Opinion
Civil Action 23-208J
02-06-2024
OVOUKE FRANK OFIKORO, Petitioner, v. WARDEN UNDERWOOD; and W. C. FANNIN UNIT MANAGER, Respondents.
Hon. Stephanie L. Haines 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 for failure to prosecute.
II. REPORT
At the time of filing, Petitioner Ovouke Frank Ofikoro (“Petitioner”) was a federal prisoner held in the Federal Correctional Institution at Loretto (“FCI-Loretto”) in Cresson, Pennsylvania. This case was initiated on September 5, 2023 with the submission of Petitioner's self-styled “Petitioner under 28 U.S.C.§ 2241 For a Writ of Habeas Corpus By a Person in Federal Custody” (the “Petition”). ECF No. 1. The Petition was submitted without payment of the filing fee, or a motion for leave to proceed in forma pauperis (“IFP”).
In the Petition, Petitioner seeks federal habeas relief pursuant to 28 U.S.C. § 2241 in the form of application of Earned Time Credits under the First Step Act (“FSA”) to his sentence. ECF No. 1 at 1. See also 18 U.S.C. § 3632(d).
On September 6, 2023, this Court issued a Deficiency Order, ECF No. 2, identifying various filing deficiencies in light of the Federal Rules of Civil Procedure, statutory requirements, and our Local Rules and practices. Petitioner was ordered to cure these deficiencies by October 6, 2023, and was warned that failure to do so would result in dismissal of this case for failure to prosecute. Id. at 2. A copy of the Deficiency Order was mailed to Petitioner at his address of record. Id.
Petitioner failed to respond to the Deficiency Order. As a result, on October 24, 2023, the undersigned issued an Order to Show Cause why this case should not be dismissed. ECF No. 3. Petitioner was warned that failure to respond to the Order to Show Cause on or before November 14, 2023, may result in dismissal for failure to prosecute. Id. at 2. A copy of the Order to Show Cause was mailed to Petitioner at his address of record.
On November 9, 2023, the Order to Show Cause was returned to the Court marked “RETURN TO SENDER” and “Not at FCI Loretto.” ECF No. 4.
As of this date, Petitioner has not responded to the Order to Show Cause, nor has he cured the filing deficiencies identified in the Deficiency Order. In addition, he has not updated his address of record, nor has he filed anything else in this case. A review of the federal Bureau of Prisons website indicates that Petitioner was released on October 4, 2023. https://www.bop.gOv/inmateloc// (last visited Feb. 6, 2024). As a result, the Court considers appropriate action.
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, 850F.2dl52 (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 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 in this matter.
(3) A history of dilatoriness
Petitioner has refused to respond to the Deficiency Order and the Order to Show Cause. Further, the public record suggests that Petitioner has been released from federal custody and his
Petition may be moot. In addition, Petitioner failed to update his address with this Court. 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
There is no indication on the record that Petitioner's conduct to date was the result of any “excusable neglect,” Poulis, supra. The conclusion that his failure to respond to the orders of this Court 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
“A case is moot when the issues presented are no longer ‘live' or the parties lack a legally cognizable interest in the outcome.” Joseph v. Johns, No. 04-139J, 2005 WL 3447932, at *2 (W.D. Pa. Oct. 24, 2005), (quoting Fla. Ass'n of Rehab. Facilities, Inc, v. State of Fla. Dept, of Health and Rehab. Servs., 225 F.3d 1208, 1216 (11th Cir. 2000)), report and recommendation adopted, 2005 WL 3447933 (W.D. Pa. Dec. 14, 2005).
The public record suggests that Petitioner no longer is in federal custody. However, it is unclear whether that moots the entire Petition. Because Petitioner has not seen fit to comply with this Court's orders, or to maintain contact with this Court, any opportunity to clarify this ambiguity must go unrealized. This factor is neutral.
Four of the six Poulis factors weigh at least somewhat in favor of dismissal. But Petitioner's dilatory conduct has vexed this Court's ability to determine whether the Petition presents a live case or controversy. The result of Petitioner's dilatory behavior is that the first, third, and fourth Poulis factors weigh heavily in favor of dismissal. Accordingly, dismissal is appropriate under Rule 41(b) for failure to prosecute.
A certificate of appealability is not required for federal prisoners seeking relief under Section 2241. Muza v. Werlinger, 415 Fed.Appx. 355, 357 n.l (3d Cir. 2011). Therefore, it is not necessary to determine whether one should be issued here.
III. CONCLUSION
Based on the reasons set forth above, it is respectfully recommended that this case be dismissed.
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 within fourteen days, or seventeen days for unregistered ECF Users. 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.