Opinion
Civil Action 20-598
05-31-2022
THOMAS R. GALLOWAY, JR., Petitioner, v. JOHN R. WALTON, Warden; WESTMORELAND DA OFFICE; and WESTMORELAND COUNTY, Respondents.
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that the Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 (the “Petition”) filed in the above-captioned case, ECF No. 3, be dismissed for failure to prosecute. ECF No. 41. To the extent that one is required, a certificate of appealability should be denied.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner Thomas R. Galloway, Jr., (“Petitioner”) submitted a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 (the “Petitioner”) for filing on April 22, 2020, challenging his arrest and ongoing pre-trial detention in the Westmoreland County Prison (“WCP”). ECF Nos. 1 and 3. Petitioner also submitted a Motion for Leave to Proceed in forma pauperis (“IFP”) that same day. ECF No. 1. The IFP Motion was granted on April 28,2020, ECF No. 2, and the Petition was formally filed on April 30, 2020. ECF No. 3.
On September 22, 2021, Petitioner submitted correspondence in an ongoing prisoner civil rights case stating that he had been released from WCP on September 14, 2021. Galloway v. Walton, No. 20-cv-611 (W.D. Pa. Sep. 22, 2021) ECF No. 121. On March 10, 2022, 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 April 11, 2022. ECF No. 41. The Order to Show Cause was returned as undeliverable. Based on Petitioner's change of address filed in Civil Action No. 20-611, the Order to Show Cause was mailed to Petitioner's new address on April 18, 2022. The deadline for Petitioner to respond to the Order to Show Cause was extended to May 18,2022. ECF No. 42. Petitioner also was reminded of his obligation to notify this Court of any change of address in each of his pending cases, and that failure to inform this Court of his current address may result in dismissal for failure to prosecute. ECF Nos. 40 and 42. See also ECF No. 4 at 3 (ordering Petitioner to notify this Court of any change of address). As of this date, Petitioner has not responded to the Order to Show Cause.
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 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, this Court cannot discern prejudice to any party. Therefore, this factor weighs neither for nor against dismissal.
The third Poulis factor asks whether Petitioner has a history of dilatoriness. Petitioner has failed to respond to two consecutive Orders to Show Cause. See ECF Nos. 41,42. Therefore, this factor weighs in favor of 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 ignored two consecutive Orders to Show Cause. Such failure to respond to Court orders appears willful, barring any information which would suggest that Petitioner is not receiving the orders. While Petitioner did file a Notice of Change of Address with the Court in Civil Action No. 20-611 on April 14, 2022, the latest Order to Show Cause was sent after that address change and was ignored by Petitioner. Moreover, Petitioner timely responded to earlier orders in this case. See ECF Nos. 16, 19. His failure to respond at this time indicates an affirmative choice and, therefore, this factor weighs in favor of dismissal.
The fifth Poulis factor asks whether there are any available and effective alternatives to dismissal. Monetary sanctions are ineffective where the Petitioner is indigent, as is the case in the present matter. See, e.g., Brennan v. Clouse, No. 11-146, 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 1184, 191 (3d Cir. 2002)). 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 an order by the Court to explain why it is not. Therefore, the sixth factor weighs in favor of dismissal.
On balance, this Court concludes that five 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.
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.
Respectfully submitted, All counsel of record by Notice of Electronic Filing