Simpson v. PA Board of Probation & Parole

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

CHALMERS A. SIMPSON, JR.,

Plaintiff, CIVIL ACTION NO. 1:17-cv-02343

v. (SAPORITO, M.J.)

PA. BOARD PROBATION /

PAROLE, et al.,

Defendants.

MEMORANDUM

This matter comes before the court on the defendants’ motion to

dismiss for failure to obey court orders. (Doc. 65). For the reasons set

forth herein, the motion will be granted, and the action will be dismissed

with prejudice as a sanction for the plaintiff’s refusal to appear for his

own deposition and as a result of the plaintiff’s failure to prosecute and

his failure to comply with multiple court orders.

I. BACKGROUND

The plaintiff, Chalmers A. Simpson, Jr., initiated this action by

lodging his pro se complaint with the clerk for filing on December 19,

2017, together with an application for leave to proceed in forma pauperis.

In his complaint, Simpson claimed that he was deprived of his

Fourteenth Amendment right to due process because the defendants

failed to hold a preliminary hearing in his parole revocation proceedings

within fourteen days after his arrest and incarceration, and because he

was denied his due process right to be represented by counsel in these

same proceedings. See generally Simpson v. Pa. Bd. of Probation / Parole,

Civil Action No. 1:17-cv-02343, 2019 WL 3387664, at *2–*3 (M.D. Pa.

July 26, 2019) (summarizing the factual underpinnings of the plaintiff’s

claims) (Doc. 55, at 3–9). On January 4, 2018, we granted leave to proceed

in forma pauperis and the complaint was deemed filed. On March 20,

2018, the defendants appeared through counsel and filed their answer to

the complaint.

On January 24, 2019, the defendants properly noticed a deposition

of the plaintiff to take place on January 31, 2019. The plaintiff informed

the defendants that he had a medical test scheduled for that date, and

the defendants agreed to reschedule the deposition.

The defendants rescheduled the plaintiff’s deposition to take place

on April 16, 2019. A week before the rescheduled deposition date, the

plaintiff wrote to inform the defendants that he was scheduled to appear

in state court proceedings on that date. The defendants then made

multiple attempts to contact the plaintiff to reschedule the deposition

once again, both by telephone and in writing, but he failed to respond. On

May 16, 2019, having been unable to obtain any response whatsoever

from the plaintiff, the defendants filed a motion to compel the plaintiff to

appear for his deposition within thirty days. On May 20, 2019, we entered

an order granting the motion and explicitly directing the plaintiff to

“appear at the offices of Defendants’ counsel for his deposition within 30

days.” (Doc. 36.) The order further admonished the plaintiff that he may

be sanctioned if he failed to comply with the order.

On June 17, 2019, the defendants moved for an extension of time to

complete discovery and to file dispositive motions. In their motion, the

defendants reported that the plaintiff had continued to delay his

deposition, insisting that it be conducted outside normal business hours.

On June 18, 2019, we entered an order granting the motion and explicitly

directing the plaintiff to “appear for his deposition during normal

business hours, 9:00 a.m. to 5:00 p.m., within thirty (30) days of the date

of this Order.” (Doc. 46.)

On June 19, 2019, the plaintiff filed a motion for an extension of

case deadlines to permit additional time for him to complete depositions

of the defendants and non-party witnesses. The motion also requested

the issuance of ten subpoenas in blank. On June 20, 2019, we granted the

motion in part and denied it in part. We granted the request for an

extension of the discovery and dispositive motions deadlines, but we

denied the pro se plaintiff’s request for the issuance of subpoenas in blank

because he failed to demonstrate that he had made provisions for the

costs associated with the requested subpoenas. (Doc. 48.) See generally

Badman v. Stark, 139 F.R.D. 601, 605 (M.D. Pa. 1991).

On July 23, 2019, the court received a pro se request from the

plaintiff for the issuance of eight subpoenas in blank. The request did not

identify whom the plaintiff sought to depose, nor did it demonstrate how

the indigent plaintiff intended to pay each witness any fees or costs

incurred by them in complying with the requested subpoenas. See

generally Badman, 139 F.R.D. at 605. On July 24, 2019, the defendants

filed a Rule 26(c) motion for a protective order with respect to this request

for the issuance of subpoenas in blank. On July 26, 2019, we entered an

order denying the request for the issuance of subpoenas in blank and

denying the motion for a protective order as moot. (Doc. 54.)

