Opinion
Civil Action No. 19-056
07-28-2020
LANA KAY ROE, Petitioner, v. SUPERINTENDENT OF STATE CORRECTIONAL INSTITUTION, MUNCY, PENNSYLVANIA Respondent.
District Judge Arthur J. Schwab/Magistrate Judge Maureen P. Kelly REPORT AND RECOMMENDATION
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that this "Ex Rel Petition for A Writ of Habeas Corpus" (the "Petition") be dismissed without prejudice for failure to prosecute given that Petitioner failed to cure simple deficiencies for over a year and failed to respond to a second Deficiency Order, ECF No. 4, and failed to respond to the Order to Show Cause, ECF No. 5, entered on June 22, 2020.
II. REPORT
A. Procedural History
Lana Kay Roe ("Petitioner") initiated the Petition on January 18, 2019 by filing a Motion for Leave to Proceed in Forma Pauperis ("IFP Motion") which was not signed by Petitioner but by a non-attorney acquaintance. ECF No. 1. The Petition challenged her conviction for murder in the first degree as an accomplice in the shooting death of the victim by Petitioner's husband. The Petition also challenged her conviction for filing a false report. Apparently, when her husband shot the victim, Petitioner was also injured by shotgun pellets.
The docket of Petitioner's first-degree murder case, Com. v. Roe, CP-30-CR-0000343-2012 (CP Greene) is available at https://ujsportal.pacourts.us/DocketSheets/CPReport.ashx?docketNumber=CP-30-CR-0000343-2012&dnh=Gpn3SdNlncrGmmtDuWWJsw%3d%3d (site last visited 7/27/2020).
The docket of Petitioner's case for filing a false report, Com. v. Roe, CP-30-CR-0000344-2012 (CP Greene) is available at https://ujsportal.pacourts.us/DocketSheets/CPReport.ashx?docketNumber=CP-30-CR-0000344-2012&dnh=FS1LJW7JxddbojpBmVoqeQ%3d%3d (site last visited 7/27/2020).
On January 29, 2019, the Court issued a Deficiency Order, notifying Petitioner of several deficiencies in her IFP Motion and Petition, and directing her to cure the deficiencies. ECF No. 2. The case was administratively closed, and Petitioner was advised that she could reopen by curing the deficiencies. Nothing further occurred in the case until May 19, 2020, more than 15 months later, when the Court received the $5.00 filing fee and the Petition was formally docketed. ECF No. 3.
On June 2, 2020, the Court issued a second Deficiency Order, directing Petitioner to file an Amended Petition by June 16, 2020 and warning her that further delay would not be tolerated. The second Deficiency Order warned Petitioner that failure to file the Amended Petition, as required, would result in the dismissal of the Petition for failure to prosecute. ECF No. 4. The deadline of June 16, 2020 passed, and Petitioner did not fild an Amended Petition or otherwise respond to the second Deficiency Order.
Accordingly, the Court issued an Order to Show Cause why the case should not be dismissed due to Petitioner's failure to prosecute this case. ECF No. 5. Petitioner was given until July 8, 2020 to file her response to the Order to Show Cause. The deadline of July 8, 2020 has passed, and Petitioner has not filed her response as required or otherwise replied.
In light of her delay of more than 15 months in paying the filing fee, and in light of her failure to respond to the Second Deficiency Order and her failure to respond to the Order to Show Cause, the case should be dismissed for her failure to timely prosecute albeit without prejudice.
B. Discussion
A district court has the inherent power to sua sponte dismiss a case under Rule 41(b) of the Federal Rules of Civil Procedure for a party's failure to comply with an order of court. Adams v. Trustees of New Jersey Brewery Employees' Pension Trust Fund, 29 F.3d 863, 871 (3d Cir. 1994). A court's decision to dismiss for failure to prosecute is committed to the court's sound discretion. See Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225, 230 (3d Cir. 1998) ("We review for abuse of discretion a district court's dismissal for failure to prosecute pursuant to Rule 41(b)."), abrogated on other grounds by, Winkelman ex rel. Winkelman v. Parma City School Dist., 550 U.S. 516 (2007). In exercising that discretion, a district court should, to the extent applicable, consider the six factors known as the Poulis factors when it levies the sanction of dismissal of an action for failure to obey discovery schedules, failure to prosecute, or to comply with other procedural rules. Harris v. City of Philadelphia, 47 F.3d 1311, 1330 n.18 (3d Cir. 1995).
See, e.g., Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002) ("In considering the second Poulis factor . . ."). Poulis refers to Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984).
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 the following six factors to be considered: (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. However, "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). Indeed, the Court of Appeals for the Third Circuit has recognized that "not all of the Poulis factors need be satisfied in order 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 decision must be made in the context of the district court's extended contact with the litigant." Id.
In light of Petitioner's delay of more than 15 months in paying the filing fee and in light of her failure to respond to the second Deficiency Order and her failure to respond to the Order to Show Cause, the Court finds the Poulis factors sufficiently met herein to justify dismissal of this case. Weighing heavily in this Court's judgment is Poulis factor 1, i.e., the extent of the party's personal responsibility. Petitioner alone is responsible for the delay of this case and solely responsible for her failures to respond to the second Deficiency Order and to the Order to Show Cause.
In addition, Poulis factor 6, the meritoriousness of the claim(s), weighs heavily in favor of dismissal. This is because, at the time of the filing the instant Petition, Petitioner had pending state court proceedings regarding the very convictions that she challenges herein. In fact, we take judicial notice of the fact that the dockets of Petitioner's criminal cases show that she has ongoing proceedings challenging her convictions in state court. The latest entries on those dockets occurred as recently as April 28, 2020, which was an order granting a request to amend the caption. Accordingly, at the time of the filing of the instant Petition, Petitioner had not exhausted her state court remedies and, indeed, still has not exhausted those remedies. The Petition is, therefore, dismissible for failure to exhaust, and therefore, not meritorious as it currently stands.
Exhaustion is measured as of the time of the filing of the habeas petition:
the Supreme Court has explained that "Section 2254(b) requires habeas applicants to exhaust those remedies 'available in the courts of the State.' This requirement, however, refers only to remedies still available at the time of the federal petition." Engle v. Isaac, 456 U.S. 107, 125 n. 28 (1982) (emphasis added). Accordingly, in performing an exhaustion analysis, the question which the court must resolve is this: at the time he filed this habeas petition, did Petitioner have available to him any state procedure through which he could raise the issues he wishes to raise in the habeas petition. 28 U.S.C. § 2254(c).
Consequently, this Court respectfully recommends that this case be dismissed without prejudice for Petitioner's failure to prosecute this case.
III. CONCLUSION
For the reasons set out in this Report and Recommendation, it is respectfully recommended that Petitioner's case be dismissed without prejudice.
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.
Respectfully submitted, Date: July 28, 2020
/s/ Maureen P . Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE cc: The Honorable Arthur J. Schwab
United States District Judge
LANA KAY ROE
OV3262
SCI-MUNCY
PO Box 180
Muncy, PA 17756
Abbott v. PA Dept. of Corrections, CIV A 06-1451, 2007 WL 1892597, at *2 (W.D. Pa. June 28, 2007).