Gillis v. Pierce
MEMORANDUM OPINION Signed by Judge Sue L. Robinson on 3/2/2017. (lmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
WARDEN DAVID PIERCE,
) Civ. No. 15-1156-SLR
Vurnis Gillis, James T. Vaughn Correctional Center, Smyrna, Delaware. Pro Se Plaintiff.
Joseph Clement Handlon, Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for Defendant.
Dated: March J... , 2017
Plaintiff Vurnis Gillis ("plaintiff"), an inmate at the James T. Vaughn Correctional
Center, Smyrna, Delaware, proceeds pro se and was granted leave to proceed in forma
pauperis. He filed this civil action on December 16, 2015. (D.I. 3) The court has
jurisdiction pursuant to 28 U.S.C. § 1331. Before the court are defendant's motion for
summary judgment and motion to dismiss for failure to prosecute. (D.I. 11, 13) The
court will grant the motion to dismiss for failure to prosecute and will deny as moot the
motion for summary judgment.
Plaintiff alleges that defendant implemented a policy that denies plaintiff the right
to practice his religion. On August 10, 2016, defendant filed a motion for summary
judgment. (D.I. 11) On December 12, 2016, defendant filed a motion to dismiss for lack
of prosecution. (D.I. 13) In turn, plaintiff filed a request for counsel. (D.I. 14) On
January 19, 2017, the court denied the request for counsel and set a February 28, 2017
deadline for plaintiff to respond to defendant's motion for summary judgment and motion
to dismiss for lack of prosecution. (D.I. 16) To date, plaintiff has not filed a response to
Ill. FAILURE TO PROSECUTE
The court turns to the issue of plaintiff's failure to prosecute. Other than filing a
request for counsel on December 21, 2016 (see D.I. 14), plaintiff has taken no action
since January 11, 2016, when he filed an affidavit in support of his first request for
counsel (see D.I. 7). Plaintiff did not file responses to the motion for summary judgment
or the motion to dismiss. 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. 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 Gas. 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)
The court must balance the factors and need not find that all of them weigh
against plaintiff 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 Pou/is 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 Pou/is factors must weigh in
favor of dismissal).
The court finds that the Pou/is factors warrant dismissal of plaintiffs case. First,
as a prose litigant, plaintiff is solely responsible for prosecuting his claim. Hoxworth v.
Blinder, Robinson & Co., 980 F.2d 912, 920 (3d Cir. 1992). Second, defendant is
prejudiced by plaintiff'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). Plaintiff's failure to take any action impedes
defendant's ability to prepare a trial strategy or otherwise resolve the dispute.
With regard to the third factor, the court notes that plaintiff has failed to respond
to the dispositive motions filed by defendant. This leads to the conclusion that, as to the
third factor, there is a history of dilatoriness. As to the fourth factor, the facts to date
lead to a conclusion that plaintiffs failure to prosecute is willful or in bad faith. Plaintiff
filed this lawsuit yet failed to respond to motions seeking to terminate his case. For
these reasons, the court finds plaintiffs actions willful or in bad faith.
As to the fifth factor, plaintiff 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
For the above reasons, the court finds that the Pou/is factors weigh in favor of
dismissal. Therefore, the court will grant defendant's motion to dismiss for failure to
For the above reasons, the court will grant defendant's motion to dismiss for
failure to prosecute and will deny as moot the motion for summary judgment. (0.1. 11,
An appropriate order will issue.
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