On July 30, 2019, apparently not yet having received our order of

July 26, 2019, the plaintiff filed a pro se motion styled as a “motion to

deny protective order” expressing his opposition to the defendants’

motion. On August 2, 2019, we entered an order denying the plaintiff’s

motion to deny protective order as moot, in light of our earlier denial of

the underlying defendants’ motion as moot. (Doc. 59.)

In that order of August 2, 2019, however, we further noted that

attached to the plaintiff’s motion opposing a protective order were 134

pages of documentary exhibits, including several subpoenas directed to

each of the party-defendants and to certain non-party recipients. As

prepared by the pro se plaintiff, each of the subpoenas was purportedly

issued under the authority of the United States District Court for the

Middle District of Pennsylvania in connection with this case. Each

subpoena commanded the recipient to attend and testify at a deposition

to be taken at the Harrisburg offices of defense counsel on July 31, 2019,

at 10:00 a.m., or to produce requested documents to the plaintiff by July

26, 2019, at 4:00 p.m. Each subpoena was dated July 23, 2019. Each

subpoena bore two signatures. One signature appears to be a stamped

signature by Michael E. Kunz, Clerk of the United States District Court

for the Eastern District of Pennsylvania. The second signature is that of

the pro se plaintiff himself, in a space labeled “Attorney’s signature,”

which was provided on the form so an attorney admitted to the bar of this

court may sign and issue a subpoena in his or her role as an officer of the

court, in lieu of the clerk’s signature. The plaintiff is not an attorney.

Each subpoena included a proof of service section, in which the plaintiff

indicated that he, personally, served the subpoena on the named

recipient, and that no witness fee was tendered. (Id.)

We noted in our order that the plaintiff had twice before requested

the issuance of subpoenas in blank from the clerk, and that we had twice

ordered the clerk to refuse to issue subpoenas in blank because the

indigent pro se plaintiff had failed to demonstrate that he had made

provision for payment of the costs associated with the requested

subpoenas. Both times, we had instructed the plaintiff that any future

request “should explicitly demonstrate that he has made provisions for

payment of the costs that will be incurred by non-party subpoena

recipients.” (Id.) See generally Badman, 139 F.R.D. at 605.

But rather than comply with these instructions, we noted that the

plaintiff had obtained subpoenas in blank from a different court—

perhaps issued legitimately in connection with some other case, perhaps

not. We noted that the plaintiff completed the subpoena forms and then

improperly served them on the recipients himself, without tendering the

requisite witness and mileage fees.

In our order, we found that the several subpoenas attached as

exhibits to the plaintiff’s motion opposing a protective order were

improper and unauthorized. We found that they were not signed by the

clerk or an officer of this court, and we noted that they arguably were

fraudulently procured and signed. We further found that the subpoenas

were improperly served by the plaintiff personally, without tender of the

requisite witness and mileage fees. Most saliently, however, we found

that the subpoenas had been served in direct contravention of our prior

orders denying the plaintiff’s requests for the issuance of subpoenas in

blank and directing the clerk to refuse to issue subpoenas in blank to this

plaintiff. (Id.)

Thus, in addition to denying the plaintiff’s “motion” as moot, we

ordered that the several unauthorized subpoenas served by the pro se

plaintiff be quashed, and we ordered the plaintiff to respond to the order

in writing within fourteen days to show cause why he should not be

sanctioned for this apparent fraudulent use of civil process. (Id.) The

plaintiff did not file a response to this order to show cause within the time

allotted, nor thereafter.

In the meantime, on July 30, 2019, the plaintiff filed a pro se motion

for a continuance of his own deposition, which had been properly noticed

by the defendants to take place the next day, July 31, 2019.1 The

plaintiff’s motion was delivered to the clerk for filing on July 30, 2019,

but it was not docketed until the day of the scheduled deposition, July 31,

2019, and it only came to our attention the following day, August 1, 2019.

On August 2, 2019, we entered an order denying the plaintiff’s motion

and directing that: “If necessary, the defendants may, at their discretion,

reschedule and re-notice the deposition of the plaintiff to be taken at a

reasonable time, date, and place within the next fourteen (14) days.”

(Doc. 60.)

