Shaw v. Morgan et al
MEMORANDUM ORDER - denying re 60 MOTION to Dismiss for Lack of Prosecution - Signed by Judge Gregory M. Sleet on 7/5/12. (rwc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MAJOR PARKER and C/0 LEVAN,
) Civ. Action No. 08-421-GMS
At Wilmington this
5r"'day of<--J l ,2012;
IT IS ORDERED that the plaintiff has shown cause for his failure to prosecute and the
defendants's motion to dismiss for failure to prosecute (D.I. 60) is denied, for the reasons that
The plaintiff, Daniel Shaw ("Shaw"), a former inmate at the Howard R. Young
Correctional Center, Wilmington, Delaware filed this lawsuit pursuant to 42 U.S.C. § 1983
alleging violations of his constitutional rights. He proceeds pro se and has been granted leave to
proceed without prepayment of fees.
On December 27, 2011, the court ruled on all pending motions, granted the defendants'
partial summary judgment and ordered Shaw to show cause by January 27, 2012, why the case
should not be dismissed for his failure to participate in the litigation since November 4, 2010.
(D.I. 56, 57.) Shaw responded on January 26,2012, that he had taken no action because he had
not heard from the court or the defendants since his last filed motion and was under the
impression that he would be notified by the court "of his next motion." In addition, Shaw was
aware that the court had a back log due to the absence of judges. (D.I. 59.) In turn, the
defendants filed an opposition to Shaw's compliance with the show cause order and, further,
move to dismiss for failure to prosecute. (D.I. 60.) Shaw opposes the motion.
When a plaintiff fails to prosecute or comply with a court order, the Court may dismiss
the action, with prejudice, under Rule 41(b). See Link v. Wabash R.R. Co., 370 U.S. 626, 629
(1962); Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984) (identifying six
factors that are appropriate to consider before dismissing a case for the plaintiffs late filing of a
pretrial statement: (1) the extent ofthe 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 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.)
In the instant case Shaw proceeds pro se. Shaw has provided an adequate reason for his
failure to take any action in the case. Having weighed the Poulis factors the court finds they do
not weight in favor of dismissal. See also Emerson v. Thiel Col!., 296 F .3d 184, 190 (3d Cir.
For the above reasons, the court denies the defendants' motion to dismiss (D.I. 60) and
finds that Shaw has shown cause for his failure to pr
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