Leppien

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

DANIEL S. LEPPIEN, :

Plaintiff : CIVIL ACTION NO. 3:23-1773

V. : (JUDGE MANNION)

LAUREL HARRY, et al., :

Defendants :

MEMORANDUM

Currently before the Court are Defendants’ motion to dismiss pro se

Plaintiff Daniel S. Leppien (“Leppien”)’s amended complaint under Federal

Rule of Civil Procedure 12(b)(6) and their motion to dismiss this action for

lack of prosecution under Federal Rule of Civil Procedure 41(b). Leppien did

not file a response to either motion. For the reasons stated below, the Court

will grant Defendants’ Rule 41(b) motion to dismiss for lack of prosecution,

dismiss Leppien’s amended complaint with prejudice, deny Defendants’ Rule

12(b)(6) motion to dismiss as moot, and direct the Clerk of Court to close this

case.

I. BACKGROUND

Leppien, a convicted and sentenced state prisoner currently

incarcerated at Pennsylvania State Correctional Institution Camp Hill (“SCI

Camp Hill’), commenced this action by filing a complaint on October 16,

2023.' (Doc. 1.) Leppien named as Defendants Laurel Harry (“Harry”), the

Secretary of the Commonwealth of Pennsylvania Department of Corrections

(“DOC”), M. Gourley (“Gourley”), the Superintendent at SCI Camp Hill; A.

Davidson (“Davidson”), a Unit Manager at SCI Camp Hill; M. Wright

(“Wright”), a corrections officer at SC] Camp Hill; and Lance R. Ossman

(‘Ossman”), an inmate at SCI Camp Hill. (/d. at 1, 2-3; Doc. 1-1 at 1-2.)

Leppien’s allegations primarily related to actions by Ossman, Wright,

and Davidson during a period where he was incarcerated in a Residential

Treatment Unit (“RTU”) at SCI Camp Hill. See (Doc. 1-1 925). He alleged

1 Although the Clerk of Court did not docket the complaint until October

26, 2023, Leppien indicated that he placed it in the prison mail system for

mailing on October 16, 2023. (Doc. 1 at 7.) Pursuant to the federal prisoner

mailbox rule, the Court deems the complaint to be filed as of October 16,

2023. See Houston v. Lack, 487 U.S. 266, 276 (1988) (concluding that

prisoner's submission is deemed filed “at the time [the prisoner] delivered it

to the prison authorities for forwarding to the court clerk’).

Additionally, when he filed his complaint, Leppien did not remit the filing

fee or apply for leave to proceed in forma pauperis. As such, an

Administrative Order issued on October 26, 2023, requiring him to either

remit the fee or seek leave to proceed in forma pauperis in thirty days or risk

dismissal of this action. (Doc. 4.) In response, Leppien timely remitted the

filing fee on November 17, 2023. (Doc. 6.)

2 In filing his complaint, Leppien completed the form for civil rights

complaints by pro se prisoners (Doc. 1) and submitted a typewritten

complaint (Doc. 1-1). Due to the difficulty the Court had with reading

Leppien’s handwriting on the form complaint, the Court mostly relies on the

typewritten complaint in ascertaining Leppien’s factual allegations and

causes of action asserted in his original complaint.

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that Ossman threatened to assault him, solicited others to assault him, or

personally assaulted him, on four separate dates between July 1, 2022, and

July 6, 2023. See (id. JJ10—-21). As for Wright and Davidson, Leppien

generally alleged that they were abusive towards him on various occasions

from May 2023 through mid-July 2023. See (id. ]]24-31.) In addition to

these allegations against Ossman, Wright, and Davidson, Leppien indicated

that he wanted to challenge the DOC’s Inmate Grievance Policy, DC-ADM

804. See (id. 34). Overall, Leppien alleged that he “was abused, retaliated

against, targeted[,] and had all of his constitutionality taken away, which

violated his 5th, 8th, and 14th Amendment right [sic].” (/d.) He also “fe[It that]

$2,000,000 should be awarded in his favor,” (/d.), and he requested that

Defendants be enjoined from retaliating against him and assaulting him. See

(Doc. 1 at 5).

On November 29, 2023, the Court entered an Order which, inter alia,

treated Leppien’s complaint as asserting claims for constitutional violations

under 42 U.S.C. §1983 and, therefore, dismissed Leppien’s claims against

Ossman because there were no factual allegations showing that Ossman,

since he was another inmate, acted under color of state law for purposes of

Section 1983 liability. See (Doc. 7 at 4 & n.1.) In addition, the Court directed

that the Clerk of Court send waiver of service forms to the remaining

Defendants, Harry, Gourley, Davidson, and Wright (collectively,

“Defendants”). See (id. at 1).

Defendants waived service (Doc. 10), and they filed a Rule 12(b)(6)

motion to dismiss the complaint on January 29, 2024 (Doc. 11). Before

Defendants filed a brief in support of their motion, Leppien fied a “Motion to

Alter the Complaint and Judgement [sic] Under Fed.R.Civil.proc.Rule [sic]

59(E) [sic],” which the Clerk of Court docketed on February 27, 2024. (Doc.

14.) In this motion, Leppien appeared to ask the Court to treat the motion as

an amended complaint and allow him to add allegations akout events that

transpired since he filed his original complaint as well as add a new

defendant to the case. See (id. J[3, 5—9.)

Defendants initially treated Leppien’s motion as an amende:d complaint

and, as such, they filed a motion to dismiss the amended corplaint on March

4, 2024. (Doc. 17.) On March 15, 2024, Defendants filed a motion for an

extension of time to file a brief in support of their motion tc disimiss. (Doc.

18.) On April 17, 2024, Defendants filed several documeri, including a

motion to withdraw their motion to dismiss the amended complaint, a motion

to partially dismiss the amended complaint, a motion to exceed the page

limitations set by Local Rule 7.8(b)(3), and a brief in suppor. of their motion

to partially dismiss the amended complaint. (Docs. 20-23.)

