Opinion
Civil Action 22-1881
07-14-2023
JOSEPH LODUCA, Petitioner, v. JOSPEH BIDEN United States President, ATTORNEY GENERAL MERRICK GARLAND, U.S. DEPARTMENT of JUSTICE, DISTRICT ATTORNEY OF MERCER COUNTY, Respondents.
ARTHUR J. SCHWAB, 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 for failure to prosecute.
II. REPORT
Petitioner Joseph LoDuca (“Petitioner”) is a state prisoner. His address of record indicates that he is incarcerated at the State Correctional Institution at Mercer (“SCI-Mercer”) in Mercer, Pennsylvania. However, a search of the Pennsylvania Department Corrections' inmate locator website indicates that Petitioner currently is held at the State Correctional Institution at Coal Township (“SCI-Coal Township”) in Coal Township, Pennsylvania. https://inmatelocator.cor.pa.gov/#/ (last visited July 14, 2023). Copies of this Report and Recommendation will be mailed to Petitioner at both addresses.
Petitioner submitted an “Application to Proceed in Forma Pauperis” (“IFP Motion”) along with a self-styled “Motion for Habeas Corpus 28 U.S.C. 2254” (the “Petition”), which were received by this Court on December 29, 2022. ECF No. 1. Petitioner was ordered to correct various filing deficiencies and to file an amended habeas petition on the Court's approved form on or before February 9, 2023. ECF No. 2. Petitioner did not respond to that order, and, on April 21, 2023, Petitioner was ordered to show good cause on or before May 12, 2023, why this case should not be dismissed. ECF No. 3 at 2.
As of the date of this writing, Petitioner has not responded to that order, nor has he filed anything in this case since his initial submission on December 29, 2022.
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 to the instant case 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.
(2) Prejudice to the adversary
Respondents have not been served the Petition. There is no indication that any Respondent has been unfairly prejudiced by Petitioner's conduct.
(3) A history of dilatoriness
Petitioner has refused to comply with the Deficiency Order dated January 10, 2023, or the Order to Show Cause issued on April 21, 2023. ECF Nos. 2 and 3. This is sufficient evidence, in this Court's view, to indicate that Petitioner does not intend to proceed in this matter.
(4) Whether the party's conduct was willful or in bad faith
Petitioner has failed to comply with two orders, both of which were served on his address of record. Neither order was returned as undeliverable. To the extent that Petitioner was transferred to a different prison sometime during the pendency of this case, he never updated his address with the Court. The conclusion that Petitioner's conduct 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
The Petition does not advance a meritorious argument for federal habeas relief. See ECF No. 1-1. Petitioner failed to file an amended petition when ordered to do so. This factor weighs in favor of dismissal.
Five of the six Poulis factors weigh in favor of dismissal. Accordingly, 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 it debatable that Petitioner has failed to prosecute this case. See, e.g., Slack v. McDaniel, 529 U.S. 473 (2000) (explaining standard for grant of a certificate of appealability where court does not address petition on the merits but on some procedural basis).
III. CONCLUSION
Based on the reasons set forth above, it is respectfully recommended that this case be dismissed, and 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 (14) days thereafter in accordance with Local Civil Rule 72.D.2.