United States District Court, D. Delaware
Jermaine Greene, Howard R. Young Correctional Institution,
Wilmington, Delaware. Pro Se Plaintiff
Clement Handlon, Deputy Attorney General, Delaware Department
of Justice, Wilmington, Delaware; Counsel for Defendant.
ANDREWS, U.S.DISTRICT JUDGE.
Jermaine Greene, an inmate at the Howard R. Young
Correctional Institution, Wilmington, Delaware filed this
action pursuant to 42 U.S.C. § 1983. When he commenced
this action, Plaintiff was housed at the James T. Vaughn
Correctional Center, in Smyrna, Delaware. He appears pro
se and has been granted leave to proceed in forma
pauperis. (D.I. 6). Defendant moves to dismiss for
failure to prosecute or, in the alternative, for summary
judgment. (D.I. 24).
commenced this action on May 3, 2017. (D.I. 1). On October 3,
2017, the Court screened the Complaint, dismissed all
Defendants except Deputy Warden Parker, and gave Plaintiff
leave to amend. (D.I. 8, 9). On October 12, 2017, the order
was returned as undeliverable and on October 17, 2017, the
Delaware Department provided a new address for Plaintiff.
(D.l. 10, 11). The order was remailed and Plaintiff sought,
and was given, an extension of time until December 4, 2017 to
file an amended complaint. (D.l. 12, 14). When Plaintiff
failed to timely file an amended complaint, the case was
moved for reconsideration, the case was reopened, Plaintiff
filed an amended complaint, and a service order was entered.
(D.l. 16, 17, 20). Defendant answered, and a scheduling order
was entered that provided a discovery deadline of October 5,
2018, and a dispositive motion deadline of February 5, 2019.
January 31, 2019, Defendant filed a motion to dismiss for
Plaintiffs failure to prosecute the case. (D.l. 24). On
February 27, 2019, the Court entered an order for Plaintiff
to respond to the motion on or before March 19, 2019 and
mailed it to the address on the Court docket. (D.I. 25). The
order was returned as undeliverable. (D.I. 26). On April 26,
2019, the Court was informed of Plaintiffs new address at the
HYRCI and remailed the order to Plaintiff. To date, Plaintiff
has not filed a response to the motion to dismiss.
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).
Dismissal "must be a sanction of last, nor first
resort." Poulis v. State Farm Fire & Cas.
Co., 747 F.2d 863, 869 (3d Cir. 1984).
Court should assess the following six factors to determine
whether dismissal is warranted and abuses its discretion
where it fails to properly consider and balance the factors.
Hildebrand v. Allegheny Cty., 923 F.3d 128, 132 (3d
Cir. 2019). The six factors are: (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 & Cas. Co., 747 F.2d 863, 868 (3d
Cir. 1984); see also Hildebrand v. Allegheny Cty.,
923 F.3d 128 (3d Cir. 2019); Emerson v. Thiel Coll.,
296 F.3d 184, 190 (3d Cir. 2002). The record must support the
District Court's findings on the six factors.
Poulis, 747 F.2d at 868.
Court must balance the factors and may dismiss the action
even if all of them do not weigh against Plaintiff. See
Emerson, 296 F.3d at 190. Because dismissal for failure
to prosecute involves a factual inquiry, it can be
appropriate even if some of the Poulis factors are
not satisfied. See Hicks v. Feeney, 850 F.2d 152,
156 (3d Cir. 1998); Curtis T. Bedwell & Sons, Inc. v.
International Fidelity Ins. Co., 843 F.2d 683, 696 (3d
Cir. 1988). "[C]ases should be decided on the merits
barring substantial circumstances in support of the contrary
outcome." Hildebrand, 923 F.3d at 132. If the
case is close, "doubts should be resolved in favor of
reaching a decision on the merits." Id.
moves for dismissal for failure to prosecute, noting that
Plaintiff has taken no action in this matter since January
2018, other than to seek extensions of time. Plaintiff has
not served discovery as set forth in the June 2018 scheduling