Drumgo v. Burris et al
MEMORANDUM. Signed by Judge Gregory M. Sleet on 4/29/2016. (klc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
C/O ROOP, et al.,
) Civ. Action No. 12-068-GMS
The plaintiff DeShawn Drumgo ("Drumgo"), who proceeds pro se and was granted leave
to proceed informa pauperis, filed this lawsuit pursuant to the 42 U.S.C. § 1983.
The complaint was filed on January 24, 201. (D.I. 3.) On March 31, 2016, the court
ordered Drumgo to show cause why the case should not be dismissed, noting that Drumgo had
taken no action since September 10, 2015 when he served discovery requests on the defendants.
Drumgo responds that he is a pro se litigant in six of seven cases and is up against four
different attorneys. (D.I. 49.) He states that he served discovery upon the defendants and a
motion to compel, but the court has failed to enforce the motion to compel and order the
defendants to tum over discovery. Drumgo States that the issue of discovery has brought his
litigation to an unfair halt which benefits the defense in all of his cases, including this one which
is "absolute[ly] outrageous." (Id.) In addition, Drumgo asserts that he has a viable cause of
II. STANDARD OF LAW
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 ofPhiladelphia, 47 F.3d 1311,
1330 (3d Cir. 1995).
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.
Pou/is 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 Drumgo to dismiss the
action. 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 Pou/is factors are
not satisfied. Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1998).
The court finds that the Pou/is factors warrant dismissal ofDrumgo's case. First, as a pro
se litigant, Drumgo is solely responsible for prosecuting his claim. Hoxworth v. Blinder,
Robinson & Co., 980 F.2d 912, 920 (3d Cir. 1992). Second, the defendants are prejudiced by
Drumgo's failure to prosecute. Prejudice occurs when a plaintiffs failure to prosecute burdens
the defendant's ability to prepare for trial. Ware v. Rodale Press, Inc., 322 F.3d 218, 222-23 (3d
Cir. 2003). As to the third factor, there does not appear to be a history of dilatoriness. The court
notes, however, that Drumgo states that he filed a motion to compel in this case. The court
scoured the court docket and did not find any motion to compel filed by Drumgo. However, he
has sought discovery from defendants. (See D.I. 44, 47.) As to the fourth factor, the court takes
judicial notice that Drumgo has other cases pending in this court and has had no difficulty
prosecuting those cases. Drumgo's ability to fully prosecute other civil actions he initiated leads
to the conclusion that Drumgo's failure to prosecute is willful or in bad faith. Only Drumgo can
take steps to prosecute this case.
As to the fifth factor, there are no alternative sanctions the court could effectively impose.
Precluding Drumgo from presenting evidence at trial would have the same effect as dismissal.
For the same reason, granting summary judgment in favor of th~ defendants or forbidding
Drumgo from pursuing further discovery would have the same effect as dismissal. Finally, a
monetary sanction is ineffective inasmuch as Drumgo proceeds as a pauper. The court finds the
sixth factor, the merits of the claim, is neutral. The other four Pou/is factors, however, weigh in
favor of dismissal.
The court finds that Drumgo has failed to show cause why this case should not be
dismissed for failure to prosecute. For the above reasons, the court will dismiss the case pursuant
to D. Del. LR 41.1
An appropriate order will be entered.
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