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Approximately a week later, Leppien filed a motion to compel

discovery. (Doc. 24). On July 19, 2024, Leppien filed “Rule 31(B)(c)(2)

Depositions by written [sic] Questions,” which appears to have been

intended for Defendants. (Doc. 25.)

On August 29, 2024, the Court, in the interests of judiciai efficiency and

economy, entered an Order which, inter alia, (1) granted Leppien leave to

file an amended complaint by September 27, 2024, (2) denied Leppien’s

motion to compel discovery as premature, (3) dismissed Defendants’

motions to dismiss Leppien’s original complaint and purported amended

complaint without prejudice, and (4) directed the Clerk of Court to strike

Leppien’s interrogatories from the docket. (Doc. 26.) The Court also

instructed the parties that if Leppien did not file an amended complaint by

September 27, 2024, the case would proceed on his origina] complaint, and

Defendants could file an appropriate response to the original complaint. (/d.

410.) Leppien did not file an amended complaint, and Defendants filed a

motion to dismiss the original complaint and a brief in support of the motion

on October 8, 2024, and November 6, 2024, respectively. (Docs. 27, 29.)°

Leppien did not file a response in opposition to the motion tc dismiss.

3 Defendants sought and received an extension of timeto file their brief

in support of their motion to dismiss. (Docs. 28, 30.)

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On February 18, 2025, the Court issued a Memorandum and Order

which, inter alia: (1) granted Defendants’ motion to dismiss Leppien’s

complaint insofar as they sought dismissal of his Section 1983 claims for

violations of his due process rights under the Fifth and Fourteenth

Amendments as well as his Eighth Amendment conditions-of-confinement

claims, and dismissed those claims with prejudice, see (Docs. 31 at 17-18,

27-28, 36-39, 45; 32 at 1-2); (2) granted Defendants’ motion to dismiss

insofar as they sought dismissal of Leppien’s Section 1983 official-capacity

claims for monetary damages and_ individual-capacity claims for

compensatory damages, claims against Harry and Gourley for their lack of

personal involvement, and Eighth Amendment failure-tc-protect claims

relating to Ossman’s conduct towards him, and dismissed those claims

without prejudice, see (Docs. 31 at 18-27, 33-36, 45; 32 at 1-2); (3) denied

Defendants’ motion to dismiss insofar as they sought dismissal of Leppien’s

First Amendment retaliation claim against Davidson, see (Docs. 31 at 39-

43, 45; 32 at 1-2); and (4) dismissed with prejudice Leppien’s Section 1983

claims pertaining to DC-ADM 804 pursuant to the Court’s screeining authority

under 28 U.S.C. §1915A. See (Docs. 31 at 43-45; 32 at 2) Tlie Court also

granted Leppien leave to file an amended complaint within thirty days and

warned him that the case would proceed on only his Frst Amendment

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retaliation claim against Davidson and Eighth Amendment failure-to-protect

claim against Wright if he did not timely file an amended complaint. See (Doc.

32 at 2-3).

Leppien filed a timely amended complaint, which the Clerk of Court

docketed on March 10, 2025. (Doc. 33.) Leppien once again asserts Section

1983 claims against all Defendants named in his original complaint. See (id.

at 1-3). Leppien alleges that while he was incarcerated at SCI Camp Hill on

October 16, 2023, the following occurred:

[Davidson, Harry, Gourley, and Wright flailed to do their job as

employees of the [DOC] and inadvertly [sic] put my life in danger

by [t]elling inmates of [t]he nature of the charges | am in prison

over. | was put in situations where | was verbally harassed, put

in danger[,] and degraded due to the actions of the employees of

the [DOC].

(/d. at 4.) Leppien asserts that these actions violated his Eighth Amendment

right to be free from cruel and unusual punishment and constituted retaliation

in violation of the First Amendment. See (id. at 5). He describes his injuries

as “[d]jenial of grievance remedies due to pain [and] suffering, mental [sic]

anguish.” (/d.) For relief, Leppien seeks “injunctive relief.” (/d.)

On March 25, 2025, Defendants filed a Rule 12(b)(6) motion to dismiss

Leppien’s amended complaint (Doc. 34), and they filed a brief in support of

their motion on April 9, 2025 (Doc. 35). On April 24, 2025, Leppien filed a

motion for an extension of time to file a response to Defendants’ motion to

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dismiss (Doc. 36), and he filed a motion to appoint counsel on May 21, 2025

(Doc. 37). On September 29, 2025, the Court issued an Order granting

Leppien’s motion for an extension of time to file a response to Defendants’

motion to dismiss, extended the time for him to file a response to October

20, 2025, and denied without prejudice his motion to appoint counsel. See

(Doc. 38 at 1-2).

To date, Leppien has not filed a response to Defendants’ Rule 12(b)(6)

motion to dismiss or sought another extension of time to do so. Due to this

failure, Defendants filed a Rule 41(b) motion to dismiss this action for lack of

prosecution, along with a supporting brief, on February 5, 2026. (Docs. 40,

41.) Leppien also failed to file a response to this motion or seek an extension

of time to file a response. As such, Defendants’ motions to dismiss are ripe

for resolution.

ll. LEGAL STANDARDS

A. Motions to Dismiss Under Rule 12(b)(6)

The Federal Rules of Civil Procedure require that a complaint contain

“a short and plain staternent of the claim showing trat the plea is erttitled

to relief.” Fed. R. Civ. P. 8(a)(2). This standard “does not ecuire detailed

factual allegations, but it demands more than an unadorned. thie-defendant-

unlawfully-harmed me accusation.” Ashcroft v. Iqbal, 556 UIl.S. 662, 678

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(2009) (internal quotations omitted). Thus, a complaint that contains only

“labels and conclusions,” or a “formulaic recitation of the elements of a cause

of action” is insufficient. /d.

