PITTSBURGH – After a federal magistrate judge recommended that an amended lawsuit from a Vandergrift Borough Council member, which alleged a conspiracy-based campaign of defamation and slander undertaken by a number of borough officials was intended to drive her out of office, be dismissed for failure to prosecute, the presiding judge acted accordingly and threw out the case.
Karen McClarnon first filed suit in the U.S. District Court for the Western District of Pennsylvania on May 28, 2020 versus the Borough of Vandergrift, Kathy Chvala, Christine Wilson, John Uskuraitis, Thomas Holmes, Lenny Collini, Barbara Turiak, Chief Joseph M. Caporali and Officer Nathan Rigatti. All parties are based in Vandergrift.
(Turiak and Wilson and were later dismissed as defendants on Dec. 11, 2020 and April 7, 2021, respectively.)
McClarnon said she had criticized a number of issues in the Borough’s operation, such as its alleged lack of written or standardized operating procedures, activity taking place at the Casino Theatre, fiscal management of the borough-owned pool, alleged intimidation at the hands of local police targeting her family, alleged nepotism and the Borough Council allegedly conducting secret meetings in violation of the Pennsylvania Sunshine Law for government transparency.
McClarnon added local officials have engaged in at least two dozen forms of retaliation against her, including but not limited to, allegedly declining to provide a police report from when her husband was pulled over in front of the plaintiff’s home; the Borough Council allegedly refusing to give her prior notice of meetings; Collins allegedly spreading false rumors she had been fired from her prior role as principal at Cardinal Maida Academy for theft and Caporali allegedly telling an officer that the plaintiff had phoned into a Borough Council meeting while drunk, when she was only out of town and in no way intoxicated.
“All of these actions have been performed in an attempt to keep plaintiff McClarnon from participating in Vandergrift Borough Council business and to prevent her from carrying out her constitutionally-protected and mandated duties in retaliation for her criticisms of the borough and of council,” the suit stated.
“All of the foregoing actions have been motivated by defendants’ desire to silence plaintiff McClarnon who has been an outspoken, vocal minority critic of defendants’ policies and actions as majority members of Vandergrift Borough Council.”
On June 25, 2021, defendants Caporali and Rigatti filed a motion to dismiss themselves from McClarnon’s lawsuit in three separate counts in which they were named: First Amendment violations (Count I), Substantive Due Process (Count III) and Failure to Train/Supervise (Count V).
“None of the factual averments as to Officer Rigatti arise to the level of a Constitutional violation. Chief Caporali is not alleged to have engaged in any conduct beyond advising plaintiff that no reports existed as to two alleged incidents,” the motion stated, in part.
“The alleged conduct of each officer, assumed for purposes of the within motion as true, will be examined. Regarding Chief Caporali, when plaintiff asked for copies of police reports on two separate occasions, Chief Caporali responded by advising that no reports existed. These alleged actions are devoid of the type of conduct that could be construed as violating plaintiff’s rights and it follows then that no unconstitutional conduct has been identified to support any cause of action.”
After the case was temporarily stayed for 45 days, in order for the plaintiff to obtain new counsel, U.S. Magistrate Judge Maureen P. Kelly issued a report and recommendation on Sept. 20, for the second amended version of the complaint to be dismissed for failure to prosecute.
“Plaintiff failed to appear at the scheduled telephone status conference held July 6, 2022, and the docket reflects that substitute counsel, if any, had not entered an appearance on plaintiff’s behalf. The Court ordered plaintiff’s remaining counsel to provide the Court with all known addresses for plaintiff, and the case remained stayed for an additional 60 days. The Court entered an order to show cause on July 7, directing plaintiff to show good cause by Sept. 7, 2022, why this action should not be dismissed for failure to prosecute. Court docket entries reflect that the order to show cause was served on plaintiff by mail and email at all known addresses. To date, plaintiff has failed to respond or give any other indication that she wishes to proceed with this action,” Kelly stated.
Taking into account the Poulis factors to determine if the case should be dismissed (these being the extent of the party personal responsibility; prejudice caused by failure to meet scheduling orders and to respond to discovery; a history of dilatoriness; whether the conduct of the party was willful or in bad faith; the effectiveness of sanctions apart from dismissal and the meritoriousness of the claim or defense), Kelly found that the final factor weighed in favor of the plaintiff but that the rest of them pointed towards the defense.
“Since plaintiff is currently unrepresented and must proceed pro se if at all, it does not appear that monetary sanctions are appropriate. Plaintiff’s failure to comply with the Court’s orders and her failure to appear at a scheduled status conference have prevented this case from proceeding and indicate that plaintiff has no serious interest in pursuing this case. It therefore appears that dismissal is the most appropriate action for the Court to take. Accordingly, it is respectfully recommended that the second amended complaint filed in the above-captioned case be dismissed for failure to prosecute.”
UPDATE
U.S. District Court for the Western District of Pennsylvania Judge Robert J. Colville adopted Kelly’s recommendation and ordered the case closed on Oct. 11.
“Before the Court is the Sept. 20, 2022 report and recommendation of the Honorable Maureen P. Kelly recommending that plaintiff’s second amended complaint be dismissed for failure to prosecute. Objections to Judge Kelly’s report and recommendation were due by Oct.7, 2022. No objections were filed and the matter is now ripe for disposition,” Colville said.
“Upon review of the Sept. 20, 2022 report and recommendation of the Honorable Maureen P. Kelly, as well as a review of the entire record in this matter, it is hereby ordered as follows: 1) The report and recommendation is hereby adopted as the opinion of the Court; 2) This case is dismissed with prejudice for failure to prosecute; 3) The Clerk of Court is hereby directed to mark this case as closed.”
For counts of violation of due process, defamation and violation of liberty interest and violation of free speech, the plaintiff is seeking an injunction restraining the defendant from continuing violation of any of the alleged acts taken against her, damages in the form of costs, attorney’s fees and such other and further relief as is deemed appropriate.
The plaintiff represented herself in this matter.
The defendants were represented by Thomas P. McGinnis, Karin M. Romano and Samuel G. Dunlop of Thomas Thomas & Hafer and Paul D. Krepps of Marshall Dennehey Warner Coleman & Goggin, all also in Pittsburgh, plus Christopher J. Sinnott of Marnen Mioduszewski Bordonaro Wagner & Sinnott, in Erie.
U.S. District Court for the Western District of Pennsylvania case 2:20-cv-00779
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com