McKeever v. Phelps et al
MEMORANDUM. Signed by Judge Gregory M. Sleet on 2/18/16. (sar)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
WARDEN PERRY PHELPS, et al.,
Civ. No. 11-258-GMS
The plaintiff, Naquan McKeever ("McKeever"), who appears prose and was granted
permission to proceed informa pauperis, filed this lawsuit pursuant 42 U.S. C. § 1983 on March
28, 2011. The court has jurisdiction pursuant to 28 U.S.C. § 1331. Before the court are the
defendants' motion for summary judgment and motion to dismiss for failure to prosecute. (D.I.
McKeever alleges that the defendants violated his constitutional rights to freely exercise
his religion. After the defendants were served and answered the complaint, the court issued a
scheduling order that established deadlines for completing discovery (July 16, 2015) and filing
dispositive motions (September 16, 2015). (D.I. 26.) On May 7, 2015, the defendants served
McKeever with discovery. (D.I. 27.) McKeever did not respond to the discovery requests. Nor
did he seek discovery from the defendants. When McKeever was deposed on July 8, 2015, he
indicated he would respond to the discovery requests within a week from the deposition. (D.I. 34,
ex. A at 6-11.) There is no indication on the court docket that he did so.
The defendants filed a motion for summary judgment on September 16, 2015, the
dispositive motion deadline. (D.I. 33.) McKeever did not respond to the motion. On October 14,
2015, the defendants filed a motion to dismiss for failure to prosecute. (D.I. 34.) McKeever did
not respond to the motion. (D.I. 60.) Except for attending his deposition on July 8, 2015, the last
action taken by McKeever occurred on September 28, 2013, when he filed an amended complaint.
(See D.I. 23.)
Failure to Prosecute
The court turns to the issue of Mc Keever' s failure to prosecute, given that he did not
participate in the discovery process and did not respond to defendants' dispositive motions.
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.
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.
Paulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984); see also Emerson v.
Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002); Huertas v. United States Dep 't of Educ., 408 F.
App'x 639 (3d Cir. 2010) (unpublished).
The court must balance the factors and need not find that all of them weigh against the
McKeever to dismiss the action. Emerson, 296 F.3d at 190 (3d Cir. 2002). Because dismissal for
failure to prosecute involves a factual inquiry, it can be appropriate even if some of the Paulis
factors are not satisfied. Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988); Curtis T Bedwell &
Sons, Inc. v. International Fidelity Ins. Co., 843 F.2d 683, 696 (3d Cir. 1988) (holding that not all
Paulis factors must weigh in favor of dismissal).
The court finds that the Paulis factors warrant dismissal of McKeever's case. First, as a
prose litigant, McKeever is solely responsible for prosecuting his claim. See Briscoe v. Klaus,
538 F.3d 252, 258-59 (3d Cir. 2008). Second, the defendants are prejudiced by McKeever's
failure to prosecute. Prejudice occurs when a plaintiff's failure to prosecute burdens a defendant's
ability to prepare for trial. Ware v. Rodale Press, Inc., 322 F.3d 218, 222-23 (3d Cir. 2003).
McKeever's failure to participate in the discovery process severely impedes the defendant's ability
to prepare a trial strategy.
With regard to the third factor, the court notes that McKeever has acted in a dilatory
manner when he failed to participate in this case through the discovery process, failed to respond
to the motion for summary judgment, and failed to respond the motion to dismiss for want of
prosecution. This leads to the conclusion that, as to the third factor, there is a history of
As to the fourth factor, the facts to date lead to a conclusion that McKeever's failure to
prosecute is willful or in bad faith. McKeever filed this lawsuit yet failed to participate in
discovery or to respond to dispositive motions. For these reasons, the court finds McKeever's
actions willful and in bad faith.
As to the fifth factor, McKeever proceeds pro se and has been granted pauper status.
Hence, it is doubtful that monetary sanctions would be effective. Finally, as to the sixth factor,
the court takes no position on the merits of the claim given the lack of discovery.
For the above reasons, the court finds that the Paulis factors weigh in favor of dismissal.
Therefore, the court will grant the defendants' motion to dismiss for failure to prosecute.
For the above stated reasons, the court will: (1) grant the motion to dismiss for failure to
prosecute (D.I. 34); and (2) deny as moot the motion for summary judgment (D.I. 32).
An appropriate order will be entered.
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