United States District Court, D. Delaware
RICHARD C. WINS, Plaintiff,
JOSEPH HARMON, Defendants.
Richard C. Ivins, Milton, Delaware, Pro Se Plaintiff.
Michael F. McTaggart, Deputy Attorney General Deputy,
Delaware Department of Justice, Wilmington, Delaware. Counsel
Richard C. Ivins ("Plaintiff) filed this civil rights
action on October 8, 2014. (D.I. 1) He appears pro
se and has paid the filing fee. Pending is Defendants'
motion to dismiss for failure to prosecute (D.I. 18) and
motion for summary judgment. (D.I. 19) Plaintiff did not
respond to either motion. The Court has jurisdiction pursuant
to 28 U.S.C. § 1331. For the reasons that follow, the
Court will grant the motion to dismiss for failure to
prosecute and will deny as moot the motion for summary
Plaintiff commenced this action he was represented by
counsel. In March 2016, Plaintiffs attorney withdrew from the
case. (D.I. 6, 7) The Court entered a scheduling order on
March 29, 2016 that provided a discovery deadline of December
31, 2016 and a dispositive motion deadline of February 1,
2017. (D.I. 8) Defendants served discovery upon Plaintiff,
but he did not respond to the discovery requests. (D.I. 11,
12) Plaintiffs deposition was scheduled for August 2, 2016.
(D.I. 17) Plaintiff appeared, but indicated that he did not
want to go forward with his case and stated on the record
that he wanted to dismiss his case. (D.I. 18-2 at 93-97)
mailed Plaintiff a stipulation of dismissal to an address he
provided at his deposition. (D.I. 18-2 at 89) According to
Defendants, it was returned as undeliverable. Defendants then
mailed the stipulation of dismissal to the address listed on
the Court docket, but plaintiff did not return the signed
stipulation of dismissal to Defendants. Subsequently,
Defendants filed a motion to dismiss and a motion for summary
judgment. (D.I. 18, 19) Plaintiff did not respond to either
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 in which 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.
Court considers the following factors 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., 1M F.2d 863, 868 (3d Cir.
1984). The Court must balance the factors and need not find
that all of them weigh against Plaintiff to dismiss the
action. See Emerson v. Thief 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.
move for dismissal based upon Plaintiffs failure to prosecute
this case. Plaintiff has failed to respond to discovery
requests, failed to respond to dispositive motions, and
indicated to Defendants that he did not wish to proceed with
Court finds that the Poults factors warrant
dismissal of Plaintiff 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). 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 F.3d 218, 222-23 (3d Cir. 2003). Here,
Plaintiff has failed to respond to discovery requests
propounded upon him and when he appeared for his deposition
provided no testimony but, instead, indicated that he did not
wish to proceed with the case.
the third factor, the Court docket indicates a history of
dilatoriness. As noted, Plaintiff has failed to respond to
two dispositive motions, has not responded to discovery, and
has taken no action since August 2, 2016, when he appeared
for his deposition. As to the fourth factor, the record
suggests that Plaintiffs failure to prosecute his claim
against Defendants is willful (indeed he indicated that ...