Opinion
Civil Action 19-1162
12-20-2021
MARQUIS FARROW, Petitioner, v. LEE ESTOCK; ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA; and DISTRICT ATTORNEY OF ALLEGHENY COUNTY, Respondents.
The Honorable William S. Stickman, United States District Judge.
REPORT AND RECOMMENDATION RE: ECF NO. 4
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that the instant Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State Custody (the “Petition”), ECF No. 4, be dismissed for failure to prosecute, given that Marquis Farrow (“Petitioner”) has now been released on parole without advising the Court of his current address.
II. REPORT
A. Procedural History
Marquis Farrow (“Petitioner”) filed this Petition seeking to challenge his state court conviction for possession of a controlled substance with intent to deliver, and the resulting sentence of 6 to 1214 years of incarceration.
On December 4, 2019, Respondents filed a Motion to Dismiss arguing that the Petition was time-barred. ECF No. 9. OnDecember5, 2019, this Court ordered Petitioner to file a response to the Motion to Dismiss by January 6, 2020. ECF No. 10. He did not do so.
On January 17, 2020, this Court received Petitioner's Motion for Extension of Time to file response to the Motion to Dismiss (“Motion for Extension”), which ostensibly was signed on December 30, 2019. ECF No. 11. In the Motion for Extension, Petitioner sought a 60-day extension.
On January 21, 2020, this Court entered an order granting in part and denying in part the Motion for Extension, granting Petitioner until February 28, 2020 to file his response but denying his request for a full 60-day extension. ECF No. 12.
Petitioner failed to file his response to the Motion to Dismiss by February 28, 2020, as he had been directed. Accordingly, this Court entered an Order to Show Cause on March 13, 2020, requiring Petitioner to show cause why the case should not be dismissed due to his repeated failures to file a response to the Motion to Dismiss. ECF No. 15. The Order specifically indicated that “Petitioner must file his response to the Motion to Dismiss on or before March 27, 2020. Failure to do so will result in the dismissal of this action.” Id. The Order to Show Cause was sent to Petitioner at his address of record at SCI-Pine Grove.
Petitioner failed to respond to the Order to Show Cause and, on April 8, 2020, this Court issued a Report and Recommendation recommending that the Petition be dismissed for failure to prosecute. ECF No. 16. The deadline to file objections thereto was April 27, 2020. OnMay 1, 2020, having no objections, Judge Stickman adopted the Report and Recommendation and dismissed this case. ECF No. 17.
On May 4, 2020, Petitioner moved for an extension of time to respond to the Report and Recommendation, which Judge Stickman granted. ECF Nos. 18 and 19. After a second extension of time, ECF Nos. 20 and 21, Petitioner filed Objections to the Report and Recommendation. ECF No. 22. Concluding that the Objections demonstrated that Petitioner appeared to be attempting to prosecute this habeas case, Judge Stickman treated them as a motion for reconsideration, granted the same, and declined to adopt the Report and Recommendation. ECF No. 23 at 3.
Petitioner was ordered to respond to the Motion to Dismiss. ECF No. 24. Petitioner moved for and was granted several extensions of time to do so. ECF Nos. 25 - 28. Finally, a deadline of March 29, 2021 was set for Petitioner to respond to the Motion to Dismiss. ECF No. 28. However, that date came and went without any further response from Petitioner.
In preparation of its disposition of the pending Motion to Dismiss, this Court reviewed the Pennsylvania Department of Corrections Inmate Locator Website, which shows that during the pendency of these proceedings - and prior to the final deadline to respond to the Motion to Dismiss - Petitioner was released on parole on March 11, 2021. See http://inmatelocator.cor.pa.gOv/#/ (last visited Dec. 17, 2021). This Court takes judicial notice of that public record.
