Opinion
Civil Action 2:23-00507
01-31-2024
TERRANCE A. MCARTHUR, Petitioner, v. SUPERINTENDENT, Respondent.
PROPOSED FINDINGS AND RECOMMENDATION
Omar J. Aboulhosn United States Magistrate Judge
On July 28, 2023, Petitioner, acting pro se, filed his Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. (Document No. 1.) By “Notice to Petitioner of Failure to Remit Filing Fee” entered on the same day, the Clerk of the Court notified Petitioner that within ten (10) days the Petitioner must either pay the $5.00 filing fee or submit the appropriate Application to Proceed Without Prepayment of Fees and Costs. (Document No. 3.) By Order entered on August 2, 2023, the undersigned noted that Petitioner's Petition failed to meet the heightened pleading requirement. (Document No. 5.) Therefore, the undersigned ordered that Petitioner had until September 1, 2023 to file an Amended Section 2254 Petition specifically setting forth his grounds for relief and the facts supporting each ground for relief. (Id.) The Court further advised Petitioner as follows:
Failure of the Petitioner to amend his Section 2254 Petition by September 1, 2023, will result in a recommendation of dismissal of this matter without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and Rule 41.1 of the Local Rules of Civil Procedure for the Southern District of West Virginia.(Id.) Petitioner, however, made no further contact with the Court or otherwise responded to the Court's Order or the Clerk's Notice. After noting Petitioner's lack of activity in this case, the undersigned issued an Order on September 8, 2023, directing Petitioner to “show cause in writing on or before October 10, 2023, as to why this action should not be dismissed for failure to prosecute.” (Document No. 6.) The undersigned specifically notified Petitioner that failure to show cause in writing by October 10, 2023, would result in a recommendation of dismissal of this matter pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and Rule 41.1 of the Local Rules of Civil Procedure for the Southern District of West Virginia. (Id.) Petitioner has made no contact with this Court since the filing of his Petition on July 28, 2023. (Document No. 1.) Accordingly, the undersigned has determined that Petitioner has failed to take any steps to prosecute this action, and therefore, Petitioner's Petition in this case should be dismissed.
ANALYSIS
Pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and Rule 41.1 of the Local Rules of Civil Procedure for the Southern District of West Virginia, District Courts possess the inherent power to dismiss an action for a pro se Petitioner's failure to prosecute sua sponte. See Link v. Wabash Railroad Co., 370 U.S. 626, 629, 82 S.Ct. 1386, 1388, 8 L.Ed.2d 734 (1962). Rule 41.1 of the Local Rules provides:
Rule 41(b) of the Federal Rules of Civil Procedure provides: (b) Involuntary Dismissal: Effect. If the plaintiff fails to prosecute or to comply with these rules or any order of court, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule - - except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 - - operates as an adjudication on the merits.
Dismissal of Actions. When it appears in any pending civil action that the principal issues have been adjudicated or have become moot, or that the parties have shown no interest in further prosecution, the judicial officer may give notice to all counsel and unrepresented parties that the action will be dismissed 30 days after the date of the notice unless good cause for its retention on the docket is shown. In the absence of good cause shown within that period of time, the judicial officer may dismiss the action. The clerk shall transmit a copy of any order of dismissal to all counsel and unrepresented parties. This rule does not modify or affect provisions for dismissal of actions under FR Civ P 41 or any other authority.
Although the propriety of a dismissal “depends on the particular circumstances of the case,” in determining whether to dismiss a case involuntarily for want of prosecution, the District Court should consider the following four factors:
(i) the degree of personal responsibility of the plaintiff;
(ii) the amount of prejudice caused the defendant,
(iii) the existence of a history of deliberately proceeding in a dilatory fashion, and (iv) the existence of a sanction less drastic than dismissal.Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989). In consideration of the first factor, the Court finds that the delays in this case are attributable solely to Petitioner as the Respondent has not been required to make an appearance in this action. Petitioner has not complied with the Court's Order directing him to amend his Petition or the Clerk's Notice to either pay the requisite filing fee or file an Application to Proceed Without Prepayment of Fees and Costs. (Document Nos. 3 and 5.) Petitioner has made no contact with the Court since the filing of his Petition on July 28, 2023. (Document No. 1.) Petitioner, therefore, is the sole cause of the delays in this action. With respect to the second factor, the record is void of evidence indicating that Respondent has been prejudiced by the delays in this case. Concerning the third factor, Petitioner does have a history of “deliberately proceeding in a dilatory fashion.” Petitioner had a prior Section 2254 action dismissed for failure to prosecutive. (See Case No. 2:22-cv-00297.)
In consideration of the fourth factor, the Court acknowledges that a dismissal under either Rule 41(b) or Local Rule 41.1 is a severe sanction against Petitioner that should not be invoked lightly. The particular circumstances of this case, however, do not warrant a lesser sanction. An assessment of fines, costs, or damages against Petitioner would be unjust in view of Petitioner's failure to pay the filing fee. Moreover, explicit warnings of dismissal would be ineffective in view of Petitioner's failure to respond to (1) the Court's Order entered approximately two months ago advising Petitioner that the undersigned would recommend dismissal if Petitioner failed to file an amended Petition, and (2) the Court's show cause order entered approximately one month ago. (Document Nos. 5 and 6.) In consideration of all factors, the undersigned concludes that dismissal for failure to prosecute is warranted. Accordingly, the undersigned recommends that this action be dismissed without prejudice unless Petitioner is able to show good cause for his failure to prosecute.
PROPOSAL AND RECOMMENDATION
The undersigned hereby respectfully PROPOSES that the District Court confirm and accept the foregoing findings and RECOMMENDS, that the District Court DISMISS Petitioner's letter-form Section 2254 Petition (Document No. 1), and REMOVE this matter from the Court's docket.
The Petitioner is hereby notified that this “Proposed Findings and Recommendation” is hereby FILED, and a copy will be submitted to the Honorable United States District Judge John T. Copenhaver, Jr. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Rule 6(d) and 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days (filing of objections) and three (3) days (if received by mail) from the date of filing of this Proposed Findings and Recommendation within which to file with the Clerk of this Court specific written objections identifying the portions of the Findings and Recommendation to which objection is made and the basis of such objection. Extension of this time period may be granted for good cause.
Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S. 1208, 104 S.Ct. 2395, 81 L.Ed. 2D 352 (1984). Copies of such objections shall be served on opposing parties, District Judge Copenhaver, and this Magistrate Judge.
The Clerk is requested to send a copy of this Proposed Findings and Recommendation to Petitioner, who is acting pro se.