The defendants properly noticed the rescheduled deposition of the

plaintiff to take place on August 15, 2019. On August 14, 2019—once

again, on the literal eve of his deposition—the plaintiff filed a pro se

1 The basis for the plaintiff’s request was a purported need to review

materials only recently produced by the defendants before he sat for his

own deposition. But, as we noted in our order, the defendants’ production

of documents and an audio recording was simply not relevant to the

plaintiff’s own deposition testimony. (See Doc. 60.)

motion for a continuance of his deposition until a later date.2 That same

day—August 14, 2019—we entered an order denying the plaintiff’s

motion for a continuance and explicitly directing that: “The plaintiff shall

attend and testify at his deposition at the date, time, and place noticed

by the defendants.” (Doc. 64.)

That same day—August 14, 2019—counsel for the defendants

called the plaintiff and left multiple voicemail messages advising him

that the motion for a continuance had been denied and the deposition

would proceed as scheduled on August 15, 2019. Notwithstanding our

order and opposing counsel’s communication, Simpson failed to appear

for his deposition on August 15, 2019. (See Doc. 72.)

On August 26, 2019, the defendants filed the instant motion to

dismiss this action pursuant to Rule 37(d) and Rule 41(b) of the Federal

2 The basis of this request by the plaintiff was the defendants’

purported failure to produce certain documents and audio recordings,

some of which were previously addressed by the court in an opinion and

order denying a motion to compel by the plaintiff. See Simpson, 2019 WL

3387664, at *3–*4 (denying motion to compel with respect to the

production of audio recordings that did not—and never did—exist, and

which would have been irrelevant to the plaintiff’s claims even if they

did) (Doc. 55, at 9–13). The remainder of the undisclosed information and

materials described in the plaintiff’s motion for a continuance were

entirely irrelevant to the plaintiff’s own deposition testimony.

Rules of Civil Procedure. On September 9, 2019, the defendants filed

their brief in support of the motion.3 On September 13, 2019, the

defendants filed a supplement to their motion—a stenographic transcript

of a statement on the record by defense counsel on August 15, 2019, in

which counsel described the circumstances of the plaintiff’s failure to

appear for his own deposition on that date.

On September 20, 2019, the plaintiff timely filed a pro se motion for

a 90-day extension of time to file a brief in opposition to the defendants’

motion to dismiss. This motion for an extension did not address the

earlier order to show cause. On September 23, 2019, we entered an order

granting the motion for an extension of time and directing the plaintiff to

file his brief in opposition to the motion to dismiss on or before December

30, 2019. The order further directed that the plaintiff’s brief include a

response to the August 2, 2019, order to show cause. (Doc. 74.)

On December 30, 2019, the plaintiff timely filed a pro se motion for

an additional six-month extension of time to file a brief in opposition to

3 The defendant’s brief explicitly discussed the potential dismissal

of this action under Rules 37 and 41 and application of the various factors

set forth by the Third Circuit in Poulis v. State Farm Fire & Cas. Co., 747

F.2d 863 (3d Cir. 1984).

the motion to dismiss and to respond to the order to show cause. On

January 2, 2020, we entered an order granting the motion for an

extension of time in part and denying it in part. The order granted the

plaintiff a 45-day extension of time and directed him to file his brief in

opposition to the motion to dismiss and response to the order to show

cause on or before February 13, 2020. The order explicitly admonished

the plaintiff that: “Absent extraordinary circumstances, there shall be no

further extensions of time with respect to this matter.” (Doc. 76.) At the

time of this order, the motion to dismiss had been pending for more than

four months, and the order to show cause had been pending for exactly

five months.

On February 13, 2020—the day when his brief in opposition and

show cause response was due—the plaintiff filed a notice of interlocutory

appeal from various orders, including our August 2, 2019, order to show

cause and our August 14, 2019, order denying a continuance of the

plaintiff’s deposition. On June 17, 2021, the Third Circuit dismissed the

plaintiff’s appeal for lack of jurisdiction.

On December 7, 2021, we made final attempt to elicit a substantive

response from the pro se plaintiff, entering an order directing him to file

a brief in opposition to the motion to dismiss and response to the order to

show cause on or before December 28, 2021. In doing so, we admonished

the plaintiff that: “In light of the multiple substantial extensions of time

previously granted with respect to this motion, and the substantial period

during which the action was stayed pending an interlocutory appeal,

absent extraordinary circumstances, there shall be no further extensions

of time with respect to this matter . . . .” (Doc. 81.)

