United States District Court, D. Delaware
KEVIN L. DICKENS, Plaintiff,
DEPUTY WARDEN KLEIN, et al., Defendants.
L. Dickens, James T. Vaughn Correctional Center, Smyrna,
Delaware, Pro Se Plaintiff.
P. Connell, Deputy Attorney General Deputy, Delaware
Department of Justice, Wilmington, Delaware. Counsel for
U.S. District Judge.
Kevin L. Dickens ("Plaintiff) filed this civil rights
action on September 16, 2010, pursuant to 42 U.S.C. §
1983. (D.I. 2) He appears pro se and was granted
leave to proceed in forma pauperis. (D.I. 13)
Pending is State Defendants' motion to dismiss for
failure to prosecute. (D.I. 79) Plaintiff did not respond to the
motion. The Court has jurisdiction pursuant to 28 U.S.C.
§ 1331. For the reasons that follow, the Court will
grant the motion.
noted, Plaintiff commenced this action in 2010 and, since
then, numerous defendants and claims have been dismissed.
Before the remaining State Defendants answered the Complaint,
they moved to sever Plaintiffs. (See D.I. 64)
Plaintiff did not respond to the motion. On March 13, 2015,
the Court denied the motion to sever and ordered Plaintiff to
show cause why some of the Defendants should not be dismissed
for failure to serve within 120 days. (D.I. 74) In response,
Plaintiff sought an extension of time to serve. (D.I. 75)
Plaintiff filed a response to the show cause order on May 4,
2015. (D.I. 76) The Court found that Plaintiff failed to show
cause why the defendants at issue should not be dismissed for
failure to serve. (See D.I. 77)
December 9, 2015, the Court entered a scheduling order that
provided a discovery deadline of July 11, 2016 and a
dispositive motion deadline of August 11, 2016. (See
D.I. 78) According to State Defendants, Plaintiff has
conducted no discovery, and the docket supports their
position. State Defendants now move to dismiss for failure to
prosecute. (D.I. 79) Plaintiff did not file a response to the
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. See
Harris v. City of Philadelphia, 47 F.3d 1311, 1330 (3d
Cir. 1995). Under Local Rule 41.1 in a case pending wherein
no action has been taken for a period of three months, upon
application of any party, and after reasonable notice and
opportunity to be heard, the Court may enter an order
dismissing the case unless good reason for the inaction is
given. See D. Del. LR 41.1.
following six factors are considered in determining 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. See Poulis v.
State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir.
1984). The Court must balance the factors and need not find
that all of them weigh against Plaintiff in order to dismiss
the action. See Emerson v. Thiel Coll., 296 F.3d
184, 190 (3d Cir. 2002). Because dismissal for failure to
prosecute involves a factual inquiry, it can be appropriate
even if some of Poulis factors are not satisfied.
See Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir.
Defendants move for dismissal based upon Plaintiffs failure
to take any action in this case since May of 2015. As noted,
Plaintiff did not respond to the motion.
Court finds that the Poulis factors warrant
dismissal of Plaintiffs case. First, as a pro se
litigant, Plaintiff is solely responsible for prosecuting his
claim. See Hoxworth v. Blinder, Robinson & Co.,980 F.2d 912, 920 (3d Cir. 1992). Second, State Defendants
are prejudiced by Plaintiffs failure to prosecute. Prejudice
occurs when a plaintiffs failure to prosecute burdens the
defendant's ability to prepare for trial. See Ware v.
Kodak Press, Inc.,322 ...