The opinion
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RICHARD ARRINGTON, )
)
Plaintiff, )
)
v. ) 1:23cv285
) Electronic Filing
ERIE COUNTY PRISON, )
JOSHUA VOGEL, MICHAEL DEJOHN, )
ERIE POLICE DEPARTMENT, )
SUSAN MACK, Dr. LASAR, M.D., )
WARDEN SUTTER, )
)
Defendants. )
MEMORANDUM OPINION
Richard Arrington ("plaintiff") commenced this civil rights action pursuant to 42 U.S.C.
§ 1983 seeking redress for his arrest on retail theft charges on September 11, 2023, and the
treatment he immediately experienced after being taken into custody. Plaintiff filed an amended
complaint on November 8, 2023. Presently before the court are defendants' motions to dismiss
based on a variety of reasons, including failure to state a claim, failure to prosecute, judicial
immunity, Eleventh Amendment immunity, qualified immunity, the existence of probable cause,
and the lack of a certificate of merit. Also before the court are plaintiff's motion for leave to
amend and a series of motions related to the proposed amended complaint. For the reasons set
forth below, defendants' motion to dismiss for failure to prosecute will be denied, plaintiff's
motion for leave to amend will be denied, plaintiff's motions related to the proposed amended
complaint will be denied as moot and the case will be referred back to the magistrate judge for
further proceedings consistent with this Memorandum Opinion and the accompanying order.
Plaintiff's amended complaint alleges that on September 11, 2023, he was walking down
the street when he was detained, handcuffed and taken into custody without a warrant or a proper
front on Magisterial District Judge Susan Mack, who did not make a proper probable cause
determination by failing "to Jurat, Sign and Stamp the Commonwealth Signature" on the
affidavit and warrant presented by arresting Erie Police Office Joshua Vogel, making plaintiff's
arrest illegal based on the lack of probable cause. Plaintiff was then illegally detained in a
holding cell in the Erie County Police Department.
Plaintiff began having chest pain after being in a holding cell that had no mattress or
covers and he was not given the customary opportunity to make a telephone call. Plaintiff was
taken to the hospital where he was examined by Dr. Asar. Dr. Asar asked plaintiff why he felt
the need to come to the hospital and ignored plaintiff's extremely high blood pressure. He also
questioned plaintiff about his medical history in front of the police officers and thus shared
plaintiff's assertedly protected medical information in violation of HIPPA.
Dr. Asar declined to treat plaintiff for his high blood pressure and informed the officers
they could escort plaintiff back to the Erie County Prison. The officers then incarcerated
plaintiff there without a valid warrant or a finding of probable cause for his arrest, which Warden
Sutter thus assertedly permitted.
Plaintiff requests varying forms of declaratory and injunctive relief. These include
having Officer Vogal placed on desk duty and retrained in the procedures for arrest and
detention; precluding the Erie Police Department from filing criminal complaints that are
unsigned by a magisterial district judge and acting on unverified probable cause affidavits;
having Magisterial District Judge Susan Mack retrained in processing criminal complaints and
affidavits of probable cause; having Dr. Asar undergo training on treating all persons with
respect and avoiding bias towards patients in handcuffs and pay money damages for engaging in
the "lack of medical attention;" holding Officer Vogel and Warden Sutton liable for a "Natural
process to review and pursue them; and having the "right to know law" be activated in this case
so that the conditions of lead paint, rusty tables, illegal and degrading searches, moldy shower
facilities, dangerous objects brought in by the guards, and the improper stifling of
communications between inmates and upper level prison authorities can all become known.
Plaintiff also requests the court to send the Erie County Prison a warning about the confiscation
of legal mail.
Some of the defendants filed the pending motions to dismiss as referenced above. On
each occasion the plaintiff was advised by the court and/or the record reflected that "[a]
response/briefing schedule will issue once all Defendants have responded to the Amended
Complaint." See Order of January 1, 2024; Order of April 16, 2024; and Order of April 24, 2024
(Document No.s 20, 34 and 37). One of the previously assigned magistrate judges then
administratively closed the case after plaintiff was released from the Erie County Prison and
thereafter failed to provide an updated address. See Order of June 5, 2024 (Document No. 44),
and Staff Note of May 29, 2024, noting the return of the court's mail addressed to plaintiff as
undeliverable. Defendant I. Asar, M.D., then filed a motion to dismiss for failure to prosecute, in
which the other defendants joined.
