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Hunter v. Keller

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


March 7, 2007

KENNETH W. HUNTER, PLAINTIFF
v.
CHIEF CHARLES KELLER, ET AL., DEFENDANTS

The opinion of the court was delivered by: Christopher C. Conner United States District Judge

ORDER

AND NOW, this 7th day of March, 2007, upon consideration of defendants' motion (Doc. 37) to dismiss for failure to provide complete discovery responses,*fn1 see FED. R. CIV. P. 37(a)(3) (stating that an "evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond" for purposes of assessing sanctions); Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984) (identifying six factors relevant to deciding whether to dismiss as a sanction),*fn2 and the court finding that plaintiff is personally responsible for refusing to provide complete discovery responses, see id., 747 F.2d at 868 (identifying "extent of the party's personal responsibility" as a factor); see also Divito v. C.M.S. Dep't, No. Civ. 05-0438, 2006 WL 756014, at *2 (D.N.J. Mar. 17, 2006) (stating that pro se plaintiffs bear "sole responsibility" for their failure to "comply with discovery requests"), that plaintiff's conduct has prejudiced defendants by denying them an opportunity to prepare a defense to plaintiff's claims, see id. (identifying "[p]rejudice to the adversary" as a factor); see also Nelson v. Berbanier, Civ. A. No. 1:05-CV-1490, 2006 WL 2853968, at *1 (M.D. Pa. Oct. 4, 2006), that plaintiff's prior refusal to be deposed and to provide answers to interrogatories demonstrates a history of dilatoriness,*fn3 see id. (identifying "history of dilatoriness" as a factor), that assessment of costs against plaintiff would be ineffective to deter plaintiff's conduct because plaintiff is proceeding in forma pauperis in this case (Doc. 34), see id., 747 F.2d at 869 (identifying availability of "[a]lternative sanctions" to dismissal as fifth factor); see also Divito, 2006 WL 756014, at *3, and that plaintiff's refusal to provide complete discovery responses was willful but not in bad faith,*fn4 see Poulis. (identifying "willful" or "bad faith" conduct as factors), it is hereby ORDERED that:

1. The motion (Doc. 37) to dismiss for failure to provide complete discovery responses is GRANTED.

2. The Clerk of Court is directed to CLOSE this case.

3. Any appeal from this order is DEEMED frivolous and not in good faith. See 28 U.S.C. § 1915(a)(3).


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