Opinion
Civil Action 20-92J
06-22-2022
TITO ARGUETA FOLGAR, Petitioner, v. MOSHANNON VALLEY CORRECTIONAL FACILITY and U.S. ATTORNEY FOR THE WESTERN DISTRICT OF PENNSYLVANIA, Respondents.
Robert J. Colville District Judge.
REPORT AND RECOMMENDATION
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
It is respectfully recommended that this case be dismissed for failure to prosecute. To the extent that one is required, a certificate of appealability should be denied.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
Tito Argueta Folgar (“Petitioner”) was, at the time of the filing of this action, a federal prisoner incarcerated at the Moshannon Valley Correctional Facility (“MVCC”) in Phillipsburg, Pennsylvania. ECF No. 1 at 3.
On April 30, 2020, Petitioner lodged in the United States District Court for the Middle District of Pennsylvania a self-styled “Motion under 28 USC 2241 seeking restoration of good time credits forfeit [sic] after a prison disciplinary hearing” (the “Petition”), ECF No. 1, in which he sought the restoration of 41 days of lost good-time credits. Id. at 3. On May 13, 2020, this case was transferred to this judicial district. ECF Nos. 6 and 7. On June 2, 2020, the United States Marshal was ordered to serve the Petition. ECF No. 9. In the same order, Petitioner was directed to keep this Court appraised of any changes to his address on risk of dismissal. Id. at 2. Respondents responded to the Petition on August 27, 2020. ECF No. 12. Petitioner filed a traverse on September 9, 2020. ECF No. 13.
A review of the public records of the Bureau of Prisons reveals that Petitioner was released from federal custody on January 8, 2021. Despite his obligations under the Service Order issued on June 2, 2020, ECF No. 9, Petitioner never informed this Court of his release.
This Court conducted a review of the public records of the Bureau of Prisons. The review revealed Petitioner was released from federal custody on January 8, 2021. See https://www.bop.gov/mobile/findinmate/index.jsp (last visited June 22, 2022).
On March 10, 2022, this Court issued an Order to Show Cause requiring Petitioner to show cause why this case should not be dismissed as moot, seeing as Petitioner's confinement ended during the pendency of this Petition. ECF No. 16. Petitioner's response to the Order to Show Cause was due no later than April 11, 2022. Id. As of this date, Petitioner has not responded to the Order to Show Cause, nor has he given any indication of his intention to proceed with this litigation.
B. DISCUSSION
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 to 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. All the Poulis factors do not need to be satisfied in order to dismiss a complaint. See C.T. Bedwell & Sons, Inc. v. Int'l Fid. Ins. Co., 843 F.2d 683, 696 (3d Cir. 1988). Instead, 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).
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). 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). The decision must be made in the context of the district court's extended contact with the litigant. See C.T. Bedwell, 843 F.2d at 696.
The first Poulis factor requires the Court to consider the extent to which the dilatory party is personally responsible for the sanctionable conduct. See Adams v. Trs. of the N.J. Brewery Emps.' Pension Tr. Fund, 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 is solely responsible for his lack of communication with the Court because he is proceeding pro se. See, e.g., Colon v. Karnes, No. 11-1704, 2012 WL 383666, at *3 (M.D. Pa. Feb. 6, 2012). As such, Petitioner is personally responsible for his failure to respond to this Court's issuance of an Order to Show Cause. This factor weighs heavily in favor of dismissal.
The second Poulis factor assesses whether the adverse party has suffered prejudice because of the dilatory party's behavior. Relevant concerns include “the irretrievable loss of evidence, the inevitable dimming of witnesses' memories[,] the excessive and possibly irremediable burdens or costs imposed on the opposing party,” Adams, 29 F.3d at 874, and “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). Given that Petitioner's claim appears to be moot, this factor appears to be neutral.
The third Poulis factor considers the litigant's history of dilatory conduct. Petitioner failed to respond to this Court's Order to Show Cause. ECF No. 16. This failure would seemingly confirm that, having now been released from confinement, Petitioner has lost the incentive to prosecute this Petition. This conduct is sufficient to establish Petitioner's history of dilatoriness. See Poulis, 747 F.2d at 868.
The fourth Poulis factor considers whether the dilatory party's conduct was willful, defined as that which “involves intentional or self-serving behavior.” Adams, 29 F.3d at 874. In this case, Petitioner has failed to comply with the Court's Order to Show Cause. ECF No. 16. Given Petitioner's failure to update this Court on his whereabouts, and lack of explanation or excuse for this failure, his actions appear willful and demonstrate his decision to forego litigation of this matter. Thus, Poulis factor four weighs in favor of dismissal.
The fifth Poulis factor addresses the effectiveness of sanctions other than dismissal. Poulis, 747 F.2d at 869. It is well-established that monetary sanctions are ineffective where the Petitioner is indigent. See, e.g., Brennan v. Clouse, No. 11-0146, 2012 WL 876228, at *3 (W.D. Pa. Mar. 14, 2012) (“Alternative sanctions, such as monetary penalties, are inappropriate as sanctions with indigent pro se parties.”) (citing Emerson v. Thiel College, 296 F.3d 184, 191 (3d Cir. 2002)). Moreover, alternative sanctions are unlikely to be effective against a party who fails to follow Court orders, such as Petitioner. See e.g., Mack v. United States, No. 3:17-CV-1982, 2019 WL 1302626, at *2 (M.D. Pa. Mar. 21, 2019) (noting that the court was “incapable of imposing a lesser sanction” on a plaintiff who refused to participate in his own lawsuit). As such, this factor weighs in favor of dismissal.
Finally, the sixth Poulis factor considers the potential merit of Petitioner's claims. A claim is deemed meritorious “when the allegations of the pleadings, if established at trial, would support recovery by [petitioner].” Poulis, 747 F.2d at 869. The evidence of record indicates that this claim is moot because Petitioner was released from federal custody. ECF No. 16. “A case is moot when issues presented are no longer ‘live' or the parties lack a legally cognizable interest in the outcome.” Congregation Kol Ami v. Abington Twp., 309 F.3d 120, 131 (3d Cir. 2002). The Petitioner has failed to comply with an order by the Court to show otherwise. See ECF No. 16. Accordingly, this factor weighs in favor of dismissal.
After carefully weighing the Poulis factors, this Court concludes the majority of factors support dismissal. Considering the evidence of mootness, as well as Petitioner's failure to respond to the Order to Show Cause, it seems Petitioner has lost interest in pursuing the federal habeas action. Consequently, this Court recommends that Petitioner's case be dismissed. 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).
III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that this case be dismissed with prejudice due to Petitioner's failure to prosecute. To the extent that one is required, a certificate of appealability 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.