                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-13-2005

Sebrell v. Phila Pol Dept
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3440




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                                                        NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                               NO. 05-3440


                      VERNELL L. SEBRELL,
                FOR ALBERT L.M. SEBRELL (Deceased)

                                    v.

               PHILADELPHIA POLICE DEPARTMENT;
               PHILADELPHIA MEDICAL EXAMINERS
                OFFICE; PARA MEDICS; THE CITY OF
                          PHILADELPHIA

                            VERNELL L. SEBRELL,
                                        Appellant


              On appeal From the United States District Court
                 For the Eastern District of Pennsylvania
                      (E.D. Pa. Civ. No. 03-cv-4507)
               District Judge: Honorable John P. Fullam, Sr.
                       _________________________

               Submitted Under Third Circuit LAR 34.1(a)
                          December 13, 2005

      Before: BARRY, STAPLETON and GREENBERG, Circuit Judges
                      (Filed: December 13, 2005)


                                OPINION




PER CURIAM
       Vernell Sebrell appeals pro se from an order of the District Court dismissing her

lawsuit for failure to prosecute. Sebrell filed this civil rights action pursuant to 42 U.S.C.

§ 1983 in the United District Court for the Eastern District of Pennsylvania, alleging,

among other things, that detectives from the Philadelphia Police Department and Medical

Examiner’s Office conducted a faulty investigation of her son’s death in order to protect a

third party and then covered up evidence of their shoddy investigation.

       Sebrell was originally denied permission to proceed in forma pauperis in the

District Court. However, she successfully appealed that decision in this court and, on

remand, was granted leave to proceed in forma pauperis. See Sebrell v. Phila. Police

Dep’t, No. 03-3460 (3d Cir. Mar. 1, 2004). After the case was remanded, in keeping with

the procedures for in forma pauperis plaintiffs, the District Court ordered the United

States Marshals Service to serve process of the summons and complaint on the

defendants.

       On May 19, 2004, the Marshals Service wrote to Sebrell to inform her that its

attempt to effect service was unsuccessful due to flaws in the forms (known as USM-285

forms) that she had completed. See Docket #15, Ex. 1. The letter explained that although

Sebrell had listed the District Attorney Lynne Abraham as the person to receive service,

the District Attorney would not accept service because she was not named as a defendant

in the complaint. The only named defendants in Sebrell’s complaint were “Philadelphia

Police Department,” “Philadelphia Medical Examiners Office,” and “Para Medics.” The

letter further explained that the Marshals Service attempted to serve the complaint on

these three defendants at the City Solicitors Office, but that this attempt was unsuccessful
because the words “City of Philadelphia” must precede the names of each of these

defendants in the caption of the complaint. The letter expressly stated that service of the

complaint could only be made if Sebrell amended the caption to list the defendants as

“The City of Philadelphia Police Department,” “The City of Philadelphia Medical

Examiners Office,” and “The City of Philadelphia Fire Department.” Finally, the letter

advised Sebrell that, after she amended the caption in the District Court, she should

complete and return three more USM-285 forms reflecting the names of the defendants,

as modified.

         Despite these explicit instructions, Sebrell did not amend the caption. Instead, she

filed a “Motion to compel U.S. Marshals to Serve Summons to District Attorney’s office

as order states,” arguing that the Marshals failed to do their job when they refused to

serve the complaint on the District Attorney. To enable Sebrell’s suit to go forward, the

District Court construed this motion as a request to amend the caption of the complaint

and ordered that the caption be amended to name the “City of Philadelphia” as the

defendant, and that the Marshals Service serve the amended complaint on the defendants.

The record indicates that the Marshals Service contacted Sebrell on June 23, 2004,

August 18, 2004, and September 24, 2004, requesting that she complete new USM-285

forms.

         Sebrell responded by objecting to the District Court’s caption change and

reasserting her earlier argument that the complaint should be served on the District

Attorney. On January 14, 2005, the District Court entered an order giving Sebrell 30 days

in which to complete and return the forms to the Marshals Service or risk having her case
dismissed. Sebrell did not return the forms. Three months later, on April 13, 2005,

Sebrell filed a document titled “Complaint and notification of intent to appeal,” which

repeated her objection to the caption change and added an objection to the January order

as well.1 Two months passed without Sebrell returning the forms, and, on June 13, 2005,

the District Court dismissed the case for failure to prosecute. Sebrell filed a timely appeal

and has filed a brief. We review the District Court’s dismissal for failure to prosecute for

abuse of discretion. See Dunbar v. Triangle Lumber and Supply Co., 816 F.2d 126, 128

(3d Cir. 1987).

