McDonald v. Commonwealth of PA et al
Filing
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ORDER (memorandum filed previously as separate docket entry), Petition for writ of Habeas Corpus filed under 28 U.S.C. 2254, (Doc. 1), is DISMISSED WITH PREJUDICE. The report and recommendation of Magistrate Judge Susan E. Schwab, (Doc. 17), is now moot. The Clerk of Court is directed to mark this case closed. Signed by Honorable Malachy E Mannion on 12/22/16. (lh)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JOHN MCDONALD,
:
CIVIL ACTION NO. 3:13-2957
Petitioner
:
v.
:
MARIOSA LAMAS,
Respondent
(MANNION, D.J.)
(SCHWAB, M.J.)
:
:
MEMORANDUM
Pending before the court is the report and recommendation of
Magistrate Judge Susan E. Schwab, (Doc. 17), recommending that the court
deny petitioner John McDonald’s petition for writ of habeas corpus, (Doc. 1).
Mr. McDonald has failed to advise the court of his address since his release
from custody. Because of this the Clerk of Court was unable to deliver Judge
Schwab’s report to him, which would allow him an opportunity to object to the
report pursuant to Local Rule 72.3. The court finds that Mr. McDonald has
failed to prosecute this action and failed to comply with the local rules of this
court. As such, his petition is DISMISSED WITH PREJUDICE.
On December 9, 2013, Mr. McDonald filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. §2254. (Doc. 1). On November 18, 2016, Judge
Schwab provided a report recommending that the court deny Mr. McDonald’s
petition due to his failure to exhaust state remedies. (Doc. 17). The report was
mailed to Mr. McDonald at the Rockview State Correctional Institution in
Bellefonte, Pennsylvania (“SCI-Rockview”) where he was housed as an
inmate at the time of his initial petition filing. On November 11, 2016, the
report was returned to the court and was marked as undeliverable, with no
forwarding address. (See Doc. 18). On December 12, 2016, the court was
informed by the records department at SCI-Rockview that Mr. McDonald was
no longer an inmate and that he was released on parole approximately two
(2) years ago. Mr. McDonald failed to provide this court with his personal
address upon his release from custody. His last contact with the court
occurred approximately three (3) years ago, on December 19, 2013, when he
elected to have the court rule on his petition under 28 U.S.C. §2254. (See
Doc. 4). At this stage, it appears quite clear that Mr. McDonald has
abandoned his petition. As such, dismissal is warranted under Federal Rule
of Civil Procedure 41(b).
Rule 41(b) allows the court to dismiss an action where a party has failed
to prosecute or failed to comply with the district court’s rules or orders. The
rule empowers the district court to dismiss a civil action sua sponte. Briscoe
v. Klaus, 538 F.3d 252, 258 (3d Cir. 2008). Normally, district courts are
required to evaluate the six factors set forth in Poulis v. State Farm Fire &
Insurance Casualty, 747 F.2d 863 (3d Cir. 1984), prior to the dismissal. See,
e.g., id. at 257–58. A district court should also provide the party with an
opportunity to explain the reasons for failing to prosecute and/or comply with
rules and orders. In re Asbestos Prods. Liab. Litig. (No. VI), 718 F.3d 236,
247 (3d Cir. 2013). “However, when a litigant’s conduct makes adjudication
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of the case impossible, such balancing under Poulis is unnecessary.”
McLaren v. N.J. Dep’t of Educ., 462 F. App’x 148, 149 (3d. Cir. 2012)
(nonprecedential) (citing Guyer v. Beard, 907 F.2d 1424, 1429–30 (3d Cir.
1990)). In addition, where a party has failed to provide a current address, an
order attempting to contact the party to warn him or her of sanctions and to
prompt a response “would only find itself taking a round trip tour through the
United States mail.” Id. (quoting Carey v. King, 856 F.2d 1439, 1441 (9th Cir.
1988)).
Mr. McDonald has failed to comply with the court’s local rules. Local
Rule 83.18 imposes an affirmative obligation on pro se litigants to keep the
court informed of their whereabouts. The rule provides as follows:
Whenever a party by whom or on whose behalf an initial paper is
offered for filing is not represented in the action, such party shall
maintain on file with the clerk a current address at which all
notices and copies of pleadings, motions or papers in the action
may be served upon such party.
Local R. 83.18. Mr. McDonald’s failure to keep the court apprised of his
whereabouts upon his release from SCI-Rockview was a clear violation of the
rules of this court. His release occurred nearly two (2) years ago and the court
can find no justification for Mr. McDonald’s failure to contact the court within
that time frame.
The present circumstance does not present an instance where there
may have been a postal error and additional service may rectify the problem,
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but presents a complete and total failure of Mr. McDonald to keep the court
apprised of his whereabouts. Compare McLaren, 462 F. App’x at 149, with
Bishop v. USDA ,— F. App’x — , 2016 WL 3743162 (3d Cir. July 13, 2016).
Because of this, the court is unable to communicate with Mr. McDonald, warn
him that his petition faces dismissal, and allow him to respond. Nor can the
court meaningfully engage in an analysis of the Poulis factors. See McLaren,
462 F. App’x at149. Accordingly, Mr. McDonald’s abandonment of the action
and his failure to comply with local rules warrants dismissal under Rule 41(b).
In accordance with the above findings, Mr. McDonald’s petition for writ
of habeas corpus filed pursuant to 28 U.S.C. §2254 is DISMISSED WITH
PREJUDICE and the report and recommendation of Judge Schwab, (Doc.
17), is now moot.1 A separate order shall issue.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: December 22, 2016
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2013 MEMORANDA\13-2957-01.wpd
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Although the court finds that Judge Schwab’s report is now moot, the
court has reviewed the conclusions reached therein and agrees with Judge
Schwab’s analysis and recommendation. Thus, if Mr. McDonald were to
attack this court’s judgment under Federal Rule of Civil Procedure 60, the
court can see no objection that would save Mr. McDonald’s petition from
eventual dismissal.
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