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Bruce v. Miller

United States District Court, S.D. West Virginia, Huntington Division

November 20, 2017

JIMMY BRUCE, Plaintiff,
v.
RONALD MILLER, individually in his capacity as a Deputy employed by the Cabell County Sheriff's Department, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. CHAMBER UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Defendant's Motion to Dismiss for Failure to Prosecute (ECF No. 26). For reasons specified herein, Defendant's Motion to Dismiss is GRANTED and Defendant's Motion for Summary Judgment (ECF No. 21) is DENIED as moot.

         I. Background

         Plaintiff, represented by counsel, filed a Complaint with this Court on March 9, 2017 (ECF No. 1). On June 22, 2017, however, Plaintiff's counsel Robert Frank filed a Motion to Withdraw, citing a potential conflict of interest (ECF No. 15). The Court ordered Plaintiff to advise the Court, in writing, whether he objected to Frank's withdrawal (ECF No. 16), but Plaintiff never responded to the Court's Order. The Court subsequently granted Frank's motion on July 12, 2017 (ECF No. 18), leaving Plaintiff without representation. Plaintiff has not retained new representation since that time. On August 30, 2017, the Court entered an Order Confirming Plaintiff's Pro Se Status in which it confirmed that Plaintiff would be proceeding in this matter without representation and instructed Plaintiff that he would nevertheless be obligated to respond to dispositive motions and abide by court procedures moving forward (ECF No. 20). In the Order, the Court noted that failure to abide by relevant rules and procedures would result in dismissal of Plaintiff's case (ECF No. 20). Since that time, Plaintiff has failed to respond to Defendant's Motion for Summary Judgment (ECF No. 21), Defendant's Request for Deposition (ECF No. 24), and Defendant's Motion to Dismiss for Failure to Prosecute (ECF No. 26).

         II. Analysis

         If a plaintiff fails to prosecute his case or to comply with the Federal Rules of Civil Procedure or other court order, “a defendant may move to dismiss the action or any claim against it.” Fed.R.Civ.P. 41(b). “The authority of a federal trial court to dismiss a plaintiff's action with prejudice because of his failure to prosecute cannot seriously be doubted.” Link v. Wabash R. Co., 370 U.S. 626, 629 (1962). Before dismissing a case for failure to prosecute, however, the Court must consider four factors: “(1) the plaintiff's degree of personal responsibility; (2) the amount of prejudice caused the defendant; (3) the presence of a drawn out history of deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than dismissal.” Hillig v. C.I.R., 916 F.2d 171, 174 (4th Cir. 1990).

         The application of these factors is different in a case where the Court has provided an “explicit and clear” warning that failure to comply with court directives and orders will result in dismissal. Bailey v. Edwards, 573 Fed.Appx. 268, 269 (4th Cir. 2014) (unpublished opinion). Though the factors should still be used for guidance in such an instance, their application should be less “rigid” and the court should focus more, instead, on the particular circumstances of the case at hand. Id.

         In this case, the Court unequivocally warned Plaintiff by Court Order that failure to prosecute his case would result in dismissal (ECF No. 20). In its August Order, the Court told Plaintiff that failure to respond to dispositive motions and failure to comply with other deadlines and procedures set out by order of the Court would subject his case to dismissal for failure to prosecute (ECF No. 20). Accordingly, the Court will look to the Hillig factors only for guidance.

         a. Fault of Plaintiff

         First, in considering Plaintiff's responsibility for the present failure to prosecute, the Court notes that Plaintiff has been unrepresented in this matter since July 12, 2017. While it is true that dismissal is appropriate only in the “most egregious cases” when used to punish attorney misbehavior, Doyle v. Murray, 938 F.2d 33, 34 (4th Cir. 1991), attorney misconduct is not at issue in this case. The threshold for dismissal is lower in the case of a party's personal failures. See Vinson v. Scites, 854 F.2d 1318, at *1 (4th Cir. 1988) (table opinion). “Where a pro se litigant has shown a record of continual disregard for the court and attempted to delay proceedings, dismissal is appropriate.” Id. In this case, there is no attorney misbehavior at issue. The delays and failures to respond have been entirely the fault of Plaintiff. Accordingly, this factor weighs in favor of dismissal.

         b. Prejudice to Defendant

         Second, the Court finds that Plaintiff's failure to prosecute his case has and continues to prejudice Defendant. The window for discovery closed on August 1, 2017 and the deadline for depositions passed on September 15, 2017. Despite making several attempts to contact Plaintiff to schedule Plaintiff's deposition, Defendant was unable to depose Plaintiff within the prescribed deadline. Plaintiff's failure to respond and meaningfully participate in his case has prevented Defendant's access to meaningful discovery and has thereby prejudiced Defendant in his efforts to move his own defense forward. This factor, too, weighs in favor of dismissal.

         c. Persistence of Failure to Prosecute

         In cases where there is only one instance of dilatory behavior, courts are generally unwilling to dismiss for failure to prosecute. See Bailey, 573 Fed.Appx. at 269 (vacating dismissal for failure to prosecute where the plaintiff had failed to meet the deadline to return a form or to pay the statutory filing fee); Fisher v. Snowden, 439 Fed.Appx. 206, 207 (4th Cir. 2011) (unpublished opinion) (vacating dismissal where the record was unclear whether plaintiff had timely filed a change of address notification with the court); Vinson, 854 F.2d at *1 (finding ...


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