TAYLOR v. UNITED STATES OF AMERICA

Filing 5

OPINION. Signed by Judge Robert B. Kugler on 4/21/2014. (drw)n.m.

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
LEVAR TAYLOR,
:
:
Petitioner,
:
:
v.
:
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
_________________________________________ :

Civ. No. 14-0249 (RBK)
OPINION

ROBERT B. KUGLER, U.S.D.J.
I.

INTRODUCTION & BACKGROUND

Petitioner is a federal prisoner currently incarcerated at F.C.I. Schuykill in Minersville,
Pennsylvania. He is proceeding pro se with a motion to vacate, set aside or correct his sentence
pursuant to 28 U.S.C. § 2255. On March 7, 2014, the Court ordered petitioner to submit an
amended § 2255 motion within thirty days as his original § 2255 motion was not on the form
supplied by the Clerk. Petitioner was also warned that his failure to comply with that Order
could result in a dismissal of this action for failure to prosecute. To date, petitioner has not
complied with the March 7, 2014 Order, as he has not filed an amended § 2255 motion on the
form supplied to him by the Clerk.
II.

DISCUSSION

“A District Court has the authority to dismiss a suit sua sponte for failure to prosecute by
virtue of its inherent powers and pursuant to Federal Rule of Civil Procedure 41(b).” Iseley v.
Bitner, 216 F. App’x 252, 254-55 (3d Cir. 2007) (per curiam) (citing Link v. Wabash R.R. Co.,
370 U.S. 626, 630-31 (1962)). In this case, petitioner was ordered to file an amended § 2255
motion on the form supplied by the Clerk and was warned that failure to do so could result in the
1

dismissal of this action for failure to prosecute. Petitioner’s failure to respond to March 7, 2014
Order indicates such a failure to prosecute.
The six factors outlined in Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d
Cir. 1984), will be weighed to determine whether this action should be dismissed for failing to
prosecute. The Poulis factors are as follows: “(1) the extent of the party’s personal
responsibility; (2) prejudice to the adversary; (3) any history of dilatoriness; (4) whether the
party acted willfully or in bad faith; (5) the availability of alternative sanctions; (6) the
meritoriousness of the claim or defense.” Xenos v. Hawbecker, 441 F. App’x 128, 131 n. 3 (3d
Cir. 2011) (per curiam) (citing Poulis, 747 F.2d at 868)). “No single Poulis factor is dispositive,
and not all need to be satisfied in order to appropriately dismiss a [petition] under the test.”
Washington v. Grace, 533 F. App’x 68, 72 (3d Cir. 2013) (per curiam) (citing Briscoe v. Klaus,
538 F.3d 252, 263 (3d Cir. 2008) (citations omitted)).
In this case, petitioner is personally responsible for the failure to respond to the Court’s
March 7, 2014 Order as he is proceeding pro se. Therefore, this factor weighs against petitioner.
Accord Muhammad v. Court of Common Pleas of Allegheny Cnty., Pa., 532 F. App’x 106, 108
(3d Cir. 2013) (per curiam) (finding first Poulis factor weighs against plaintiff “because as a pro
se litigant he is ‘solely responsible for the progress of his case.’”) (quoting Briscoe, 538 F.3d at
258-59 (3d Cir. 2008)). As to the second factor, the respondent has not yet been served with the
petition in this case, and thus, petitioner’s failure to respond to the Court’s order has not
prejudiced respondent at this stage of the proceedings. Accord Williams v. Forte, 270 F. App’x
221, 224 (3d Cir. 2008) (per curiam) (finding that second Poulis factor did not weigh against
plaintiff because defendants had not yet been served). However, by failing to respond to the
Court’s Order, petitioner has shown a history of dilatoriness under the third Poulis factor.

2

Accord Novellino v. N.J. Dep’t of Corr. Mountainview Youth Corr. Facility, No. 10-4542, 2012
WL 2339698, at *2 (D.N.J. Mar. 21, 2012) (noting that plaintiff’s failure to show cause requiring
plaintiff to identify reasons why claim should not be dismissed for failure to prosecute indicates
a history of dilatoriness), report and recommendation adopted by, 2012 WL 2339826 (D.N.J.
June 15, 2012). As to the fourth and fifth factors, while the Court cannot determine whether
petitioner has acted with bad faith, the Court notes that petitioner was warned that failure to
respond to the Court’s Order could result in dismissal of this action, yet he still failed to respond
to the Order by filing an amended § 2255 motion on the correct form. Accord Muhammad, 2013
WL 4400877, at *2 (finding that fifth Poulis factor weighs in favor of dismissal when plaintiff
was previously warned that failure to abide by Court order could result in dismissal of his case);
Johnson Shavers v. MVM, Inc., No. 04-666, 2008 WL 304938, at *4 (D.N.J. Jan. 29, 2008) (“As
to the fifth Poulis factor, having once dismiss the case for failure to prosecute and warning
Plaintiff about the possibility of dismissal, the Court finds that dismissal is the only appropriate
sanction.”) (emphasis added).
Finally, as to the sixth Poulis factor, the petition does not appear to state a meritorious
claim. At the outset, the Court notes that petitioner has had a previous § 2255 motion attacking
his judgment and conviction denied. (See Civ. No. 09-1537.) The United States Court of
Appeals denied a certificate of appealability on that motion after determining that plaintiff failed
to establish a constitutional violation. (See Civ. No. 09-1537, Dkt. No. 23.) “Before a second or
successive § 2255 motion may be filed in the district court, the applicant must move in the
appropriate court of appeals for an order authorizing the district court to consider the motion.”
In re Olabode, 325 F.3d 166, 169 (3d Cir. 2003) (citing 28 U.S.C. § 2244(b)(3)(A), 2255). In
this case, petitioner does not indicate that he received permission from the United States Court of

3

Appeals to file this new § 2255 motion. Thus, it appears as if this Court would lack jurisdiction
to consider this § 2255 action on the merits.
Furthermore, it is worth noting that petitioner appears to challenge the United States’
jurisdiction under the Constitution to charge him with conspiracy to commit wire fraud. Such a
jurisdictional argument would presumably be without merit even if this Court had jurisdiction to
consider this § 2255 action See United States v. Karamanos, 38 F. App’x 727, 729 (3d Cir.
2002) (“The United States Supreme Court has consistently maintained that Congress may
constitutionally regulate the ‘channels’ and ‘instrumentalities’ of interstate commerce.”) (citing
United States v. Morrison, 529 U.S. 598, 609 (2000)); see also United States v. Louper-Morris,
672 F.3d 539, 563 (8th Cir. 2012) (holding that petitioner’s challenge to wire fraud statute, 18
U.S.C. § 1343, fails as Section 1343 is within the extensive reach of the Commerce Clause)
(citations omitted); United States v. Hook, 195 F.3d 299, 310 (7th Cir. 1999) (holding that 18
U.S.C. § 1343 is within the extensive reach of the Commerce Clause). Thus, the sixth Poulis
factor weighs against petitioner.
III.

CONCLUSION

Upon considering and weighing the Poulis factors outlined above, the Court finds that
dismissal of this action pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute
is warranted. An appropriate order will be entered.

DATED:

April 21, 2014
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

4