B. Discussion
A district court has the inherent power to dismiss a case under Rule 41(b) of the Federal Rules of Civil Procedure for a litigant's failure to prosecute or to comply with an order of court. Guyer v. Beard, 907 F.2d 1424, 1429 (3d Cir. 1990). “Under our jurisprudence, the sanction of dismissal is reserved for those cases where the plaintiff has caused delay or engaged in contumacious conduct. Even then, it is also necessary for the district court to consider whether the ends of justice would be better served by a lesser sanction.” IT
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 six factors to be weighed when considering whether to dismiss a case as a sanction for failure to prosecute or to obey pretrial orders. They are: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure; (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. These factors must be balanced in determining whether dismissal is an appropriate sanction, although not all need to weigh in favor of dismissal before dismissal is warranted. Hicks v, Feeney, 850 F.2d 152 (3d Cir. 1988).
“Poulis did not provide a magic formula whereby the decision to dismiss or not to dismiss a plaintiffs complaint becomes a mechanical calculation easily reviewed by” the Court of Appeals. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992). Application of the Poulis factors is appropriate in the context of habeas cases as well as to civil rights actions. Harlacher v, Pennsylvania, 3:CV-10-0267, 2010 WL 1462494, at *3 (M.D. Pa. Mar. 12, 2010), report and recommendation adopted, CIV.A 3:CV-10-0267, 2010 WL 1445552 (M.D. Pa. Apr. 9, 2010) (applying Poulis to a habeas case).
In the instant case, Petitioner has exhibited a history of dilatory conduct throughout this case.
Prior to the issuance of the Report and Recommendation dated April 8, 2020, ECF No. 16, Petitioner repeatedly failed to file a response to the Motion to Dismiss and/or to otherwise respond to the Court's orders. While it appears that Petitioner made an attempt to respond in his Objections dated September 3, 2020, his behavior since the Order dated September 29, 2020, ECF No. 24, has exhibited more of the same non-responsive behavior.
More troublingly, the public record indicates that Petitioner was released on parole without informing this Court. Further, He has failed to update his address in the months since his release, despite explicitly having been ordered to do so in the Order directing service dated November 12, 2019. ECF No. 6 at 4. While the instant Report and Recommendation will be mailed to Petitioner's address of record on the docket, there is little hope that it will reach him there, or that this Court or Respondents will be able to serve any additional filings on him.
The low likelihood that Petitioner will receive a copy of this Report and Recommendation - which, as stated above, is a consequence of his own conduct - does not preclude sua sponte dismissal under these circumstances. See Adams v. Trustees of New Jersey Brewery Employees' Pension Trust Fund, 29 F.3d 863, 871 (3d Cir. 1994) (“the absence of notice as to the possibility of dismissal or the failure to hold an adversary hearing” does not “necessarily render such a dismissal void.”) (quoting Link v. Wabash R.R., 370 U.S. 626, 632 (1962)). To the contrary, Petitioner's unwillingness to provide a mechanism for this Court to serve orders on him or otherwise communicate with him is indicative of his unwillingness to proceed with this Petition.
Considering the history of this case, the first Poulis factor - the party's personal responsibility - weighs heavily in this Court's analysis. Petitioner alone is responsible for his conduct with respect to the Motion to Dismiss, as well as for his failure to inform this Court of his parole, and his failure to update his address. Indeed, these failures would seemingly confirm that, having now been released from confinement, Petitioner has lost the incentive to prosecute this Petition.
In addition, given Petitioner's failure to update this Court on his whereabouts, and lack of explanation or excuse for this failure, it would appear that his actions are willful. Thus, Poulis factor four weighs in favor of dismissal. Furthermore, given the persuasive showing in the Motion to Dismiss that the Petition is untimely filed (perhaps, the cause of Petitioner's loss of interest in pursuing this case), Poulis factor six likewise weighs in favor of dismissal. Moreover, this Court finds that any alternative sanction, such as the imposition of costs or fees, would seemingly be ineffective in light of Petitioner's pro se status.
Taking all of the Poulis factors into consideration, and after carefully weighing them, this Court cannot escape the conclusion that they ultimately weigh in favor of dismissal. Furthermore, this Court finds the Poulis factors sufficiently met herein to justify dismissal of this case with prejudice. Consequently, this Court recommends that Petitioner's case be dismissed with prejudice for Petitioner's failure to prosecute.
III. CONCLUSION
For the reasons set out in this Report and Recommendation, it is respectfully recommended that Petitioner's case be dismissed with prejudice.
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.