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William Comrie, Jr v. Cumberland County Jail Medical Department

March 21, 2011


The opinion of the court was delivered by: Kugler, District Judge



THIS MATTER comes before the Court on the motion of Defendant, Cumberland County, for an Order to Dismiss the Complaint for Plaintiff's failure to respond to Defendant's Discovery Requests. (See Docket entry no. 21). This motion is being considered on the papers, pursuant to Fed.R.Civ.P. 78. For the reasons set forth below, Defendant's motion will be granted, and the Complaint will be dismissed accordingly.


Plaintiff, William Comrie, Jr., brings this civil action, pursuant to 42 U.S.C. § 1983, alleging that defendant, Cumberland County Jail Medical Department, failed to properly treat his medical conditions and his "confidentiality rights were violated" when his "medical statu[]s" was told to various correctional officers and "fellow inmates." See Complaint at ¶6. The Complaint was filed on or about January 27, 2009. Defendant answered the Complaint on June 18, 2009.

In March 2009, Plaintiff had filed a motion for appointment of counsel, which was denied by the Honorable Joel Schneider, U.S.M.J., by Order entered on July 30, 2009. (Docket entry no. 10). On August 3, 2009, a Scheduling Order was entered setting forth discovery to be completed by November 30, 2009 and dispositive motions due by January 15, 2010. (Docket entry no. 12). Shortly thereafter, on August 13, 2009, Plaintiff sought reconsideration of the denial of appointed counsel. (Docket entry no. 13). Reconsideration was denied by Letter Order issued by Magistrate Judge Schneider on August 18, 2009. (Docket entry no. 14).

On October 23, 2009, defendant filed its first motion to dismiss the Complaint for failure to comply with discovery requests. (Docket entry no. 15). Specifically, counsel for defendant certified that, on June 24, 2009, his office forwarded to Plaintiff a demand that he provide answers to a notice to produce and interrogatories. (Docket entry no. 15-1, Defendant's Certification at ¶3). Defense counsel further certified that Plaintiff's response to defendant's notice to produce became due on or about July 24, 2009. (Id.). Defense counsel further certified that Plaintiff's response to defendant's interrogatories became due on or about August 24, 2010. (Id. at ¶4). Defense counsel also certified that he wrote to Plaintiff on August 25, 2009, requesting his answers to interrogatories. (Id.). On November 9, 2009, defense counsel filed a Supplemental Certification in support of defendant's motion to dismiss the Complaint. Defense counsel certified that on November 2, 2009, he went to take the deposition of Plaintiff at the jail and Plaintiff refused to allow his deposition to be taken because he was "very upset with the Court for not appointing pro bono counsel for him." (Docket entry no. 16, Supplemental Certification at ¶¶3-4).

The motion to dismiss was referred to Magistrate Judge Schneider, and on or about May 7, 2010, an Order was issued denying the motion to dismiss and requiring Plaintiff to comply with discovery requests by June 6, 2010. The motion was denied without prejudice to defendant's right to apply for sanctions in the future if plaintiff failed to fully and completely comply with the May 7, 2010 Order. The Order further directed that Plaintiff appear for his properly noticed deposition, and that defendant promptly submit an appropriate Order to the Court for leave to take the deposition. The Order further stated that should Plaintiff fail to comply with the provisions of the May 7, 2010 Order, his non-compliance "may result in the imposition of sanctions, including, without limitation, the possible dismissal of Plaintiff's complaint." Finally, the Order gave defendant leave to renew its motion for sanctions, addressing the factors set forth in Poulis v State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984), in the event Plaintiff failed to comply with the May 7, 2010. (Docket entry no. 18).

An Amended Scheduling Order was entered on May 6, 2010 extending pretrial factual discovery to July 30, 2010, and dispositive motions due by September 15, 2010. A Joint Pretrial Order was made due on November 12, 2010. (Docket entry no. 17).

Defendant filed its second motion to dismiss the Complaint on June 23, 2010. (Docket entry no. 21). In a Certification supporting the motion, counsel for defendant confirmed that Plaintiff has not provided any responses to discovery requests and has not submitted for his deposition. Counsel also addressed the Poulis factors in the Certification in support of dismissal of the Complaint. (Id.).

On November 12, 2010, counsel for defendant wrote to this Court to inform that Plaintiff had not served his portion of the Final Joint Pretrial Order upon defendant by October 29, 2010, as directed by scheduling order, and that defendant has not received any correspondence from Plaintiff for more than a year. Accordingly, due to Plaintiff's failure to cooperate, the defendant was unable to prepare the Final Joint Pretrial Order. (Docket entry no. 23).


The Federal Rules of Civil Procedure provide for sanctions for non-compliance with discovery orders. Rule 37(b)(2) provides in pertinent part that:

[i]f a party . . . fails to obey an order to provide or permit discovery, including an order under . . . 37(a), the court where the action is pending may issue further just ...

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