As of this date, Simpson has failed to file a brief in opposition to the

defendants’ motion to dismiss or this court’s order to show cause, or to

otherwise respond to the defendants’ motion or the court’s various

orders.4

II. LEGAL STANDARD

Under the federal rules, if a party fails to attend his own deposition

after being served with proper notice, the court may impose any sanction

listed in Rule 37(b)(2)(A)(i)–(vii). Fed. R. Civ. P. 37(d)(3). Under this rule,

when imposing a sanction, the court may issue “further just orders,”

including:

4 On February 1, 2022, the plaintiff did file a 41-page set of exhibits,

most of which—if not all—had been filed previously. (Doc. 82.) None of

the exhibits were responsive to the defendants’ motion or our orders.

(i.) directing that . . . designated facts be taken as

established for purposes of the action, as the

prevailing party claims;

(ii.) prohibiting the disobedient party from supporting

or opposing designated claims or defenses, or from

introducing designated matters in evidence;

(iii.) striking pleadings in whole or in part;

(iv.) staying further proceedings until the order is

obeyed;

(v.) dismissing the action or proceeding in whole or in

part; [or]

(vi.) rendering a default judgment against the

disobedient party[.]

Fed. R. Civ. P. 37(b)(2)(A)(i)–(vi). Moreover,

[i]nstead of or in addition to these sanctions, the court

must require the party failing to act, the attorney

advising that party, or both to pay the reasonable

expenses, including attorney’s fees, caused by the

failure, unless the failure was substantially justified or

other circumstances make an award of expenses

unjust.

Fed. R. Civ. P. 37(d)(3).

Rule 37 sanctions are contemplated when there has

been virtually total noncompliance with discovery. Yet,

a direct order by the Court, as Rule 37(a) and (b)

requires, is not a necessary predicate to imposing

penalties under Rule 37(d). When it has been

determined that a party has willfully failed to comply

with the rules of discovery, it is within the discretion of

the trial court to dismiss the action. Litigants may

oppose discovery requests by seeking a protective order

from the court; they cannot be permitted to frustrate

discovery by refusing to comply with a proper request.

The dismissal sanction, although severe, is a necessary

tool, both to punish in the individual action and to deter

future abuses in the discovery process.

Al Barnett & Son, Inc. v. Outboard Marine Corp., 611 F.2d 32, 35–36 (3d

Cir. 1979) (citations omitted).

Rule 41(b) further permits a district court to dismiss a plaintiff’s

case for failure to prosecute or to comply with court orders. See Fed. R.

Civ. P. 41(b) (“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.”). “Such dismissal is deemed to be an adjudication on

the merits, barring any further action between the parties.” Sebrell ex rel.

Sebrell v. Philadelphia Police Dep’t, 159 Fed. App’x 371, 373 (3d Cir.

2005).

III. DISCUSSION

Simpson has repeatedly failed to meet his obligations under the

federal rules and specific orders by this court directing him to appear for

a deposition, to respond to the defendants’ motion to dismiss, and to

respond to the court’s order to show cause. The defendants have moved

for dismissal of this action under Rules 37(d) and 41(b) of the Federal

Rules of Civil Procedure.

When considering dismissal under Rule 37(d) or Rule 41(b), a court

must balance the following six factors:

(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 the 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.

Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984)

(emphasis in original).5

In exercising this discretion, there is no “magic formula” or

“mechanical calculation” to determine whether the case should be

dismissed. See Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008); Mindek

v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992). “While ‘no single Poulis

5 We note that the plaintiff has failed to oppose the defendants’

motion to dismiss whatsoever. Our local rules provide that a motion will

be deemed unopposed if the non-movant fails to file a brief in opposition.

See L.R. 7.6. Moreover, the plaintiff failed to comply with subsequent

orders by this court explicitly directing him to respond to the motion. But

notwithstanding Simpson’s failure to expressly oppose the motion and

the effect of that failure under the local rules, we are required to consider

the several Poulis factors before imposing the sanction of dismissal. See

Hernandez v. Palakovich, 293 Fed. App’x 890, 895–96 (3d Cir. 2008).

factor is dispositive,’ we have also made it clear that ‘not all of the Poulis

factors need be satisfied in order to dismiss a complaint.’” Briscoe, 538

F.3d at 263 (quoting Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir.

2003), and Mindek, 964 F.2d at 1373).