A defendant may move to dismiss a complaint “for failure to state a

claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive

a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” /qbal,

556 U.S. at 678. Facial plausibility is achieved “when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” /d. Plausibility does not

require probability but “more than a sheer possibility that a defendant has

acted unlawfully.” /d. Facts “merely consistent with” liability do not satisfy this

standard. /d.

While the Court at this stage accepts the complaint’s factual allegations

as true, the Court does not do so to a plaintiff's legal conclusions. See id.

(“Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.”). In addition, “[djetermining whether

a complaint states a plausible claim for relief’ is “a context-soecific task that

requires the reviewing court to draw on its judicial experience and common

sense.” /d. at 679.

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This federal pleading standard requires district courts to conduct the

following analysis when addressing a motion to dismiss a complaint:

First, the factual and legal elements of a claim should be

separated. The District Court must accept all of the complaint’s

well-pleaded facts as true, but may disregard any legal

conclusions. Second, a District Court must then determine

whether the facts alleged in the complaint are sufficient to show

that the plaintiff has a plausible claim for relief. In other words, a

complaint must do more than allege the plaintiff's entitlement to

relief. A complaint has to show such an entitlement with its facts.

Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (internal

citations and quotations omitted).

Pro se filings must be construed “liberally.” Vogt v. Wetzel, 8 F.4th 182,

185 (3d Cir. 2021). That means that the Court should “remain flexible,” and

“apply the relevant legal principle even when the complaint has failed to

name it.” /d. It does not mean, however, that pro se litigants may “flout

procedural rules—they must abide by the same rules that apply to all other

litigants.” /d. Thus, “pro se litigants still must allege sufficient facts in their

complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d

239, 245 (3d Cir. 2013).

B. Involuntary Dismissals Under Rule 41(b)

Rule 41(b) allows for the dismissal of an action for failure of a plaintiff

“to prosecute or to comply with these rules or a court order[.]’ Fed. R. Civ. P.

41(b). District courts also have the inherent power to dismiss an action sua

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sponte for failure to prosecute. See Chambers v. NASCO, Inc., 501 U.S. 32,

44 (1991); see also R & C Oilfield Servs. LLC v. Am. Wind Transp. Grp. LLC,

45 F.4th 655, 661 (3d Cir. 2022) (stating that “[c]ourts possess inherent

power to manage their own affairs so as to achieve the orderly and

expeditious disposition of cases” and that “[t]his includes the authority to

dismiss a case for lack of prosecution” (citation, internal citation, and internal

quotation marks omitted)).

When determining whether to dismiss an action with prejudice for a

plaintiff's failure to prosecute under Rule 41(b), the Court considers and

balances the following six (6) factors identified by the Third Circuit Court of

Appeals:

(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, 868-70 (3d Cir. 1984):

see also Spain v. Gallegos, 26 F.3d 439, 454-55 (3d Cir. 1994) (“Ordinarily,

when a court is determining sua sponte or upon motion of a defendant

whether to dismiss because of a plaintiff's failure to prosecute” the court must

consider the Poulis factors). However, no single factor is dispositive, and not

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all factors must be satisfied for the Court to dismiss an action. See Mindek

v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992); Briscoe v. Klaus, 538 F.3d

252, 263 (3d Cir. 2008) (stating that “we have also made it clear that ‘not all

of the Poulis factors need be satisfied in order to dismiss a complaint”

(quoting Mindek, 964 F.2d at 1373)). Nevertheless, because “dismissals

with prejudice ... are drastic sanctions’. . . it is imperative that the District

Court have a full understanding of the surrounding facts and circumstances

pertinent to the Poulis factors before it undertakes its analysis.” See Briscoe,

538 F.3d at 258 (quoting Poulis, 747 F.2d at 867-68).

C. Dismissing Actions When a Plaintiff Fails to File a Response

to a Rule 12(b)(6) Motion to Dismiss

Local Rule 7.6 provides that a plaintiff must file a response to a

defendant’s Rule 12(b)(6) motion to dismiss within fourteen days after

service of the moving defendant's brief in support of the motion. See M.D.

Pa. L.R. 7.6 (“Any party opposing any motion, other than a motion for

summary judgment, shall file a brief in opposition within fourteen (14) days

after service of the movant’s brief... .”). They also provide that the Court

will deem a plaintiff to be unopposed to the Court granting the Rule 12(b)(6)

motion if they fail to timely respond to the motion. See id. (“Any party who

fails to comply with this rule shall be deemed not to oppose such motion.”).

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Despite the express language of this Local Rule, the Third Circuit in

Stackhouse v. Mazurkiewicz, 951 F.2d 29 (3d Cir. 1991), established certain

guideposts for district courts before granting Rule 12(b)(6) motions as

unopposed pursuant to a Local Rule. In Stackhouse, the Third Circuit held

that district courts generally should not dismiss an action “solely on the basis

of [a] local rule without any analysis of whether the [operative] complaint

failed to state a claim upon which relief can be granted, as provided in [Rule]

12(b)(6),” because “the case is simply not being dismissed because the

[operative] complaint has failed to state a claim upon which relief may be

granted. Rather, it is dismissed as a sanction for failure to comply with the

local court rule.” 951 F.2d at 30 (citing Anchorage Assocs. v. V.I. Bd. of Tax.

Rev., 922 F.2d 168, 174 (3d Cir. 1990)); see also Cammarano v. Weaver,

No. 25-cv-2117, 2026 WL 27561, at *2 (E.D. Pa. Jan. 5, 2026) (“[G]ranting a

defendant’s motion to dismiss a case where the plaintiff has failed to respond

thereto is effectively akin to sanctioning the plaintiff for failing to comply with

a local rule or court order.” (citing Stackhouse, 951 F.2d at 29-30)).

However, in articulating this holding, the Third Circuit emphasized that “our

holding is not broad” and did “not suggest that the district court may never

rely on the local rule to treat a motion to dismiss as unopposed and subject

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to a dismissal without a merits analysis.” Stackhouse, 954 F.2d at 30.

