Opinion
Civil Action 21-cv-943
01-31-2022
JUWAN EVRICK MITCHELL, Plaintiff, v. BRUCE R. BENNER; JOSEPH R. SEAMAN; DIENNA MARIE BROWN; and MIPPDREAA Defendants.
Marilyn J. Horan, 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 for failing to respond to the orders of this Court. It is further recommended that a certificate of appealability be denied.
II. REPORT
This case was initiated on July 20, 2021, by Juwan Evrick Mitchell (“Petitioner”) with the submission of a Complaint for Violation of Civil Rights without a filing fee or motion for leave to proceed in forma pauperis (“IFP”). ECF No. 1.
On July 30, 2021, this Court issued an Order directing to Petitioner to notify the Court whether he sought habeas relief or intended to pursue a civil rights action. ECF No. 2. In response, Petitioner submitted a filing confirming that he wished to proceed with a habeas petition. ECF No. 3. With the same filing, he submitted a habeas petition on the approved form, and filed an IFP motion. The IFP motion was deficient in several respects.
On August 27, 2021, this Court issued a Deficiency Order enumerating the above-referenced deficiencies, and ordering Petitioner to correct them on or before September 27, 2021. ECF No. 5. Petitioner responded with an amended habeas petition. ECF No. 6. But he did not correct any of the deficiencies enumerated in the Deficiency Order, which include paying the applicable filing fee, or properly moving for leave to proceed IFP.
An Order to Show Cause was issued on October 29, 2021. Petitioner responded with some - but not all - of the documents necessary to cure the identified deficiencies. Accordingly, a Second Deficiency Order was issued on December 7, 2021. ECF No. 11. That order was mailed to Petitioner's address of record the following day.
As of this date, Plaintiff has failed to respond to the Second Deficiency Order, or otherwise cure the filing deficiency identified therein.
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
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 habeas petition. There is no indication that any Respondent has been prejudiced unfairly by Petitioner's conduct.
(3) A history of dilatoriness
Petitioner has failed to respond to the Second Deficiency Order, or to correct the filing deficiency identified therein. This is sufficient evidence, in this Court's view, to indicate that Petitioner 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 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
In the amended habeas petition, Petitioner complains of his 2021 conviction in the Court of Common Pleas of Allegheny County at Case No. CP-02-CR-11872-2019. See ECF No. 6 at 1; See also Docket, Com v. Mitchell, No. CP-02-CR-11872-2019 (Pa. Com. Pl. filed Oct. 29, 2019), (available at https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-02-CR- 0011872-2019&dnh=KS82N6lLDxWylxuDZYUlEw%3D%3D (last visited Jan. 27, 2022)). It appears from the docket that a PCRA petition was filed in that case on or about October 4, 2021. Thus, while it is difficult to say for certain without the state court record, it appears that Petitioner's claims in the state courts are not yet exhausted.
Because at least four of the six Poulis factors weigh in favor of dismissal, dismissal is appropriate under Rule 41(b) for failure to prosecute. To the extent that one is required, a certificate of appealability should be denied because jurists of reason would not find the foregoing debatable.
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 for Petitioner's failure to respond to the orders of this Court. It is further recommended 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).