Opinion
Civil Action 20-cv-1978
06-22-2022
JOHN BRADY also known as JOHN WADE, Petitioner, v. SCOTT A. WOOLF Pennsylvania Board of Probation & Parole. Respondent.
David S. Cercone, District Judge.
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
For the following reasons, it is respectfully recommended that the Petition under 28 U.S.C § 2254 for Writ of Habeas Corpus by a Person in Federal Custody (the “Petition”) filed in the above-captioned case, ECF No. 1, be dismissed for failure to prosecute. ECF No. 3. To the extent that one is required, a certificate of appealability should be denied.
Petitioner's initial submission was filed on a form for a habeas Petition under 28 U.S.C. § 2241. However, this Court has recognized that Petitioner is not a pre-trial detainee and is challenging a confinement by state officials. Therefore, the Petition is “properly construed as having been brought pursuant to 28 U.S.C. § 2254.” ECF No. 3 at 1 n.1.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner John Brady (“Petitioner”), also known as “John Wade,” submitted a Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in Federal Custody for filing on December 17, 2020, challenging his alleged detention by the Pennsylvania Board of Probation and Parole. ECF No. 1. Searches of the inmate locator and parolee locator on the Pennsylvania Department of Corrections website, as well as public records searches for the Petitioner's United States Marshal Number, indicate that the Petitioner was not being held in Pennsylvania as of December 16, 2021. ECF No. 3 at 2. On December 16, 2021, this Court issued an Order directing Petitioner to show cause why this case should not be dismissed as moot. The response to this Order was due by January 18, 2022. Id. As of this date, Petitioner has not responded to the Order to Show Cause. A review of the Pennsylvania DOC inmate and parolee locator on June 22, 2022 continues to return no indication that Petitioner is in custody in Pennsylvania, or is under the supervision of the Pennsylvania Board of Probation and Parole. Available at http://inmatelocator.cor.pa.gov/#/ (last visited June 22, 2022). Instead, a search of the federal Bureau of Prison's website for Petitioner's United States Marshals Number - 10413-087 -indicates that Petitioner currently is held at FCI-Beckley in Beaver, West Virginia. See https://www.bop.gov/inmateloc/ (last visited June 22, 2022).
B. DISCUSSION
In Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir. 1984), the United States Court of Appeals for the Third Circuit set forth a six-factor balancing test to assist a court in determining whether a case should be dismissed for failure to prosecute. The six factors are: (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. The Poulis factors are not a “magic formula” which can determine whether a case should be dismissed for failure to prosecute. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d. Cir. 1984). Moreover, all six of the Poulis factors do not need to weigh in favor of dismissal for a court to dismiss a complaint. See C. T. Bedwell & Sons, Inc. v. Int'l Fidelity Ins. Co., 843 F.2d 683, 696 (3d Cir. 1988). Instead, the court must “properly consider and balance” each factor in light of the present facts. Hildebrand v. Allegheny County, 923 F.3d 128, 132 (3d Cir. 2019) (citing Poulis, 747 F.2d at 868). Application of the Poulis factors is appropriate in the context of habeas cases as well as to civil rights actions. Harlacher v. Pennsylvania, No. 10-0267, 2010 WL 1462494, at *3 (M.D. Pa. Mar. 12, 2010), report and recommendation adopted, 2010 WL 1445552 (M.D. Pa. Apr. 9, 2010) (applying Poulis to a habeas case).
The United States Court of Appeals for the Third Circuit has instructed that the Poulis factors should be evaluated, where possible, to “resolve doubt in favor of a decision on the merits.” Hildebrand, 923 F.3d at 138. While dismissal is considered a “last resort,” such an outcome is nevertheless “a sanction rightfully in the district courts' toolbox.” Id. at 132, 138.
The first Poulis factor requires the Court to consider the extent to which the Petitioner is personally responsible for the sanctionable conduct. See Adams v. Trustees of N.J. Brewery Employees' Pension Trust, 29 F.3d 863, 873 (3d. Cir. 1994) (“[I]n determining whether dismissal is appropriate, we look to whether the party bears personal responsibility for the action or inaction which led to the dismissal.”). Here, Petitioner has received an Order to Show Cause and failed to comply with the instructions therein or to provide just cause for his failure to do so by the assigned date. This factor weighs in favor of dismissal.
The second Poulis factor considers whether Petitioner's failure to comply with the Order to Show Cause has prejudiced the adverse party. Such prejudice can include “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.” Adams, 29 F.3d at 874. Prejudice can also be recognized as “the burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy.” Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003). As Petitioner's habeas claim appears to be moot, given that there is no record of the Petitioner currently being held in Pennsylvania, this Court cannot discern prejudice to any party. Therefore, the Court treats this factor as neutral.
The third Poulis factor considers whether Petitioner has a history of dilatoriness. The Order to Show Cause is the first correspondence from this Court that the Petitioner has received. His failure to respond to the Order is his first failure to timely respond in the present matter. Therefore, this factor does not weigh for dismissal.
The fourth Poulis factor considers whether the Petitioner's conduct was willful or in bad faith. According to the United States Court of Appeals for the Third Circuit, willful behavior is “intentional or self-serving.” Adams, 29 F.3d at 874. Petitioner has failed to timely comply with an Order. Such failure to follow a Court order appears willful, barring any information which would suggest that the Petitioner did not receive the Order. This factor weighs in favor of dismissal.
The fifth Poulis factor asks whether there are any available and effective alternatives to dismissal. Alternative sanctions are not effective against a party who refuses to communicate with the court. Mack v. United States, No. 17-cv-1982, 2019 WL 1302626, at *2 (M.D. Pa. Mar. 21, 2019) (noting that the court is “incapable of imposing a lesser sanction” on a party who refuses to participate in his own lawsuit). Therefore, this factor weighs in favor of dismissal.
The sixth and final Poulis factor requires that the Court consider the potential merit of Petitioner's claims. A claim will be deemed meritorious “when the allegations of the pleadings, if established at trial, would support recovery by plaintiff.” Poulis, 747 F.2d at 869-70. However, here, the evidence of record indicates that this case is moot, and Petitioner has failed to comply with the Court's order to explain why it is not. Therefore, the sixth factor weighs in favor of dismissal.
On balance, this Court concludes that four of the six Poulis factors weigh in favor of dismissal. As a result, this Court concludes that, on the present facts, dismissal is appropriate. A certificate of appealability should be denied, because jurists of reason would not find the foregoing debatable. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
C. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Petition be dismissed due to Petitioner's failure to prosecute. To the extent that a certificate of appealability is required, the same should be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.