I now apply these factors to the circumstances of this case.
1. The extent of the party's personal responsibility.
The claimant in this action has been incarcerated at Allenwood Prison Camp during this litigation, and has not had the assistance of counsel. But because he proceeding pro se, he alone must take responsibility for failures to progress his case.
The principle is well established that a pro se litigant is not held to the same standards of pleading as a litigant represented by counsel. See e.g., Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972), Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976) and Hughes v. Rowe, 449 U.S. 5, 101 S. Ct. 173, 66 L. Ed. 2d 163 (1980).
As more fully discussed under factor number 3, "a history of dilatoriness", claimant has been given extraordinary extensions of the deadlines for providing the required discovery.
2. Prejudice to the adversary.
I have reviewed the plaintiff's Interrogatories and First Request for Production of Documents. I find that they are reasonable requests, and that the information requested is essential to determining whether the claimant has a valid claim to the defendant property. There is no way to progress this action without the requested information, or a substantial part of it. Claimant has provided none.
3. A history of dilatoriness.
Claimant has been granted two extensions of time to respond to the discovery requests. The first, on July 13, 1989, granted him twenty days. The second, on September 1, 1989, granted him thirty days, in addition to the time that had already elapsed. He has had since March 16, 1989 to gather the material necessary to respond. He has had over 170 days since April 12, 1989, when he claimed he needed sixty days and over 130 days from May 24, 1989, when he renewed his request for an additional sixty days.
4. Whether the conduct was wilful or in bad faith.
Claimant has argued that, because of his circumstances, the answers which he would be able to give would necessarily be incomplete. That may be true, but it does not excuse failure to respond. My review of the Interrogatories reveals that much of the information requested is such that the plaintiff should be able to answer in substance, even if some specifics would require approximation. Some of the most important documentation could have been obtained through the authorizations for release of information requested by the plaintiff or through the assistance of this court's subpoena powers. None of it can be obtained without the claimant's cooperation. In the memorandum attached to my order of September 1, 1989, I noted that, if the claimant were unable to gather the material necessary to fully answer any particular interrogatory or produce any particular document, he could respond to the best of his knowledge and belief, noting the specific areas of uncertainty or unavailability. Under the circumstances, his failure to provide any of the requested information or documentation, or the requested authorizations for release of information, must be taken as wilful.
5. The effectiveness of sanctions other than dismissal.
As noted above, the requested discovery is essential to determination of the claimant's claim. Because of his pro se status claimant has been granted extraordinary extensions of time and also, as noted in the "Background" part of this memorandum, extraordinary latitude procedurally. In my order of September 1, 1989 he was warned of the consequences of failure to respond, and invited to give incomplete responses if necessary. If the threat of dismissal has not produced a response, it is hard to imagine any other sanction which would have been effective.
6. The meritoriousness of the claim or defense.
The defendant property was seized on January 3, 1986, during a search pursuant to a warrant at the claimant's home. Claimant was subsequently charged with and convicted of possession with intent to distribute of 383.7 grams of cocaine and 151 grams of methamphetamine on that date. It is that conviction which forms the basis for the forfeiture of the defendant property. Claimant contends that $ 25,000 of the defendant property was the proceeds of a loan made by his mother on December 21, 1985 and that the balance was proceeds from his legitimate business activity.
Claimant has refused to document his contention, or to provide information and authorizations by which such documentation, if it exists, could be obtained. Consequently this court has been frustrated in its efforts to determine whether claimant's contention has any merit.
In summary, claimant has been given the full measure of latitude to which a pro se litigant is entitled in this court. He has failed, or refused, to provide any information or documentation on which this court could base a judgment in his favor. Such information and documentation cannot be obtained without the cooperation of the claimant. Consequently this court has no alternative but to dismiss the claim of claimant John Henry Townley.
An appropriate order follows.
AND NOW, this 4th day of October, 1989, upon consideration of the record in this matter, and for the reasons set forth in the attached Memorandum, IT IS ORDERED that judgment is entered in favor of plaintiff United States of America and against claimant John Henry Townley in the amount of $ 27,820.00 and the defendant currency is forfeited to the United States of America and shall be disposed of in accordance with existing law, together with costs.
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