Opinion
Civil Action 22-382
07-08-2022
IVAN PLESAKOV, Petitioner, v. ORLANDO HARPER, Warden; ADAM SMITH, Deputy Warden; and RICH FITZGERALD, County Executive, Respondents.
Hon. Cathy Bissoon United States District Judge
REPORT AND RECOMMENDATION
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the following reasons, it is respectfully recommended that the Petition for Writ of Habeas Corpus (the “Petition”) submitted in the above-captioned case, ECF No. 1, be dismissed for failure to prosecute. To the extent that one is required, a certificate of appealability should be denied.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner Ivan Plesakov (“Petitioner”) submitted his Petition for filing on March 1, 2022. In this Petition, Petitioner challenges the conditions of his confinement in Allegheny County Jail (“ACJ”). Id. ¶¶ 15-17. Specifically, Petitioner claims that he has been locked in his jail cell for lengths of time which exceed those prescribed by Allegheny County law. Id. ¶¶ 12-14. Petitioner did not submit a motion for leave to proceed in forma pauperis (“IFP”) or the necessary filing fee with the Petition. This Court issued a Deficiency Order on March 8, 2022, ordering Petitioner to pay the filing fee or move to proceed IFP. The deadline for Petitioner to cure the deficiencies identified therein was April 8, 2022. ECF No. 2 at 2.
On June 9, 2022, this Court issued an Order to Show Cause, ECF No. 3, in which Petitioner was directed to show good cause as to why the present matter should not be dismissed for failure to comply with the Deficiency Order. Id. at 1. In the Order to Show Cause, Petitioner was advised that failure to respond would result in the dismissal of the case for failure to prosecute. Id. The deadline for Petitioner to respond to the Order to Show Cause was June 30, 2022. Id. No response has been received.
On June 22, 2022, copies of both the Deficiency Order and the Order to Show Cause mailed to Petitioner were returned to the Court marked “RTS. Gone.” ECF No. 4. As of this date, Petitioner has not responded to the Order to Show Cause, nor has he attempted to correct the deficiencies identified in the Deficiency Order.
B. DISCUSSION
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 a six-factor balancing test to assist a court in determining whether a case should be dismissed for failure to prosecute. The six factors are: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (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. The Poulis factors are not a “magic formula” which can determine whether a case should be dismissed for failure to prosecute. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d. Cir. 1984). Moreover, all six of the Poulis factors do not need to weigh in favor of dismissal for a court to dismiss a complaint. See C. T. Bedwell & Sons, Inc. v. Int'l Fidelity Ins. Co., 843 F.2d 683, 696 (3d Cir. 1988). Instead, the court must “properly consider and balance” each factor in light of the present facts. Hildebrand v. Allegheny Cnty., 923 F.3d 128, 132 (3d Cir. 2019) (citing Poulis, 747 F.2d at 868). Application of the Poulis factors is appropriate in the context of habeas cases as well as to civil rights actions. Harlacher v. Pa., 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).
The United States Court of Appeals for the Third Circuit has instructed that the Poulis factors should be evaluated, where possible, to “resolve doubt in favor of a decision on the merits.” Hildebrand, 923 F.3d at 138. While dismissal of a complaint is considered a “last resort,” such an outcome is nevertheless “a sanction rightfully in the district courts' toolbox.” Id. at 132, 138.
The first Poulis factor requires the Court to consider the extent to which the Petitioner is personally responsible for the sanctionable conduct. See Adams v. Trustees of N.J. Brewery Employees' Pension Trust, 29 F.3d 863, 873 (3d Cir. 1994) (“[I]n determining whether dismissal is appropriate, we look to whether the party bears personal responsibility for the action or inaction which led to the dismissal.”). Petitioner has received two Orders from this Court and failed to comply with the clear instructions therein or to provide just cause for his failure to do so by the assigned date. This factor weighs in favor of dismissal.
The second Poulis factor considers whether Petitioner's failure to comply with the orders of this Court has prejudiced the adverse party. Such prejudice can include “the irretrievable loss of evidence, the inevitable dimming of witnesses' memories, or the excessive and possibly irremediable burdens or costs imposed on the opposing party.” Id. at 874. Prejudice can also be recognized as “the burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy.” Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003). This case is in its infancy, and Respondents have not been served. This Court cannot discern prejudice to any party. Therefore, the Court treats this factor as neutral.