Instead, the Third Circuit explained that:

There may be some cases where the failure of a party to oppose

a motion will indicate that the motion is in fact not opposed,

particularly if the party is represented by an attorney and in that

situation the rule may be appropriately invoked. Nor do we

suggest that if a party fails to comply with the rule after a specific

direction to comply from the court, the rule cannot be invoked.

Id.

Following Stackhouse, the Third Circuit has repeatedly stated that

district courts should generally not dismiss actions based swiely on a local

rule in circumstances where the plaintiff failed to respond to a Rule 12(b)(6)

motion to dismiss. See, e.g., Regaolo v. Target Corp., No. 25-2514, 2026

WL 280891, at *1 (3d Cir. Feb. 3, 2026) (unpublished) (concluding that the

district court “abused its discretion” in dismissing the pro se plaintiff's

complaint for failing to oppose the defendant's Rule 12(&)(6) motion);

Brzozowski v. Pa. Tpk. Comm'n, 738 F. App’x 731, 734 (3d Cir. 2018)

(unpublished) (determining that the district court erred in granting

defendants’ Rule 12(b)(6) motion to dismiss the plaintiffs amended

complaint as unopposed); cf. Washington v. Wenerowicz, No 2:1-2741, 2022

WL 39870, at *2 n.5 (3d Cir. Jan. 5, 2022) (unpublished) (“To the extent that

the District Court may have granted the Medical Defendanits’ motion to

dismiss as unopposed pursuant to [Eastern District of Penisiylvania Local

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Rule 7.1(c)], based on Washington’s failure to file a response, this would

likely be improper.”). Because “[a] dismissal of this kind is ‘a sanction for

failure to comply with the local court rule,” district courts “generally must

consider the relevant factors set forth in [Poulis]” before taking “the drastic

step of dismissing a complaint as a sanction.” Regaolo, 2026 WL 280891, at

(quoting Stackhouse, 951 F.2d at 30). Nevertheless, “[t]here are

exceptions to these principles[,] such as when a counseled party truly does

not oppose a motion, when a party fails to comply with a rule despite a

specific directive to do so, or when a party’s conduct makes adjudication of

the case impossible... .” /d. at *1 n.2 (citations omitted).

D. Section 1983

Section 1983 is the statutory vehicle by which private citizens may

seek redress for violations of federal constitutional rights committed by state

officials. See 42 U.S.C. §1983. This statute states in pertinent part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution of laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper

proceeding for redress....

Id. “Section 1983 is not a source of substantive rights,” but is merely a means

through which “to vindicate violations of federal law committed by state

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actors.” Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa.

2004) (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002)). “To

state a claim under §1983, a plaintiff must allege the violation of a right

secured by the Constitution and laws of the United States, and must show

that the alleged deprivation was committed by a person acting under color of

state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

E. First Amendment Retaliation Claims

To plead a prima facie First Amendment retaliation claim, a plaintiff

must allege that: “(1) [their] conduct was constitutionally protected; (2) [they]

suffered an adverse action at the hands of prison officials; and (3) [their]

constitutionally protected conduct was a substantial or motivating factor in

the decision to discipline [them].” Watson v. Rozum, 834 F.3d 417, 422 (3d

Cir. 2016) (citations omitted). As for the first element of a plaintiff's prima

facie case, the filing of lawsuits and prison grievances constitutes activity

protected by the First Amendment. See id. (reiterating prior holding that a

prisoner-plaintiff engages in constitutionally protected activity when they file

a grievance against a prison official (citing Mitchell v. Horn, 218 F.3d 523,

530 (3d Cir. 2003))); Smith v. Mensinger, 293 F.3d 641, 653 (3d Cir. 2002)

(acknowledging its prior holding “that falsifying misconduct reports in

retaliation for an inmate’s resort to legal process is a violation of the First

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Amendment's guarantee of free access to the courts” (citation omitted));

Allah v. Seiverling, 229 F.3d 220, 223-25 (3d Cir. 2000) (concluding that the

prisoner-plaintiff stated a First Amendment retaliation claim where he alleged

that he had been kept in administrative segregation in retaliation for filing civil

rights claims against prison officials).

Regarding the second element of a plaintiff's prima facie case, an

adverse action is one that is “sufficient to deter a person of ordinary firmness

from exercising [their] [constitutional] rights[.]” Mitchell, 312 F.3d at 530

(second alteration in original) (citations and internal quotation marks

omitted); Fantone v. Latini, 780 F.3d 184, 191 (3d Cir. 2015), as amended

(Mar. 24, 2015) (explaining that an adverse action must be “sufficient to deter

a person of ordinary firmness from exercising [their] constitutional rights . . .”

(citation omitted)). However, to be actionable under Section 1983, the

alleged adverse action must be more than de minimis. See McKee v. Hart,

436 F.3d 165, 170 (3d Cir. 2006) (explaining that the alleged retaliatory

conduct “need not be great in order to be actionable, but it rnust be more

than de minimis” (citations and internal quotation marks omitted)).

Finally, as for the third element of a plaintiff's prima faicie case, the

Court observes that, “[b]ecause motivation is almost never sulbject to proof

by direct evidence,” a plaintiff must typically “rely on circumstaintial evidence

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to prove a retaliatory motive.” Watson, 834 F.3d at 422. The plaintiff “can

satisfy [their] burden with evidence of either (1) an unusually suggestive

temporal proximity between the protected activity and the allegedly

retaliatory action, or (2) a pattern of antagonism coupled with timing that

suggests a causal link.” /d. (footnote omitted).

F. Eighth Amendment Failure-to-Protect Claims

For a prisoner-plaintiff to plausibly allege an Eighth Amendment failure-

to-protect claim they must allege that: (1) they were incarcerated under

conditions posing a substantial risk of serious harm; and (2) the prison

officials involved had a sufficiently culpable state of mind. See Farmer v.

