Opinion
Civil Action 21-cv-744
02-25-2022
MALIK LARON MILLIGAN, Plaintiff, v. COMMONWEALTH OF PENNSYLVANIA; PA DEPARTMENT OF JUSTICE; MAYOR BILL PEDUTO; and TOM WOLF, Defendants.
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.
II. REPORT
The above captioned case was commenced on June 4, 2021, by Malik Laron Milligan (“Plaintiff”) with the submission of a putative Complaint without a filing fee or motion for leave to proceed in forma pauperis (“IFP”). ECF No. 1.
It was unclear from the Complaint whether Plaintiff seeks to proceed with a civil rights lawsuit, or is seeking habeas relief. On June 10, 2021, Plaintiff was ordered to complete a checklist clarifying his intentions and, if he was seeking habeas relief, to complete the Court's form Section 2241 habeas petition. ECF Nos. 2, 2-1, and 2-2. The deadline to respond was July 12, 2021. ECF No. 2 at 3.
On July 14, 2021, the Order of June 10, 2021 was returned to this Court as undelivered and marked “RTS/No DOC number.” Plaintiff's inmate number was added to his address of record on the docket, and the Order was re-mailed to him at his updated address on July 27, 2021, along with a text order extending the response deadline to August 27, 2021. ECF No. 4. That mailing has not been returned to the Court. As of this date, Plaintiff has failed to respond to the Order of June 10, 2021, or to otherwise clarify the nature of the relief that he seeks.
In light of Plaintiff's failure to comply with the Order of June 10, 2021, this Court issued an Order to Show Cause on October 29, 2021, with which Plaintiff once again was sent a copy of the checklist and this Court's form Section 2241 habeas petition. ECF No. 5. The deadline to respond to that order was November 29, 2021. ECF No. 5 at 2. As of this date, Plaintiff has failed to respond to the Order to Show Cause, or to comply with the Order of June 10, 2021.
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). Consideration of the factors listed above is as follows.
(1) The extent of the party's personal responsibility
Plaintiff 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
The Defendants to this action have not been served. There is no indication that any party has been prejudiced unfairly by Plaintiff's conduct.
(3) A history of dilatoriness
Plaintiff has refused to clarify the nature of his suit, or to comply with court orders. This is sufficient evidence, in this Court's view, to indicate that Plaintiff does not intend to proceed with this case in a timely manner.
(4) Whether the party's conduct was willful or in bad faith
There is no indication on the record that Plaintiff's conduct is the result of any “excusable neglect, ” Poulis, supra. The conclusion that Plaintiff's failure is willful is inescapable.
(5) Alternative sanctions
Plaintiff 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
This case is in its infancy, and it is unclear how this case would be disposed.
Because four of the six Poulis factors weigh in favor of dismissal, dismissal is appropriate under Rule 41(b) for failure to prosecute.
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.