The third Poulis factor asks whether Petitioner has a history of dilatoriness. Petitioner has failed to comply with the instructions and deadlines given in two consecutive Orders. ECF Nos. 2 and 3. Petitioner additionally appears not to have maintained a current address with this Court. Therefore, this factor weighs in favor of dismissal.
The fourth Poulis factor considers whether the Petitioner's conduct was willful or in bad faith. According to the United States Court of Appeals for the Third Circuit, willful behavior is “intentional or self-serving.” Adams, 29 F.3d at 874. Petitioner has failed to comply with two Orders. Such failure to follow a Court order would normally appear willful, barring any information which would suggest that the Petitioner did not receive the Orders. However, both Orders mailed to Petitioner by the Court were returned to sender marked as “RTS. Gone.” ECF No. 4. This would suggest that Petitioner has not received either Order. While Petitioner's potential absence from ACJ speaks to the mootness of his claim, it does not speak to the willfulness of his failure to respond to either Order. Therefore, the Court treats this factor as neutral.
The fifth Poulis factor asks whether there are any available and effective alternatives to dismissal. Alternative sanctions are not effective against a party who refuses to communicate with the court. Mack v. United States, 2019 WL 1302626, at *2 (noting that the court is “incapable of imposing a lesser sanction” on a party who refuses to participate in his own lawsuit). Therefore, this factor weighs in favor of dismissal.
The sixth and final Poulis factor requires that the Court consider the potential merit of Petitioner's claims. A claim will be deemed meritorious “when the allegations of the pleadings, if established at trial, would support recovery by plaintiff.” Poulis, 747 F.2d at 869-70. In his Petition, Plaintiff appears to rely upon Hope v. Warden York County Prison, 972 F.3d 310 (3d Cir. 2020). See also ECF No. 1 ¶ 1. In Hope, the Court of Appeals for the Third Circuit found that federal immigration detainees' claims for release were cognizable in a habeas petition under 28 U.S.C. § 2241. Hope, 927 F.3d at 323 and 325. The Court notes that the petitioners in at case were unequivocal that they sought outright release, and not a mere modification of their conditions of confinement. Id. at 323. The Court of Appeals was clear that “[i]n recognizing the viability of this § 2241 claim [it was] not creating a garden variety cause of action.” Id. at 324. Habeas relief under Section 2241 has not been extended by Hope beyond these limited circumstances. See, e.g., Houck v. Moser, No. 20-cv-255, 2021 WL 1840827, at *2 (W.D. Pa. May 7, 2021) (“Even in the COVID-19 era, a writ of habeas corpus is not a generally available remedy outside the immigrant detainee context contemplated in Hope[.]”). Unlike the petitioners in Hope, Petitioner in the present matter is seeking only a modification of his confinement conditions, and not outright release. As a result, Petitioner's reliance on Hope in the present matter is misplaced. If Petitioner wishes to submit a claim challenging the conditions of his confinement at ACJ, he must do so in a separate civil rights case. See Arrington v. Commonwealth., No. 21-cv-1282, 2022 WL 317147, at *3 (W.D. Pa. Jan. 13, 2022), report and recommendation adopted, 2022 WL 314675 (W.D. Pa. Feb. 2, 2022) (“If Petitioner wants to pursue claims regarding the alleged mold at the Beaver County Jail, the mental health care he receives there, or whether the jail follows applicable local, state or federal guidelines or its grievance procedures, he may only do so in separate civil rights case filed under 42 U.S.C. § 1983.”). Additionally, the aforementioned “RTS. Gone” language written on the envelopes of the Orders returned to this Court implies that Petitioner is no longer being held in ACJ. The evidence of record thus indicates that this case lacks merit and/or is moot. Petitioner has failed to comply with this Court's Order to explain why it is not moot. Therefore, the sixth factor weighs in favor of dismissal.
On balance, this Court concludes that four of the six Poulis factors weigh in favor of dismissal. As a result, this Court concludes that, on the present facts, dismissal is appropriate. A certificate of appealability should be denied, because jurists of reason would not find the foregoing debatable. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
C. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Petition be dismissed due to Petitioner's failure to prosecute. To the extent that a certificate of appealability is required, the same should 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.