Brennan, 511 U.S. 825, 834 (1994). Specifically, the inmate must allege facts

showing that the prison official knew of and disregarded an excessive risk to

inmate health or safety. See Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir.

1997).

lll. DISCUSSION

Defendants move for dismissal of Leppien’s amended cornplaint for his

failure to prosecute under Rule 41(b) insofar as he “disregard[ed] this Court's

Order to respond to [their mJotion to [d]ismiss” and otherwise fail to act in this

case during the past several months. See (Doc. 41 at 1-4). The Court will

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grant this motion and dismiss this action with prejudice due to Leppien’s

failure to prosecute.*

In reaching this decision, the Court notes that if Defendants had not

filed their Rule 41(b) motion to dismiss for lack of prosecution, this Court

likely could not grant their Rule 12(b)(6) motion to dismiss as unopposed

based on applicable Third Circuit caselaw. Although Defendants correctly

point out that Leppien did not file a response to their Rule 12(b)(6) motion

despite the Court’s September 29, 2025 Order extending the time for him to

file his response to October 20, 2025, see (Doc. 38 at 1), the Court did not

direct him to file a response and warn him that his failure to file a response

could result in the dismissal of this case for failure to prosecute. See, e.g.,

Brzozowski, 738 F. App’x at 734 (explaining that, inter alia, before dismissing

the plaintiff's operative complaint, the district court directed him to respond

to the motion, warned him that dismissal was possible if he failed to respond,

and the plaintiff failed to respond, and noting that “[t]hese considerations

[were] relevant to some of the Poulis factors” but did “not warrant dismissal

by themselves”). Moreover, because dismissing an action for failure to

prosecute is an “extreme sanction reserved for the instances in which it is

“ Because the Court is granting Defendants’ Rule 41(b) motion, the

Court will not address their Rule 12(b)(6) motion and will deny it as moot.

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justly merited,” Ware v. Rodale Press, Inc., 322 F.3d 218, 221~22 (3d Cir.

2003), a district court should “provide the plaintiff with an opportunity to

explain [their] reasons for failing to prosecute the case . . . prior to dismissing

[the] case.” Briscoe, 538 F.3d at 258. This Court has not issued an Order

directing Leppien to explain his failure to act in this case. Therefore, if

Defendants did not file their Rule 41(b) motion, the Court would have to issue

at least one additional Order, to which Leppien would have to not respond or

insufficiently respond, before considering whether to dismiss iris action as a

sanction for his failure to respond to Defendants’ Rule 12(b)(6) motion to

dismiss.

Since, however, Defendants filed a Rule 41(b) motion to dismiss for

lack of prosecution based primarily on Leppien’s failure to respand to their

Rule 12(b)(6) motion, and he has not responded to this nnotion, the

circumstances here compel a different result. It does not appear that the

Third Circuit has addressed the viability of a Rule 41(b) involuntary dismissal

for lack of prosecution in circumstances where a pro Se plaintiff not only failed

to respond to a defendant’s Rule 12(b)(6) motion to dismiss, but they aise

failed to respond to a defendant’s Rule 41(b) motion to disniss: for lack of

prosecution based primarily on the plaintiff's failure to respond to the Rule

12(b)(6) motion to dismiss. Nevertheless, the Third Circuit's expressed

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concerns in situations where a district court grants a Rule 12(b)(6) motion as

unopposed are ameliorated in this case due to Defendants filing their Rule

41(b) motion to dismiss for lack of prosecution.

Defendants’ Rule 41(b) motion provides Leppien with notice of the

grounds for their motion—his failure to prosecute by, inter alia, failing to

respond to their Rule 12(b)(6) motion—and informs him that they are

requesting to have the Court dismiss his action with prejudice as a sanction

for his failure to prosecute. This motion also provides Leppien with the

opportunity to explain his failure to prosecute and argue to the Court why

dismissal for lack of prosecution is unwarranted. Overall, Defendants’ Rule

41(b) motion to dismiss notifies Leppien that the Court could sanction him by

dismissing this action for his failure to prosecute and provides him with the

opportunity to be heard before the Court resolves the motion.

Considering that Leppien also failed to respond to Defendants’ Rule

41(b) motion, the Court could deem him to be unopposed to the Court

granting the motion pursuant to Local Rule 7.6. However, considering that

the Third Circuit has reiterated that a district court should not dismiss an

action with prejudice without considering the Poulis factors except in limited

circumstances which are not present in this case, see Regavolo, 2026 WL

280891, at *1 n.2 (discussing exceptions), the Court will now analyze and

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balance each Poulis factor to determine whether dismissing this action with

prejudice for lack of prosecution is warranted.

A. The Party’s Personal Responsibility

The first factor is the extent of the party’s personal responsibility. Here,

Leppien is personally responsible for his failure to respond to Defendants’

motions to dismiss, as well as to prosecute this case generally. Leppien is

prosecuting this matter in a pro se capacity and has no one else to blame for

his failure to act in this case. See Briscoe, 538 F.3d at 258-59 (“[lI]t is logical

to hold a pro se plaintiff personally responsible for delays in [their] case

because a pro se plaintiff is solely responsible for the progress of [their] case

....); see also Clarke v. Nicholson, 153 F. App’x 69, 73 (3d Cir. 2005)

(unpublished) (“[UJnlike a situation where dismissal is predicated upon an

attorney’s error, the plaintiff here was pro se and directly responsible for her

actions and inaction in the litigation.”). Therefore, since Leppien is personally

responsible for failing to prosecute this case, had approximately one year to

file a response to Defendants’ Rule 12(b)(6) motion and approximately forty-

five days to file a response to their Rule 41(b) motion and failed to respond,

and had notice by virtue of Defendants’ Rule 41(b) motion tnat he risked

dismissal of this case if he failed to respond, this first factor heavily weighs

in favor of dismissal.

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B. Extent of Prejudice to Defendants

The second factor is the extent of prejudice to Defendants due to

Leppien’s failure to prosecute. “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 (citation and internal quotation

marks omitted). However, 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.” /d. (citations

and internal quotation marks omitted). For example, prejudice can “include

the burden that a party must bear when forced to file motions in response to

the strategic discovery tactics of an adversary[.]” Ware, 322! F.3d at 223

(citation omitted); see also Poulis, 747 F.2d at 868 (concluding that the

district court’s finding of prejudice to the defendant was “supported by the

record’ where “[t]he interrogatories were never answered nor were

objections filed[, and] defense counsel was obliged to file a motion to compel

answers, and was obliged to file its pretrial statement without thie opportunity

to review plaintiffs’ pretrial statement which was due to be fileci first’).

Here, this second factor weighs against dismissal. “At {this point, the

Defendants’ motion[s] to dismiss [are] still pending, and as ‘ai’ as the Court

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is aware, no further action has been taken by the Defendants and no further

costs incurred.” Cleary v. Atria Mgmt. Co., LLC, No. 15-cv-2779, 2015 WL

4770913, at *2 (E.D. Pa. Aug. 13, 2015) (citing Deen—Mitchell v. Lappin, 514

F. App’x 81, 87 (3d Cir. 2013) (unpublished)); see also Deen-Mitchell, 514

F. App’x at 87 (“[W]e cannot determine how the proposed defendants have

been prejudiced because the case did not have the opportunity to proceed

to discovery and because [the plaintiff]’s complaint gives adequate notice of

his claims.”).

C. The Plaintiff's History of Dilatoriness

The third factor is whether Leppien has a history of dilatoriness, which

can be shown where there has been “extensive or repeated delay or

delinquency . . . such as consistent non-response to interrogatories, or

consistent tardiness in complying with court orders.” Adams v. Trustees of

N.J. Brewery Emps.’ Pension Tr. Fund, 29 F.3d 863, 873-74 (3d Cir. 1994).

In this case, Leppien has demonstrated a history of dilatoriness. He never

filed an amended complaint following the Court’s August 29, 2024 Order,

despite having a month to do so (Doc. 26), and he did not file a response to

Defendants’ Rule 12(b)(6) motion to dismiss his original complaint (Doc. 27),

resulting in the Court resolving Defendants’ motion approximately three

months after they filed their supporting brief without any input from Leppien

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(Docs. 31, 32). Additionally, over the past year, Leppien failed to respond to

Defendants’ Rule 12(b)(6) motion to dismiss his amended complaint (despite

receiving an extension of time to do so). Moreover, even though Defendants

filed their Rule 41(b) motion to dismiss, which placed Leppien on notice of

the possibility that the Court could dismiss this action with prejudice for his

lack of prosecution, he still did not respond or seek an extension of time to

do so. Accordingly, this factor weighs in favor of dismissal.

D. Whether the Plaintiff's Conduct Was Willful or in Bad Faith

The fourth factor is whether Leppien’s conduct was willful or in bad

faith. In evaluating this factor, the Court must determine whether the conduct

at issue reflects mere inadvertence or negligence, or conversely, whether it

is “the type of willful or contumacious behavior which [can be? characterized

as ‘flagrant bad faith.”” Scarborough v. Eubanks, 747 F.2d 871, 875 (3d Cir.

1984) (citing Natl Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639,

643 (1976)): see also Beaver Res. Corp. v. Brawand, 618 F. App’x 736, 739

(3d Cir. 2015) (unpublished) (“Willfulness and bad faith go beyond mere

negligence and involve intentional or self-serving benavior.”). Here, Leppien

has not acted despite the Court granting him an extension to respond to

Defendants’ Rule 12(b)(6) motion and the filing of Defendants’ Rule 41(b)

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motion to dismiss. Therefore, the Court finds his conduct to be willful, and

this fourth factor weighs in favor of dismissal.°

E. The Effectiveness of Sanctions Other Than Dismissal

The fifth factor is the effectiveness of sanctions other than dismissal.

“‘[SJanctions less than dismissal [are] ineffective when a litigant . . . is

proceeding pro se and in forma pauperis.” Lopez v. Cousins, 435 F. App’x

113, 116 (3d Cir. 2011) (unpublished) (citing Briscoe, 538 F.3d at 262-63):

see also Briscoe, 538 F.3d at 262-63 (“[W]here a plaintiff is proceeding pro

se, and moreover, is proceeding in forma pauperis, we have upheld the

District Court’s conclusion that no alternative sanctions existed because

monetary sanctions, including attorney's fees, ‘would not be an effective

alternative.” (quoting Emerson v. Thiel Coll., 296 F.3d 184, 191 (3d Cir.

2002))).

In this case, Leppien is proceeding pro se but not in forma pauperis,

as he paid the filing fee for this case. Nevertheless, because Leppien

remains incarcerated and indicated in his motion to appoint counsel that he

is unable to afford counsel, see (Doc. 37 at 1), the Court does not find that

° Even if the Court determined that Leppien’s conduct was not willful,

see, e.g., El-Hewie v. Paterson Pub. Sch. Dist., No. 13-cv-5820, 2015 WL

5306255, at *4 (D.N.J. Sept. 10, 2015) (considering fourth Poulis factor and

noting that the plaintiff had been “silent, and. . . silence is ambiguous’), the

Court would consider this factor to be neutral.

- 26 -

the threat of monetary compliance (including fines, costs, or payment of

attorney’s fees), or another other available sanction, is likely to prompt his

compliance. Accordingly, this fifth factor weighs in favor of dismissal.

