritorious when the allegations of the complaint, if established at trial, would support recovery. Poulis, 747 F.2d at 870. After reviewing the allegations involving Defendant FUN I conclude that Plaintiff fails to state a cognizable claim against them.
As noted above, Plaintiffs mention Defendant FUN only twice in their Complaint. Once in the background section, and once in a section entitled "First Amendment Statement upon which relief can be granted." Plaintiffs' First Amendment claim pertains to the interference with the Plaintiff-grandparents ability to see one or more of their grandchildren for some period of time. As this claim pertains to Defendant FUN, the only allegation is that Shawn and Monica Homan received "poor training" from Defendant FUN.
As explained in Doe v. Fayette County CYS:
No. 8-823, 2010 WL 4854070 at *18 (W.D. Pa. Nov. 22, 2010).
In this case, it appears that as of April 2017 three generations of this family resided together in a large home. It appears that Plaintiff Grace Derr is the matriarch of this family, is a parent and grandparent, and owns a one-third interest in the home this family resided in. Plaintiff William Derr is Plaintiff Grace Derr's husband, is the patriarch of this family, is a parent and grandparent, and owns a one-third interest in the home this family resided in. Plaintiff Stephen Derr is one of Grace and William's sons and owns a one-third interest in the home this family resided in. It is not clear whether Stephen Derr is the parent of any of the children involved. Although more of Grace and William's children resided in the home, it is not clear which of these children were adults and which were minors, or which of Grace and William's children had children of their own.
It also appears, that as of April 2017, the parent of each minor child had custody of them—not the grandparents.
At some point, due to arrests and/or calls to Northumberland County CYS, most if not all of the minor children residing in the Derr household were removed from the custody of their biological parents. Plaintiffs Grace Derr and William Derr did regain custody of some of these children for some period of time. It is not clear what children Plaintiffs still have custody of, if any. As a basis for their First Amendment claim, Plaintiffs allege that they are not allowed to see their grandchildren (Doc. 3 p. 8), but once again do not specify which ones or when or why, or if by "see" they mean "visit with" or "regain custody of."
It appears that the proper place for this type of claim is under the Fourteenth Amendment Due Process Clause—not the First Amendment. See KK v. Berks County, 5:15-CV-0475, 2016 WL 1274052 at *8 (E.D. Pa, Mar. 31, 2016). However, even assuming that this is a cognizable First Amendment claim, it should be dismissed due to Plaintiffs failure to comply with Rule 8 of the Federal Rules of Civil Procedure.
It is well-settled that: "[t]he Federal Rules of Civil Procedure require that a complaint contain `a short and plain statement of the claim showing that the pleader is entitled to relief,' Fed. R. Civ. P. 8(a)(2), and that each averment be `concise, and direct,' Fed. R. Civ. P. 8(e)(1)." Scibelli v. Lebanon County, 219 F. App'x 221, 222 (3d Cir. 2007). Thus, dismissal is appropriate when a complaint is so "rambling and unclear" as to defy response. Tillio v. Spiess, 441 F. App'x 109 (3d Cir. 2011). Similarly, dismissal is appropriate in "`those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.'" Id. at 110 (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)); Tillio v. Northland Grp. Inc., 456 F. App'x 78, 79 (3d Cir. 2012).
These principles are applicable here. Although Plaintiffs have a large number of grandchildren whom they care for deeply, it is not clear when or which ones they lost custody or contact with, or why they lost custody or contact with the children. It is also not clear what was done by Shawn and Monica Homan, whether Defendant FUN had any responsibility to train these individuals, what training, if any Defendant FUN provided to them, or how the actions of Shawn and Monica Homan were the result of poor training. Accordingly, it is recommended that Plaintiffs' First Amendment Familial Association claim be dismissed on its merits.
It is RECOMMENDED that:
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3 which provides:
