United States District Court, D. Delaware
LEE G. BOOKS, Plaintiff,
SAMUEL C. HASTINGS, Defendant.
Lee G. Books, Newark, Delaware. Pro Se Plaintiff.
Devera Breeding Scott, Deputy Attorney General, Delaware Department of Justice, Dover, Delaware. Counsel for Defendant.
SUE L. ROBINSON, District Judge.
Plaintiff Lee G. Books ("plaintiff") proceeds pro se and was granted leave to proceed in forma paupers. He filed this civil action on July 17, 2012. (D.I. 2) At the time, he was an inmate held within the Delaware Department of Correction. He has since been released. The court has jurisdiction pursuant to 28 U.S.C. § 1331. Before the court are defendant's motions to dismiss for failure to prosecute and for summary judgment. (D.I. 56, 61) The court will grant the motions to dismiss for failure to prosecute and will deny as moot the motion for summary judgment.
Plaintiff alleges that defendant violated his constitutional rights by reason of excessive force. After defendant was served and answered the complaint, the court issued a scheduling order that established deadlines for completing discovery and briefing dispositive motions. (D.I. 49) On May 2, 2014, defendant filed a motion for summary judgment or, in the alternative, motion to dismiss for failure to prosecute. (D.I. 56) Plaintiff did not respond to the motion for summary judgment and, on June 6, 2014, the court entered a briefing schedule with regard to the motion for summary judgment and sent it to the last address plaintiff provided to the court. (D.I. 58) It was returned as "not deliverable as addressed unable to forward." (D.I. 60) Plaintiff did not participate in the discovery process and did not appear for his deposition. (D.I. 57, ex. at pl.'s dep.) The last action taken by plaintiff occurred on October 23, 2013, when he moved for leave to proceed in forma pauperis, and he requested that the Clerk of Court prepare a summons for defendant.
Presently before the court are defendant's motions for summary judgment and to dismiss for failure to prosecute (D.I. 56, 61)
III. FAILURE TO PROSECUTE
The court turns to the issue of plaintiff's failure to prosecute, given that he did not attend his deposition, did not participate in the discovery process, did not file any type of responses to defendant's dispositive motions, and has not provided the court with his current address.
Rule 37 of the Federal Rules of Civil Procedure provides the court with the authority to dismiss a case for failure to comply with a discovery order and for a party's failure to attend his own deposition. Fed.R.Civ.P. 37(b), (d). In addition, pursuant to Fed.R.Civ.P. 41 (b), a court may dismiss an action "[f]or failure of the plaintiff to prosecute or to comply with [the Federal Rules] or any order of court...." Although dismissal is an extreme sanction that should only be used in limited circumstances, dismissal is appropriate if a party fails to prosecute the action. Harris v. City of Philadelphia, 47 F.3d 1311, 1330 (3d Cir. 1995).
The following six factors determine whether dismissal is warranted: (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 was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of other sanctions; and (6) the meritoriousness of the claim or defense. Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984); see also Emerson v. Thiel Coli., 296 F.3d 184, 190 (3d Cir. 2002) ; Huertas v. United States Oep't of Educ., 408 F.Appx. 639 (3d Gir. 2010) (unpublished).
The court must balance the factors and need not find that all of them weigh against plaintiff to dismiss the action. Emerson, 296 F.3d at 190 (3d Gir. 2002). Because dismissal for failure to prosecute involves a factual inquiry, it can be appropriate even if some of the Poulis factors are not satisfied. Hicks v. Feeney, 850 F.2d 152, 156 (3d Gir. 1988); Curtis T. Bedwell & Sons, Inc. v. International Fidelity Ins. ...