F. The Meritoriousness of the Claims

The sixth and final factor is the meritoriousness of Leppien’s claims in

his amended complaint.® The standard for meritoriousness is whether the

6 In his original complaint, Leppien alleged that all or some of

Defendants violated his constitutional rights from July 1, 2022, through mid-

July 2023. See (Doc. 1-1 9910-21, 24-31). In his amended complaint,

Leppien asserts that his Section 1983 claims relate to events which occurred

on a single date, October 16, 2023, which was approximately three months

after the last event described in his original complaint and was the date he

filed his original complaint. See (Doc. 33 at 4). Thus, instead of filing an

amended complaint, Leppien filed a supplemental complaint. See 6A

WRIGHT & MILLER’S FEDERAL PRACTICE & PROCEDURE §1504 (3d ed. updated

Sept. 2025) (“Amended and supplemental pleadings differ in two respects.

The former relate to matters that occurred prior to the filing of the original

pleading and entirely replace the earlier pleading; the latter deal with events

subsequent to the pleading to be altered and represen: additions to or

continuations of the earlier pleadings.” (footnotes omitted)). He did not have

leave of Court to file a supplemental complaint even though the Court

recognizes that under certain circumstances a supplemental complaint can

remedy defects in a prior complaint. See Fed. R. Civ. P. 18d) (“The court

may permit supplementation even though the original pleacjizg is defective

in stating a claim or defense.”).

As another district court has explained:

‘Trihe filing of an action fixes the controversy.” Rocigers v.

Hawley, 14 F. App'x 403, 408 (6th Cir. 2001). [Thus], ifa plaintiff

“desire[s] to litigate events occurring after [they] filed [their] . . .

claim, [the plaintiff] need[s] to file a supplemental plead ngj under”

(footnote corttinued on next page)

-?7-

allegations in Leppien’s amended complaint, “if established at trial, would

support [his] recovery or . . . would constitute a complete defense.” Poulis,

747 F.2d at 870. As explained below, Leppien has not pleaded a potentially

meritorious claim against any Defendant.’

Federal Rule of Civil Procedure 15(d). [/d.]; see a/so[], E/-Khali v.

Usen, No. 21-1140, 2021 WL 4621828, at *4 (6th Cir. Oct. 7,

2021) (“In the absence of a supplemental pleading under Fed. R.

Civ. P 15(d), El-Khalil cannot predicate his allegations oni events

occurring after the [first amended complaint].”).

Gresham v. Honda Dev. & Mfg. of Am., LLC, No. 23-cv-4015, 2026 WL

682433, at *5 n.10 (S.D. Ohio Mar. 9, 2026); see also YCF Trading Inc. v.

Skullcandy, Inc., 781 F. Supp. 3d 56, 98 (E.D.N.Y. 2025) (“if the proposed

amended complaint includes allegations about events that occurred after the

original complaint was filed, Rule 15(d)[,] rather than Rule 75(a), applies.”

(citations omitted)). Under Rule 15(d), “[o]Jn motion and reasonable notice,”

the Court may “permit a party to serve a supplemental pleading setting out

any transaction, occurrence, or event that happened after ifie date of the

pleading to be supplemented.” Fed. R. Civ. P. 15(d). Moreover, this Rule

provides that “[t]he court may permit supplementation eyein though the

original pleading is defective in stating a claim... .,” id., andthe Third Circuit

has determined that “a supplemental complaint under Rule 15(d) that relates

back to the original complaint may cure the filing defect in the original

complaint.” Garrett v. Wexford Health, 938 F.3d 69, 83-84 (3d Cir. 2019)

(citing 7 Mobile Ne., LLC v. City of Wilmington, 913 F.3d 311, 328 (3d Cir.

,2019)).

□ The Court would have applied this analysis when screening Leppien’s

amended complaint pursuant to 28 U.S.C. §1915A(a)-(b) and would have

dismissed the amended complaint with prejudice for failure to state a claim

under Section 1915A(b)(1).

28 -

1. Claims Against Ossman

As explained above, the Court previously dismissed Leppien’s Section

1983 claims against his fellow inmate, Ossman, because he was not a proper

Defendant for purposes of this statute. See (Doc. 7 4 & n.1). Despite this

dismissal, Leppien once again names Ossman as a Defendant in the caption

and body of his complaint. See (Doc. 33 at 1, 3). However, none of the limited

factual allegations in the amended complaint relate to Ossman, and Leppien

does not mention Ossman by name in his statement of facts. Siee (id. at 4).

Because Leppien does not allege any facts that would allow this Court to find

that Ossman, another inmate, is a state actor subject to suit urider Section

1983, he fails to plead a plausible claim for relief against Ossmain.

2. Eighth Amendment Failure-to-Protect Claims

The Court construes Leppien’s amended complaint as assserting that

Defendants failed to protect him when they told other inmates of the “nature

of [his] charges,” which placed his “life in danger.” (Doc. 33 a 4.) In resolving

Defendants’ motion to dismiss Leppien’s original complaint, the Court

explained that Leppien had alleged a plausible failure-to-pirotect claim

against Wright where he “generally allege[d] that Wright told ot:her inmates

about his ‘charges,’ showed an inmate Leppien’s ‘case’ on thie computer,

and told inmates that he is a ‘child molester.” (Doc. 31 at £35 (citations

-29 -

omitted)). However, unlike his allegations in his original complaint, Leppien

did not identify the nature of his charges or state facts indicating how

Defendants allegedly sharing his charges with other inmates placed him in

danger in his amended complaint, and he cannot use any allegations

asserted in his original complaint to supplement or add to his allegations in

his amended complaint. See (Doc. 31 J3 (“The amended complaint shall be

a complete document that does not rely on the original complaint or other

papers filed in this case to state a claim.”)). In addition, although Leppien

claims that he was subjected to verbal harassment, see (Doc. 33 at 4), such

a claim cannot form the basis for a failure-to-protect claim. See Cessna v.

Lewis, No. 14-cv-361, 2015 WL 1299733, at *10 (M.D. Pa. Mar. 23, 2015)

(‘To the extent that the claim asserts a denial of personal safety or a failure

to protect, arising out of the alleged harassment, acts of verbal harassment

and taunting alone cannot qualify as constitutional violations.”). Moreover,

even though Leppien alleges that he was placed in danger, he does not

allege any facts describing the specific danger he faced. Overall, Leppien’s

allegations fail to satisfy the objective element of a failure-to-protect claim.