The current Magistrate Judge issued a report on October 4, 2024, recommending that the
case be dismissed for failure to prosecute and that the pending motions to dismiss be denied as
moot. Plaintiff was given until October 21, 2024, to file objections to the report and
recommendation. He failed to file any objections within that deadline or seek an extension of it.
On January 6, 2025, plaintiff filed a motion to extend the deadline for filing objections to
the October 4, 2024, report and recommendation. Plaintiff claimed that he had a "mental
situation" and he was precluded from revealing his whereabouts while in treatment at a mental
respond to the pending motion to dismiss for failure to prosecute and the October 4, 2024, Report
and Recommendation by January 31, 2025.
Plaintiff responded to the January 7, 2025, order by filing a motion for leave to amend.
He seeks to add claims against the Erie Police Department, the Erie County Prison and the Erie
County District Attorney's Office based on his November 30, 2024, arrest on felony robbery,
aggravated assault and receiving stolen property. Plaintiff asserts that he was arrested without an
affidavit of probable cause, subjected to a ransom bail in the amount of $10,000.00 straight cash,
and released from Hamot UPMC Hospital on December 2nd or 3rd, 2024, and thereafter placed in
illegal detention. After being released to Erie County Prison, plaintiff was subject to detention
based on a preliminary hearing that was conducted by video conference. The victim did not
appear at that hearing and the hearing was then extended for several weeks and rescheduled for
January 23, 2025. Plaintiff asserts the Erie Police Department is utilizing criminal complaints
without affidavits of probable cause, that magisterial district judges are failing to sign and seal
warrants of arrest, supporting affidavits, and permitting the submission of false records and
writings which are not sworn. Plaintiff requests that he be permitted to amend his complaint and
the order permitting an extension to respond until January 31, 2025, be extended until March 21,
2025.
In a motion in support filed on January 17, 2025, plaintiff reiterates his assertions
regarding the events that occurred on September 11, 2023. He asserts every defendant
participated in the violation for his rights regardless of whether they did so knowingly or
unknowingly, engaged in human trafficking, committed unlawful restraint, kidnapping, false
imprisonment, and coercion, and participated in issuing blank warrants. All of this has resulted
in plaintiff's loss of liberty without due process of law and a violation of his right to equal
plaintiff moves to add the following as defendants: "some unknown Erie Police Officers to be
added to this civil action by the means of civil conspiracy;" Warden Holman of Erie County
Prison, St. Vincent Hospital, Magisterial District Judge Edward Wilson, and the sergeant
working intake at the Erie County Police Department on November 30, 2024. Motion to Add
Defendants (Doc. No. 64) at p.1.
As an initial matter, defendant Asar's motion to dismiss for lack of prosecution (in which
the other defendants have joined) will be denied. The United States Court of Appeals for the
Third Circuit has identified a six-factor balancing test to guide a court in determining whether a
case should be dismissed for failure to prosecute. Poulis v. State Farm Fire & Casualty Co., 747
F.2d 863 (3d Cir. 1984). The court must consider (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.
Id. at 868. There is no “magic formula” or “mechanical calculation” to determine whether a case
should be dismissed for failure to prosecute, Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir.
1992), and not all six factors need to weigh in favor of dismissal before dismissal is warranted.
Hicks v. Feeney, 850 F.2d 152 (3d Cir. 1988). Rather, the court must “properly consider and
balance” each of the six factors based on the record. See Hildebrand v. Allegheny County, 923
F.3d 128, 132 (3d Cir. 2019) (citing Poulis, 747 F.2d at 868).
“Dismissal with prejudice is an ‘extreme’ sanction” that should be employed as a “last,
not first, resort.” Hildebrand, 923 F.3d at 132 (quoting Nat’l Hockey League v. Metro Hockey
Club, Inc., 427 U.S. 639, 643 (1976), and Poulis, 747 F.2d at 867, 869). A close case should “be
is a sanction rightfully in the district courts’ toolbox,” and the Third Circuit “has not hesitated to
affirm the district court’s imposition of sanctions, including dismissals in appropriate cases." Id.
(citing Poulis, 747 F.2d at 867 n. 1).