The first Poulis factor weighs in favor of dismissal. It is

indisputable that that the total failure to abide by legal responsibilities

has been the fault of the pro se plaintiff himself, and not the fault of

counsel (he has none) or elements outside of his control. Simpson has

consistently and actively refused to cooperate with opposing counsel in

discovery or comply with the express orders of this court directing him to

submit himself to a discovery deposition. His requests for the issuance of

subpoenas in blank were twice rejected by this court, with express

instructions from the court on the prerequisite showing necessary to

obtain the issuance of such subpoenas, but the plaintiff nevertheless

persisted and fraudulently procured unauthorized subpoenas in blank

bearing the signature of the clerk of another district court, which he then

personally served on multiple party and non-party witnesses. Given

these facts, it is clear that the culpability in this circumstance rests

entirely with the plaintiff.

The second Poulis factor weighs in favor of dismissal. “Generally,

prejudice includes ‘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.’” Briscoe,

538 F.3d at 259. But “prejudice is not limited to ‘irremediable’ or

‘irreparable’ harm. It also includes ‘the burden imposed by impeding a

party’s ability to prepare effectively a full and complete trial strategy.’”

Id. (citations omitted). In failing to attend his deposition, Simpson has

actively prejudiced the defendants from being able to defend themselves

against Simpson’s civil rights claims. This alone has justified dismissal

under Rule 37(d) and tends to favor dismissal under the second Poulis

factor. See, e.g., Barnett & Son, 611 F.2d at 35–36.

The third Poulis factor weighs in favor of dismissal. “[C]onduct that

occurs one or two times is insufficient to demonstrate a ‘history of

dilatoriness.’” Briscoe, 538 F.3d at 261. But “[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.” Id. at 260. Here, the plaintiff persisted in repeated

attempts to obtain subpoenas in blank, despite the express rejection of

these requests by the court, leading him ultimately to turn to deceptive

means to procure the desired subpoenas in blank from another court.

Moreover, the defendants properly noticed Simpson’s deposition on

multiple occasions. Simpson repeatedly sought to delay his deposition,

seeking continuances on various spurious grounds. The court repeatedly

admonished the plaintiff that there was no basis for avoiding his

deposition, expressly ordering him to submit to being deposed on no fewer

than four occasions. Ultimately, on August 15, 2019, his most recent

eleventh-hour request for a continuance having been denied prior to the

scheduled deposition, Simpson failed to appear for a properly noticed

deposition by the defendant. The defendant subsequently moved for

dismissal of this action and Simpson has failed to file a brief in

opposition. On no fewer than three occasions, we have entered orders

expressly directing Simpson to file a brief in opposition to the defendant’s

motion and in response to our order to show cause, and Simpson has

failed to do so. The entire history of this action has been characterized by

a pattern of consistent delay and non-compliance by the plaintiff,

militating in favor of dismissal. See Poulis, 747 F.2d at 868; see also

Emerson v. Thiel Coll., 296 F.3d 184, 191 (3d Cir. 2002) (finding a history

of dilatory conduct where plaintiff repeatedly requested stays and failed

to comply with court mandated deadlines).

The fourth Poulis factor weighs in favor of dismissal.

Under this factor, the District Court must consider

whether the conduct was “the type of willful or

contumacious behavior which was characterized as

flagrant bad faith.” Generally, “willfulness involves

intentional or self-serving behavior.” If the conduct is

merely negligent or inadvertent, we will not call the

conduct “contumacious.”

Briscoe, 538 F.3d at 262 (quoting Adams v. Trs. of N.J. Brewery Emps.’

Pension Tr. Fund, 29 F.3d 863, 875 (3d Cir. 1994)) (citations and brackets

omitted). Here, Simpson has failed to appear for a properly noticed

deposition on multiple occasions, and he has failed to comply with

multiple orders expressly directing him to submit to being deposed. He

has failed to comply with multiple orders directing him to respond to the

defendants’ motion to dismiss, and he has failed to comply with multiple

orders directing him to show cause why he should not be sanctioned for

his apparent fraudulent procurement and service of subpoenas in blank

from another court, after this court’s repeated rejection of his requests

for the issuance of such subpoenas. The plaintiff having been provided

with a full and fair opportunity to present reasons why he did not appear

to be deposed, why he should not be sanctioned for other discovery

misconduct, and why this action should not be dismissed, the plaintiff

having failed utterly to provide any such reason, and based on the record

before us, we find that Simpson willfully refused to appear and be

deposed as required under the federal rules and willfully refused to

comply with this court’s orders. See Briscoe, 538 F.3d at 262.