Leppien’s allegations also do not satisfy the subjective element of a

failure-to-protect claim because they do not show that Defendants had a

sufficiently culpable state of mind. Leppien alleges that Defendants

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“inadvertfent]ly put [his] life in danger by [t]elling inmates of [t]he nature of

[his] charges.” (Doc. 33 at 4 (emphasis added)). This allegation implicates

negligence, not deliberate indifference, and therefore does not rise to the

level of a constitutional violation. See Hope v. Warden York County Prison,

972 F.3d 310, 330 (3d Cir. 2020) (“Deliberate indifference requires

significantly more than negligence.”). Accordingly, Leppien fails to allege a

plausible Eighth Amendment failure-to-protect claim against Defendants.

3. First Amendment Retaliation Claims

Leppien asserts that he raises First Amendment retaliation claims in

his amended complaint. See (Doc. 33 at 4). However, he does not allege

facts that would establish any element of such a claim. For instance, Leppien

does not allege that he engaged in constitutionally protected conduct. In this

regard, although Leppien twice refers to the “[d]enial of grievance remedies”

in different sections of the form complaint from where he set forth the facts

in support of his claims (Doc. 33 at 5), it is not reasonably inierable by these

limited references that he filed any grievance.

Even if it was inferable from the amended complaint that Leppien

engaged in protected conduct by filing a grievance, see Watso:7, 834 F.3d at

422 (explaining that a prisoner's filing of lawsuits and prison grievances

constitutes activity protected by the First Amendment), he joes not allege

-31-

any adverse action he suffered due to him engaging in protected activity.

Furthermore, although Leppien asserts a retaliation claim, at no point does

he allege in his statement of facts that any Defendant retaliated against him

or specify facts that would establish that his constitutionally protected

conduct was a substantial or motivating factor for retaliating against him.®

8 The Court recognizes that the Third Circuit has held that a plaintiff's

“use of the word ‘retaliation’ in [their] complaint sufficiently implies a causal

link between [their] complaints and the misconduct charges filed against

[them].” Mitchell, 318 F.3d at 530; see also Kelly v. York Cnty. Prison, 340

F. App’x 59, 61 (3d Cir. 2009) (unpublished) (“[T]he word retaliation in his

complaint sufficiently implies a causal link between his complaints and denial

of employment.” (internal quotation marks omitted) (citing Mitchell, 318 F.3d

at 530); Molina v. Rivello, No. 23-cv-1111, 2023 WL 8359951, at *5 (M.D.

Pa. Dec. 1, 2023) (“Molina satisfies the third requirement for a retaliation

claim because for the purpose of a motion to dismiss, ‘the word “retaliation”

in [the] complaint sufficiently implies a causal link between [plaintiff's]

complaints and the misconduct charges filed against him.” (alterations in

original) (quoting Mitchell, 318 F.3d at 530)). However, it is unclear whether

this holding remains viable following the Supreme Court’s decisions in

Twombly and Iqbal because such an allegation likely constitutes a legal

conclusion which is “not entitled to the assumption of truth.” Twombly, 556

U.S. at 679: see also Surina v. S. River Bd. of Educ., No. 20-2804, 2022 WL

264464, at *4 (3d Cir. Jan. 27, 2022) (“[A] plaintiff must allege any facts

plausibly indicating a causal link between the reporting and allegedly

constitutionally protected conduct.” (citing Lauren W. ex rel. Jean W. v.

DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007))); Rodriguez-Vives v. P.R.

Firefighters Corps of P.R., 743 F.3d 278, 286 (1st Cir. 2014) (“A conclusory

allegation . . . is one which simply asserts a legal conclusion, such as ‘I was

retaliated against,’ not a specific factual allegation . . . .”); Ashley-Boyd v.

Monroe Cnty. Corr. Fac., No. 23-cv-01864, 2024 WL 4156849, at *3 (M.D.

Pa. Sept. 11, 2024) (determining that plaintiff's “single[-]sentence’” allegation

that they were retaliated against for submitting complaints about their

conditions of confinement” was “insufficient to plausibly plead a retaliation

(footnote continued on next page)

32 -

Therefore, the Court concludes that Leppien also fails to state a plausible

First Amendment retaliation claim.

G. Balancing the Factors

When balancing the Poulis factors, there is no “magic formula” or

mathematical calculation used to direct a particular result. See Briscoe, 538

F.3d at 263. Also, as stated above, “no single Poulis factor is dispositive,”

and that “not all of the Poulis factors need be satisfied in order to dismiss a

complaint.” Ware, 322 F.3d at 222; Mindek, 964 F.2d at 1373. In balancing

the factors here, the Court is mindful that dismissal “is only appropriate in

limited circumstances and doubts should be resolved in favor of reaching a

decision on the merits.” Liggon-Reading v. Est. of Sugarman, 659 F.3d 258,

260 n.1 (3d Cir. 2011) (citations omitted).

In this case, the first, third, fourth, fifth, and sixth factors weigh in favor

of dismissal. The only factor weighing against dismissal is the second factor.

Upon balancing these factors, the Court finds that dismissing Leppien’s

amended complaint with prejudice is warranted and appropriate in this case.

claim, as it is merely a legal conclusion”). Regardless, Leppien does not use

the word “retaliate” when stating the facts in support of his claims. See (Doc.

33 at 4).

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IV. CONCLUSION

For the reasons stated above, the Court will grant Defendants’ Rule

41(b) motion to dismiss for lack of prosecution, dismiss with prejudice

Leppien’s amended complaint, deny Defendants’ Rule 12(b)(6) motion to

dismiss as moot, and direct the Clerk of Court to close this case. An

appropriate Order follows.

Move MANNION

United States District Judge

DATE: spas

23-1773-02

~ 34.