IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MICHAEL LEE MYERS, )

Petitioner )

)

v. ) C.A. No. 05-334 Erie

)

NISH, )

Respondent. )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION 

I RECOMMENDATION

It is respectfully recommended that the instant habeas corpus action be dismissed for

Petitioner’s failure to prosecute.

II REPORT

On November 9, 2005, the Clerk of Courts received a Petition for Writ of Habeas

Corpus from Petitioner Michael Lee Myers, an inmate at the State Correctional Institution at

Waymart, Pennsylvania; however, Petitioner did not pay the filing fee or file a motion to

proceed in forma pauperis. Thus, by Order of this Court dated November 16, 2005, Petitioner

was directed to pay the filing fee of $5.00 to the Clerk of Courts or file a motion to proceed in

forma pauperis with an accompanying institutional account statement before December 5, 2005,

or suffer dismissal of this case for failure to prosecute. To date, the filing fee remains unpaid

and Petitioner has failed to file a motion to proceed in forma pauperis.

The United States Court of Appeals for the Third Circuit has set out a six-factor

balancing test to guide a court in determining whether dismissal of a case is appropriate. Poulis

v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir. 1984). The court must consider: 

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)

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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. Not all of the six factors need to weigh in

favor of dismissal before dismissal is warranted. Hicks v. Feeney, 850 F.2d 152 (3d Cir. 1988).

Applying the Poulis factors to the present matter, this Court recommends the dismissal

of this matter. Since the filing of this matter, Petitioner has taken none of the necessary first

steps to prosecute this case. Further, Plaintiff has failed to comply with an order of this Court. 

Plaintiff is proceeding pro se and therefore bears all of the responsibility for any failure in the

prosecution of his claims. Alternative sanctions, such as monetary penalties, are inappropriate

with indigent parties. Although Plaintiff’s allegations may state a claim upon which relief could

be ultimately be granted, the merits of the claim are impossible to determine at this early stage

of the proceedings.

III CONCLUSION

For the foregoing reasons, it is respectfully recommended that this case be dismissed due

to Petitioner’s failure to prosecute.

In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Local

Rule 72.1.4B, the parties are allowed ten (10) days from the date of service to file written

objections to this report. Any party opposing the objections shall have seven (7) days from the

date of service of objections to respond thereto. No extensions of time will be granted. Failure

to timely file objections may constitute a waiver of any appellate rights.

S/Susan Paradise Baxter 

SUSAN PARADISE BAXTER

Chief U.S. Magistrate Judge

Dated: January 17, 2006

cc: The Honorable Sean J. McLaughlin 

United States District Judge 

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