Opinion
Civil Action 21-1107
01-03-2022
SAMUEL OKORIE, Petitioner, v. MICHAEL ZAKEN; DISTRICT ATTORNEY STEPHEN ZAPALA; and ATTORNEY GENERAL JOSH SHAPIRO, Respondents.
MAUREEN P. KELLY, MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
NORA BARRY FISCHER, DISTRICT JUDGE
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that this case be dismissed for failure to prosecute. It is further recommended that a certificate of appealability be denied.
II. REPORT
A. Procedural History
Petitioner Samuel Okorie (“Petitioner”) is a state prisoner currently incarcerated at the State Correctional Institution at Greene (“SCI-Greene”) in Waynesburg, Pennsylvania. Petitioner submitted a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the “Petition”), which was received by this Court on August 19, 2021. ECF No. 1. The Petition was submitted without filing fee or a motion for leave to proceed in forma pauperis (“IFP”).
On August 23, 2021, this Court issued a Deficiency Order, in which Petitioner was ordered to pay the filing fee or file an IFP motion. ECF No. 2. The Deficiency Order was mailed to Petitioner at his address of record on the same date. Petitioner was ordered to respond thereto on or before September 22, 2021. Id. at 2. As of this date, Petitioner has failed to respond to the Deficiency Order, or to pay the filing fee, or to move for leave to proceed IFP.
In light of Petitioner's failure to respond to the Deficiency Order, this Court issued an Order to Show Cause on October 15, 2021, ECF No. 3, which was mailed to Petitioner at his address of record on the same date. Petitioner was directed to respond and to correct the filing deficiencies discussed above, on or before November 15, 2021. ECF No. 3 at 2. As of this date, Petitioner has failed to respond to the Order to Show Cause, or otherwise to correct any of the identified filing deficiencies
B. Discussion
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 to dismiss 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).
“Poulis did not provide a magic formula whereby the decision to dismiss or not to dismiss a plaintiff's complaint becomes a mechanical calculation easily reviewed by” the Court of Appeals. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992). Application of the Poulis factors is appropriate in the context of habeas cases as well as to civil rights actions. Harlacher v. Pennsylvania, 3:CV-10-0267, 2010 WL 1462494, at *3 (M.D. Pa. Mar. 12, 2010), report and recommendation adopted, CIV.A 3:CV-10-0267, 2010 WL 1445552 (M.D. Pa. Apr. 9, 2010) (applying Poulis to a habeas case). Consideration of the Poulis factors 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 a habeas petition. There is no indication that any Respondent has been prejudiced unfairly by Petitioner's conduct.
(3) A history of dilatoriness
Petitioner has refused to pay the filing fee, move for leave to proceed IFP, or to respond to multiple court orders. 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
This case is in its infancy. As such, the merits of Petitioner's claims have not been established.
Because four of the six Poulis factors weigh in favor of dismissal, 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 the foregoing debatable.
III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Petitioner's case be dismissed without prejudice. 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). 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.