       A District Court has the authority to dismiss a suit sua sponte for failure to

prosecute by virtue of its inherent powers and pursuant to Federal Rule of Civil Procedure

41(b). Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). Such a dismissal is

deemed to be an adjudication on the merits, barring any further action between the

parties. See Landon v. Hunt, 977 F.2d 829, 833 (3d Cir. 1992); Fed. R. Civ. P. 41(b).

We have held that dismissal is a “drastic sanction” which should be reserved for cases

“where there is a clear record of delay or contumacious conduct by the plaintiff.” See

Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 342 (3d Cir. 1982).

       Ordinarily, we have required a District Court to consider and balance six factors


       1
        We note that Sebrell supports her argument against the caption change, in part,
with the assertion that “the U.S. Court of Appeals examined this case for any procedure
errors and found none.” This appears to be a reference to her earlier appeal, which dealt
solely with the question whether Sebrell was entitled to proceed in forma pauperis in the
District Court. We held that she was and remanded the case to the District Court for
further proceedings. Contrary to Sebrell’s assertion, nothing in our earlier opinion
indicates that we considered the case for procedural errors or evaluated the sufficiency of
the caption as originally filed.
enumerated in Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863 (3d Cir. 1984), when

deciding, sua sponte, to use dismissal as a sanction. See, e.g., Livera v. First Nat’l Bank

of N.J., 879 F.2d 1186, 1193-94 (3d Cir.1989); Emcasco Ins. Co. v. Sambrick, 834 F.2d

71, 73 (3d Cir. 1987). However, when a litigant’s conduct makes adjudication of the case

impossible, such balancing under Poulis is unnecessary. See Guyer v. Beard, 907 F.2d

1424, 1429-30 (3d Cir. 1990); see also Spain v. Gallegos, 26 F.3d 439, 454-55 (3d Cir.

1994) (internal citation omitted) (Poulis analysis unnecessary when plaintiff willfully

refused to prosecute her case after receiving adverse rulings). After carefully reviewing

the record, we hold that this is such a case.

       Sebrell was given ample notice that she needed to complete and return the required

forms to the Marshals Service or her suit would be dismissed. Despite her dissatisfaction

with the District Court’s order changing the caption, the District Court’s January 14,

2005, order presented Sebrell with the straightforward choice of completing the required

forms or risking dismissal. Given the simplicity of this order, Sebrell must have

understood the consequences of her decision not to comply. See Spain, 26 F.3d at 454-

55. Nevertheless, instead of complying, Sebrell chose to repeat her previous objections.

       In light of Sebrell’s persistent refusal to cooperate so that her case could move

forward, we see no alternative path that the District Court could have taken. See Guyer,

907 F.2d at 1430; Spain, 26 F.3d at 454-55. Sebrell willfully refused to comply with the

District Court’s order to complete and return the required forms. Sebrell’s pleadings

provide no indication that, had the District Court kept the case open indefinitely, Sebrell

would have completed the forms. Indeed, Sebrell persists in arguing on appeal that the
District Attorney should be served, even though the District Attorney is not named as a

defendant in the complaint. Our review of the record convinces us that the District Court

did not abuse its discretion in dismissing Sebrell’s case for failure to prosecute. See Link,

370 U.S. at 630-31. Accordingly, we will affirm the District Court’s judgment entered on

June 13, 2005.2




       2
         We decline to address Sebrell’s arguments that the District Court’s June 15, 2004,
and January 14, 2005, orders were erroneous. Indeed, to the extent that Sebrell’s refusal
to comply with the District Court’s order can be interpreted as an attempt to seek
appellate review of the court’s earlier orders, she cannot do so. See Marshall v. Sielaff,
492 F.2d 917, 919 (3d Cir. 1974) (“[i]f a litigant could refuse to proceed whenever a trial
judge ruled against him, wait for the court to enter a dismissal for failure to prosecute, and
then obtain review of the judge’s interlocutory decision, the policy against piecemeal
litigation and review would be severely weakened”).
