DLD-160                                                            NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                                         No. 09-4593
                                         ___________

                                   EDWARD SEMULKA,
                                                Appellant

                                               v.

     MULTIPLE JOHN DOE, Allenwood FCI and BOP Correctional Officers to be identified
 through discovery; MULTIPLE JANE DOE, Allenwood FCI and BOP correctional officers to be
identified through discovery; MULTIPLE JANE DOE, Allen FCI and BOP medical staff to be identified
     through discovery; MULTIPLE JANE DOE, Allenwood FCI and BOP medical staff to be
  identified through discovery; MULTIPLE JOHN DOE, Allenwood FCI and BOP administrative
    staff to be identified through discovery; MULITPLE JANE DOE, Allenwood FCI and BOP
      administrative staff to be identified through discovery; ALLENWOOD FCI MEDICAL
    DIRECTOR DR. BRADY; ALLENWOOD FCI JOHN DOE inmates; ALLENWOOD FCI
          ACTING WARDEN LARA; WARDEN JERRY MARTINEZ, Allenwood FCI;
   STATE OF PENNSYLVANIA POLICA AND EMPLOYEES; MULTIPLE JOHN DOE AND
JANE DOE EMPLOYEES; STATE OF PENNSYLVANIA ATTORNEY GENERALS OFFICE;
    MICHAEL FAGELLA, Washington County District Attorney; JOHN PETTIT, Washington
     County District Attorney; JOE DOE AND JANE DOE WASHINGTON COUNTY AND
      CANONSBURG BOROUGH PENNSYLVANIA EMPLOYEES, DETECTIVES AND
     POLICE; ASSISTANT MIKE FURMAN; CCA CORRECTIONAL FACILITY IN OHIO
     WHERE PLANTIFF WAS FIRST DESIGNATED; FEDERAL BUREAU OF PRISONS
                            ____________________________________

                      On Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                               (D.C. Civil No. 09-cv-01718)
                        District Judge: Honorable Sylvia H. Rambo
                       ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    March 25, 2010

             Before: FUENTES, JORDAN and HARDIMAN, Circuit Judges
                              (Opinion filed April 8, 2010 )

                                        _________

                                        OPINION
                                        _________

PER CURIAM

       Appellant Edward Semulka appeals pro se from a District Court order dismissing

his complaint for failure to prosecute under Fed. R. Civ. P. 41(b). For the following

reasons, we will summarily vacate the District Court’s order and remand for further

proceedings.

                                            I.

       On August 26, 2009, Semulka initiated this action by filing a complaint and a

motion to proceed in forma pauperis (“IFP”) in the Middle District of Pennsylvania. The

District Court ordered that before it would rule on the IFP motion, Semulka must file an

amended complaint in compliance with Federal Rule of Civil Procedure 8(a). Semulka

requested, and was granted, two separate extensions of time to file an amended complaint.

Semulka did not amend his complaint by the extended deadline of November 16, 2009.

On December 3, 2009, the District Court deemed the action abandoned and dismissed the

complaint pursuant to Fed. R. Civ. P. 41(b) for failure to comply with a court order.

Semulka filed a timely notice of appeal from that order.

                                          II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review

the District Court’s dismissal for abuse of discretion. Guyer v. Beard, 907 F.2d 1424,
1429 (3d Cir. 1990). We may take summary action if the appeal presents no substantial

question. 3d Cir. LAR 24.7; I.O.P. 10.6.

                                              III.

       The District Court erred by failing to rule on Semulka’s IFP motion before

proceeding to the complaint. There is a two-step process in evaluating motions to

proceed IFP under 28 U.S.C. § 1915. “First, the district court evaluates a litigant’s

financial status and determines whether (s)he is eligible to proceed in forma pauperis

under § 1915(a). Second, the court assesses the complaint under § 1915(d) to determine

whether it is frivolous.” Roman v. Jeffes, 904 F.3d 192, 194 n.1 (3d Cir. 1990); see also

Deutsch v. United States, 67 F.3d 1080, 1085 n.5 (3d Cir. 1995) (holding that the decision

of whether to grant IFP should precede dismissal of a complaint). Thus, the District

Court should have addressed Semulka’s IFP motion in the first instance instead of

holding it in abeyance pending amendment of the complaint.

       The District Court also erred in dismissing Semulka’s complaint sua sponte

without addressing the factors set forth in Poulis v. State Farm Fire and Casualty Co., 747

F.2d 863, 868 (3d Cir.1984). Under Federal Rule of Civil Procedure 41(b), a district

court may dismiss an action sua sponte if a litigant fails to prosecute his case or to comply

with a court order. Fed. R. Civ. P. 41(b); see also Link v. Wabash R.R. Co., 370 U.S.

626, 630-31 (1962). Before doing so, however, courts are required to consider all six of

the Poulis factors: “(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 or the attorney was

willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which

entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or

defense.” 747 F.2d at 868. We have repeatedly emphasized that sua sponte dismissal is

“extreme” and therefore “must be a sanction of last, not first, resort.” Poulis, 747 F.2d at

867-69; United States v. $8,221,877.16 in U.S. Currency, 330 F.3d 141, 161 (3d Cir.

2003) (“We have opined that [the Poulis factors] must be weighed by a district court in

determining whether the harsh sanction of dismissal is justified”). Only in the rarest of

circumstances, those demonstrating the most “contumacious” of conduct, may a district

court dispense with the Poulis factors altogether. Guyer, 907 F.2d at 1429-30; see also

Spain v. Gallegos, 26 F.3d 439, 454-55 (3d Cir. 1994).

       Here, the District Court dismissed Semulka’s complaint without balancing any of

the Poulis factors or considering whether a lesser sanction would better serve the interests

of justice. See Guyer, 907 F.2d at 1429-30. Nor did the court offer Semulka an

opportunity to justify his inaction. See Ali v. Sims, 788 F.3d 954, 958 (3d Cir. 1986)

(holding that the District Court’s statement that a party had “brazenly ignored” its order

was insufficient to justify dismissal).

       Accordingly, we will summarily vacate the District Court's December 3, 2009,

order and remand the case for further proceedings consistent with this opinion.