Here, the sole basis for dismissal was plaintiff's failure to keep the court informed of his
change of address. With the lack of a viable address, the report and recommendation noted that
plaintiff had effectively abandoned his claims because he had not corresponded with the court for
nearly a year. But tellingly, plaintiff had never been ordered to respond to defendants'
substantive motions to dismiss "because all of the Defendants ha[d] not responded to the
Amended Complaint." Report and Recommendation (Doc. No. 56) at p.2. Nor had the court
entered a case management order or briefing schedule requiring further action or submission by
plaintiff. In other words, but for failing to keep his address current, plaintiff was not delinquent
in complying with the court's orders or moving the case forward in any way at the time the report
and recommendation was issued. The ability to communicate with plaintiff and assure his
ongoing participation in the lawsuit as hereafter ordered has been rectified by plaintiff's own
efforts. For these reasons, dismissal for failure to prosecute is too harsh and thus an
inappropriate sanction at this juncture.1
Plaintiff's motion for leave to amend will be denied. The decision to grant or deny leave
under Rule 15(a) is within the sound discretion of the district court. Coventry v. U.S. Steel
Corp., 856 F.2d 514, 518 (3d 1988) (citing Foman v Davis, 371 U.S. 178, 182 (1962)). Leave to
amend is to be granted "when justice so requires" and generally leave to amend is to be granted
“unless equitable considerations render it otherwise unjust.” Southeastern Pennsylvania
2020) (quoting Rule 15(a)(2) and Arthur v. Maersk, 434 F.3d 196, 204 (3d Cir. 2006)).
"Grounds potentially justifying denial of leave to amend are 'undue delay, bad faith,
dilatory motive, prejudice, and futility.'" Orrstown Financial Services, 335 F.R.D. at 61 (citing
Foman, 371 U.S. at 182 and In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d
Cir. 1997)). Courts in this jurisdiction have "consistently recognized . . . that 'prejudice to the
non-moving party is the touchstone for the denial of an amendment.'" Id. (citing Arthur, 434
F.3d at 204 (quoting Lorenz v. CSX Corp., 1 F.3d 1406, 1413-14 (3d Cir. 1993)). In this setting
"'prejudice' focuses on hardship to the defendant if the amendment were permitted, specifically,
whether amendment 'would result in additional discovery, cost, and preparation to defend against
new facts or new theories.'" Id. (quoting Cureton v. Nat'l Collegiate Athletic Ass'n, 252 F.3d
267, 273 (3d Cir. 2001)). And in demonstrating such prejudice, "the non-moving party must do
more than merely claim prejudice; 'it must show that it [would be] unfairly disadvantaged or
deprived of the opportunity to present facts or evidence.'" Id. (quoting Bechtel v. Robinson, 886
F.2d 644, 652 (3d Cir. 1989) (quoting Heyl & Patterson Int'l v. F.D. Rich Housing, 663 F.2d
419, 426 (3d Cir. 1981)).
Several of the defendants have been waiting for close to a year (and in one case over a
year) to have their initial motions to dismiss resolved. Plaintiff has never responded to those
motions. And instead of addressing those motions on their merits when directed to respond to
the report and recommendation addressing his failure to prosecute, plaintiff instead sought to do
an end-run around the issues raised in those motions by injecting a whole new series of events
into the litigation. Those events pertain to a different arrest by different individuals. He then
filed no fewer than ten new motions relating to his most recent November 30, 2024, arrest and
proposed amended complaint. Failing to resolve the initial long-pending motions to dismiss
events occurring over a year later constitute sufficient prejudice to deny plaintiff's current motion
for leave to amend. And in light of this disposition, all of his recent motions relating to his
proposed amended complaint will be denied as moot.
For the reasons set forth above, defendants' motion to dismiss for failure to prosecute will
be denied; plaintiff's motion to file an amended complaint will be denied; and plaintiff's motions
pertaining to the issues raised in the proposed amended complaint will be denied as moot. The
case will be referred back to Magistrate Judge Brown for further proceedings consistent with this
Memorandum Opinion and accompanying order.
Date: February 26, 2025
s/David Stewart Cercone
David Stewart Cercone
Senior United States District Judge
cc: The Honorable Christopher B. Brown,
United States Magistrate Judge
Counsel of Record
(Via CM/ECF Electronic Mail)
Richard Arrington
226 29th St.
Erie PA 16504
(Sent Via First Class Mail)