Opinion
Civil Action 20-835
10-13-2022
TAYLOR FOSTER, Petitioner, v. PENNSYLVANIA ATTORNEY GENERAL; WESTMORELAND COUNTY COURTS; WARDEN BRYAN KLINE; and WESTMORELAND COUNTY DA'S OFFICE, Respondents.
Hon. W. Scott Hardy United States District Judge
REPORT AND RECOMMENDATION
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that this case be dismissed without prejudice for failure to prosecute, and that a certificate of appealability be denied.
II. REPORT
Petitioner Taylor Foster (“Petitioner”) submitted an initial Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241 as a pretrial detainee on June 5, 2020. ECF No. 1. Petitioner subsequently filed two additional documents purporting to seek habeas relief, and was ordered to file an amended, comprehensive petition on August 17, 2020. ECF No. 10. Petitioner failed to do so, and on May 11, 2021, the undersigned ordered the Petition docketed at ECF No. 9 to be served on Respondents. ECF No. 16.
After receiving an extension of time, Respondents filed an Answer to the operative Petition on September 1, 2021. ECF No. 24. The Answer did not include a certificate of service. 1
On September 2, 2021, this Court issued an order setting the deadline for Petitioner's traverse. ECF No. 25. That order was returned to the Court on October 7, 2021, as undeliverable. ECF No. 26.
On October 7, 2021, this Court issued an order directing Respondents to:
provide a certificate of service indicating the address at which they served their . . . Answer, and shall inform this Court whether the . . Answer has been returned as undelivered. Respondents further shall advise the Court of any additional changes to Petitioner's address of which they are aware, and whether Petitioner has been released from custody.Id. Respondents failed to timely respond to that Order. In the meantime, the copy of the Order of October 7, 2021 that was mailed to Petitioner's address-of-record was returned to the Court as undeliverable.
This Court issued an Order to Show Cause against Respondents on October 18, 2021. ECF No. 27. Shortly thereafter on the same day, Respondents complied with the Order of October 7, 2021. ECF No. 28. Notably, they admitted that their initial attempt to serve the Answer was unsuccessful, and that Petitioner was served at a second address which was heretofore unknown to this Court. Id. at 1.
On October 25, 2021, an Order to Show Cause why this case should not be dismissed due to Petitioner's failure to prosecute and failure to update his address of record. ECF No. 31 at 2. Copies were mailed to Petitioner's address of record, as well as the additional address that was provided by Respondents. Id. at 3. The copy that was mailed to the Westmoreland County Prison address was returned as undeliverable. ECF No. 33. The copy that was mailed to Petitioner's other address was not.
As of this dated, Petitioner has still not responded to the Order to Show Cause, nor has he updated his address of record. 2
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.” Id.
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 dismissal of 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). 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). Consideration of the factors listed above is as follows.
(1) The extent of the party's personal responsibility
Petitioner is proceeding in this matter pro se, and is alone responsible for prosecuting this case and complying with orders of this Court. 3
(2) Prejudice to the adversary
This matter is stymied due to Petitioner's refusal to prosecute this case. In this Court's view, Petitioner's refusal to respond to court orders, or to provide his current address to the Court, unnecessarily drags out this litigation, and unfairly prejudices Respondents.
(3) A history of dilatoriness
Petitioner has refused to respond to court orders, or to provide an address.at which this Court can serve orders. This is sufficient evidence, in this Court's view, to indicate that Petitioner does not intend to proceed with this case.
(4) Whether the party's conduct was willful or in bad faith
There is no indication on the record that Petitioner's conduct is the result of any “excusable neglect,” Poulis, supra. The conclusion that Petitioner's failure is willful is inescapable.
(5) Alternative sanctions
Petitioner currently is proceeding pro se, and there is no indication on the record that the imposition of costs or fees likely would be an effective sanction.
(6) Meritoriousness of the case
A review of the state court docket indicates that Petitioner has been released on nominal bond, and that there his criminal proceedings still are pending. See Docket, Com. v. Foster, No. CP-65-CR-4388-2019 (available at https://ujsportal.pacourts.us/Report/CpDocketSheet? docketNumber=CP-65-CR-0004388-2019&dnh=4zEJNk5o%2FU%2FhxP0%2Fr0Qt%2Bw%3D %3D) last visited Oct. 13, 2022). There is no indication on the state court docket that Petitioner has exhausted his claims in the courts of Pennsylvania. Out of an abundance of caution, and lacking a Traverse from Petitioner, the undersigned views this factor as neutral. 4
Because five of the six Poulis factors weigh in favor of dismissal, dismissal is appropriate under Rule 41(b) for failure to prosecute. 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
Based on the reasons set forth above, it is respectfully recommended that this case be dismissed without prejudice for failure to prosecute, and that a certificate of appealability 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 days thereafter in accordance with Local Civil Rule 72.D.2. 5