The fifth Poulis factor weighs in favor of dismissal.

A District Court must consider the availability of

sanctions alternative to dismissal. Where an attorney

has caused the delay and noncompliance in the

proceedings, [the Third Circuit] ha[s] noted that “under

the Federal Rules of Civil Procedure and the 1983

amendments, the district court is specifically

authorized to impose on an attorney those expenses,

including attorneys’ fees, caused by an unjustified

failure to comply with discovery orders or pretrial

orders.” However, where a plaintiff is proceeding pro

se, and moreover, is proceeding in forma pauperis, [the

Third Circuit] ha[s] upheld the District Court’s

conclusion that no alternative sanctions existed

because monetary sanctions, including attorney’s fees,

“would not be an effective alternative.”

Id. at 262–63 (quoting Poulis, 747 F.2d at 869, and Emerson v. Thiel Coll.,

296 F.3d 184, 191 (3d Cir. 2002)) (citations and brackets omitted). Here,

Simpson is proceeding both pro se and in forma pauperis. Because he is

pro se, he has no attorney upon whom this court could impose expenses

for failing to comply with the court’s orders and with his discovery

obligations under the federal rules. Because he is in forma pauperis, we

conclude that monetary sanctions, including an attorney’s fees award,

would not be an effective alternative sanction, particularly in light of his

past history in this case of noncompliance with court orders and

obligations imposed by the federal and local rules. See Briscoe, 538 F.3d

at 263; Emerson, 296 F.3d at 191.

The sixth and final Poulis factor weighs in favor of dismissal. The

plaintiff’s § 1983 claims concerning the conduct of his parole revocation

proceedings are likely barred by the favorable termination rule

articulated by the Supreme Court of the United States in Heck v.

Humphrey, 512 U.S. 477 (1994). See Williams. Consovoy, 453 F.3d 173,

176 (3d Cir. 2006). But even if we consider the substance of the plaintiff’s

factual allegations, his legal claims are clearly meritless. Although the

applicable state regulations do generally require a preliminary hearing

to be held within 14 days after a parolee is detained and a detention

hearing within 30 days, these same regulations further provide for the

exclusions of certain delays from these time periods, and each of the three

continuances in Simpson’s parole revocation proceedings fell within one

or more of these exceptions. See Simpson, 2019 WL 3387664 at *4 n.9

(Doc. 55, at 11 n.9). Notwithstanding these state regulations, to establish

a due process claim, a parolee must demonstrate that he suffered actual

prejudice as a result of the delay, but Simpson has failed to allege facts

or point to any evidence that he suffered any prejudice at all as a result

of the delay. See id. at *4 (Doc. 55, at 11–13). Moreover, based on the

undisputed facts of this case, it is clear that Simpson’s claim that he was

denied his due process right to counsel at his revocation hearing is

baseless—a public defender was available to represent Simpson, but he

refused, preferring to retain private defense counsel and failing to do so

despite repeated continuances. See generally Gagnon v. Scarpelli, 411

U.S. 778, 790 (1973) (recognizing that whether due process requires

counsel in a parole revocation hearing must be determined on a case-by-

case basis); cf. United States v. Manuel, 732 F.3d 283, 291 (3d Cir. 2013)

(recognizing that there is no Sixth Amendment right to counsel at a

parole revocation hearing). Finally, “[t]he plaintiff cannot refuse to

cooperate with this discovery, which would address the merits of his

claims, and then assert the untested merits of these claims as grounds

for denying a motion to sanction him for this refusal to participate in

discovery.” Nowland v. Lucas, Civil No. 1:10-CV-1863, 2012 WL 10559,

at *6 (M.D. Pa. Jan. 3, 2012).

Ultimately, the balance of Poulis factors, considered together,

clearly weigh heavily against the plaintiff and in favor of dismissal.

IV. CONCLUSION

For the foregoing reasons, the defendants’ motion will be granted,

and this civil action will be dismissed with prejudice as a sanction for the

plaintiff’s refusal to appear for his own deposition, pursuant to Rule 37(d)

of the Federal Rules of Civil Procedure, and as a result of the plaintiff’s

failure to prosecute and his failure to comply with multiple court orders,

pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. In light of

the plaintiff’s indigent status, the parties shall bear their own costs.

An appropriate order follows.

Dated: March 17, 2022 s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge