                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-19-2008

Hernandez v. Palackovich
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2060




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                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                      No. 06-2060
                                      ___________

                               CLAUDIO HERNANDEZ,

                                                       Appellant


                                             v.


     JOHN A. PALAKOVICH, Superintendent; SCI-SMITHFIELD MEDICAL
   DEPARTMENT; DR. RONALD LONG, M.D.; GEORGE WEAVER, Health Care
        Adm.; HOLY SPIRIT HOSPITAL; JOHN DOE, Doctor/Surgeon;
                DEPUTY SUPERINTENDENT KORMANIC

                                      ___________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                    (No. 05-cv-01655)
                         District Judge: Honorable Yvette Kane
                                      ___________

                                Argued January 14, 2008

          Before: FUENTES, JORDAN, Circuit Judges, and RUFE,* District Judge.

                              (Filed: September 19, 2008)

Enrique Armijo (Argued)
Covington & Burling


      *
         Honorable Cynthia M. Rufe, District Judge for the United States District Court
for the Eastern District of Pennsylvania, sitting by designation.
1201 Pennsylvania Avenue, N.W.
Washington, DC 20004

      Counsel for Appellant

William E. Fairall, Jr. (Argued)
Pennsylvania Department of Corrections
Office of Chief Counsel
55 Utley Drive
P.O. Box 598
Camp Hill, PA 17011

      Counsel for Appellees John A. Palakovich, George Weaver and Deputy
            Superintendent Kormanic

Kathryn M. Kenyon (Argued)
Bryan K. Shreckengost
Pietragallo, Bosick & Gordon
301 Grant Street
One Oxford Centre, 38 th Floor
Pittsburgh, PA 15219

      Counsel for Appellee Dr. Ronald Long, M.D.

Aaron S. Jayman (Argued)
Thomas M. Chairs
Dickie, McCamey & Chilcote
1200 Camp Hill Bypass
Suite 205
Camp Hill, PA 17011

      Counsel for Appellee Holy Spirit Hospital


                                 OPINION OF THE COURT


FUENTES, Circuit Judge.

      Claudio Hernandez, a partially blind prisoner in Pennsylvania, filed a pro se §

                                            2
1983 complaint against several correctional facility officials, medical personnel and Holy

Spirit Hospital alleging that the defendants violated his constitutional rights under the

Eight Amendment by knowingly mistreating an eye condition and refusing to perform a

recommended surgery that could have saved his sight. When Hernandez failed to respond

to the Defendants’ motions to dismiss for failure to state a claim, the District Court

dismissed Hernandez’s pro se complaint under Federal Rule of Civil Procedure 41(b) for

failure to comply with a court order. We conclude that because the District Court

regarded Hernandez’s failure to oppose the Defendants’ motions to dismiss as a violation

of Federal Rule of Civil Procedure 41(b), and accordingly dismissed his complaint, it

could not do so without evaluating the balancing factors set forth in Poulis v. State Farm

Fire & Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984).1 Failure to do so was an abuse of

discretion. Accordingly, we will vacate the District Court’s judgment and remand for

further proceedings consistent with this opinion.2

                                              I.

       Hernandez is incarcerated at the State Correctional Institution Smithfield (“SCI-



       1
         In Poulis we set forth six factors that district courts must balance in dismissing an
action for failure to prosecute. 747 F.2d at 868. As we discuss in further detail below,
the factors examine, among others, the culpability and bad faith of the defaulting party,
prejudice to the non-defaulting party and the meritoriousness of claims or defenses.
       2
         We pause to express our appreciation to pro bono counsel on appeal, Mr. Enrique
Armijo of Covington & Burling, who has provided excellent legal representation. Our
outcome is due, in no small measure, to Mr. Armijo’s commitment of time and effort and
his professionalism on behalf of his client.

                                              3
Smithfield”) in Huntingdon, Pennsylvania. In March 2004, pursuant to the referral of an

SCI-Smithfield physician, Dr. Ronald Long, the prison sent Hernandez to Holy Spirit

Hospital in Harrisburg, Pennsylvania for a routine cataract surgery on his left eye that was

performed by an unknown surgeon.3 The eye did not heal properly and Hernandez had a

number of follow-up visits where several different types of eye drops were applied to the

affected eye, proving futile. During his last visit at Holy Spirit, a specialist informed

Hernandez that his left eye was losing coloration, would become smaller than the other

eye, was no longer useful and would have to be removed. Hernandez was then referred to

another specialist who prescribed a special set of glasses to protect his then healthy right

eye. In his notice of appeal, Hernandez asserts that these special glasses were never

provided to him. The facts concerning these glasses were not developed in the District

Court.

         Six months after his appointment with the specialist, Hernandez was taken to Blair

County Hospital (“Blair County”) with an eye infection. Dr. John Batissan, a physician at

Blair County, prescribed penicillin for the infection and informed Hernandez that his left

eye needed to be removed. In the following months, Hernandez was prescribed another

type of eye drops by an unknown doctor and was also seen by a different Blair County

physician, Dr. John Schietroma, who recommended surgery to remove only the lens and


         3
        For the purposes of this appeal, we take the allegations of the complaint as true,
but we emphasize that they are only allegations. Nothing in our discussion of the factual
background of the case should be understood as intimating any conclusion about the
accuracy of the allegations or the merits of the case.

                                              4
pupil of the left eye, which might have saved his vision if performed timely. Before the

surgery could take place, SCI-Smithfield officials asked Hernandez to sign a waiver of

liability. Hernandez refused to sign the form without being provided counsel to review

the form and, therefore, the SCI-Smithfield officials refused to permit the surgery. The

facility officials concede that this surgery never occurred, but cite Hernandez’s failure to

sign the waiver of liability as justification. Hernandez has since completely lost his

eyesight in his left eye, and his vision in his right eye has begun to deteriorate.

       In August 2005, after exhausting his administrative remedies, Hernandez brought a

pro se claim under 42 U.S.C. § 1983 against several correctional facility officials,

Superintendent John Palakovich, Deputy Superintendent Victoria Kormanic, and Health

Care Administrator George Weaver; the SCI-Smithfield contract doctor, Ronald Long;

the SCI-Smithfield medical department; Holy Spirit Hospital; and an unidentified

physician from Holy Spirit Hospital (collectively, the “Defendants”). He alleged that the

Defendants violated the cruel and unusual punishment clause of the Eighth Amendment

by knowingly mistreating his eye condition and refusing to perform a recommended

surgery that could have saved his eyesight. He also asserted claims of medical

malpractice, negligence and intentional infliction of emotional distress under state tort

law. Hernandez sought compensatory and punitive damages as relief. At the time the

complaint was filed, Hernandez received a copy of the District Court’s Standing Practice

Order, which informs pro se litigants of their responsibilities, including the time limits for



                                               5
motions and briefs pursuant to the Local Rules.

       Hernandez accompanied his complaint with a motion for appointment of counsel,

stating that he is a Hispanic male with limited English skills and “without legal

knowledge to represent himself.” (App. 37.) The motion also stated that the petition and

“civil action” had not been prepared by Hernandez, but rather by another inmate, and that

assistance beyond this petition would not be provided. (App. 37.) In December 2005, the

Defendants filed separate motions to dismiss the complaint under Rule 12(b)(6). On

December 12 and 14, 2005,4 Hernandez moved for an extension of time to respond to the

Defendants’ motions to dismiss, asserting his limited understanding of English and

limited access to the institutional law library. The motion for an extension of time also

noted that the District Court had not ruled on the motion for appointment of counsel, and

attached a letter from a “concerned inmate” stating that he was helping Hernandez

because of his lack of understanding of English, but he would not be able to provide

further assistance to Hernandez due to his fear of sanctions by prison officials. (App. 57.)

       On January 17, 2006, the District Court granted Hernandez’s motion for extension

until February 10, 2006 but did not rule on his motion for appointment of counsel. In a

separate order on January 20, 2006, the District Court denied the first motion for

appointment of counsel, finding that Hernandez had not demonstrated that he was

incapable of presenting comprehensible arguments and that the general rule of liberal


       4
        The record reflects that Hernandez filed two identical motions for extension of
time two days apart but served each one to selective defendants.

                                             6
construction of pro se pleadings went against appointment. The District Court noted that

“[i]n the event, however, that future proceedings demonstrate the need for counsel, the

matter may be reconsidered either sua sponte or upon a motion properly filed by

[Hernandez].” 5 (App. 65.)

       On January 31, 2006, Phillip Quinn, a prisoner at SCI-Smithfield, filed a separate

letter, identifying himself as the individual who had filed the complaint on behalf of

Hernandez. Quinn stated that Hernandez was not “the person answering and filing the

petitions that are brought before [the District Court] and that [he was] the person who

filed the petition for Hernandez.” (App 67.) In his letter, Quinn requested appointment

of counsel stating that Hernandez was unable to speak or understand English well and

could not respond due to blindness in one eye and diminishing eyesight in the other.

Quinn also noted that he had responded and answered all of the court’s notices but that he

could not do so any longer due to disciplinary reprimands. He further stated that, without

assistance, Hernandez would not be able to meet the February 10, 2006 deadline.

       On February 28, 2006, the District Court granted the Defendants’ motions to

dismiss, without addressing the merits of Hernandez’s complaint. The District Court

noted that Hernandez failed to file an opposing brief within the allotted time and failed to

request an extension of time. Based on Stackhouse v. Mazurkiewicz, 951 F.2d 29 (3d



       5
         In the event Mr. Armijo is unable to continue representation of Hernandez, we
recommend that Hernandez file a new motion for appointment of counsel which the
District Court should review pursuant to Tabron v. Grace, 6 F.3d 147, 156 (3d Cir. 1993).

                                             7
Cir. 1991), the District Court found that Hernandez had received adequate warnings of

the sanction of dismissal for failure to file an opposing brief and failed to do so. Relying

on one of its local rules of practice, the District Court “grant[ed] the Defendants’

unopposed motions to dismiss . . . without a merits analysis” and dismissed the complaint

without prejudice “for failure to comply with a Court Order.” (App. 24.) The District

Court then directed the clerk of court to “close th[e] case.” (App. 24-25.) Hernandez

filed a timely notice of appeal and we subsequently appointed counsel.6 On November 6,

2006, this Court, sua sponte, ordered the parties to address “whether this Court may

affirm the District Court’s order entered February 28, 2006, although the District Court

did not address the factors set forth in Poulis v. State Farm Fire Casualty Co., 747 F.2d

868 (3d Cir. 1984).” 11/2/06 Order, Hernandez v. Palackovich, et al., No. 06-2060 (3d

Cir. Nov. 2, 2006).

                                              II.

       On appeal, Hernandez argues that, under the circumstances of this case, the

District Court erred in treating the Defendants’ motions to dismiss as if they were

unopposed and dismissing the case. We agree.

       In its order dismissing the case, the District Court explicitly stated that it had not

analyzed whether the complaint stated a claim. Instead, the Court pointed out that

Hernandez had not filed briefs in opposition to the Defendants’ motions to dismiss before


       6
        The District Court had subject matter jurisdiction over this action pursuant to 28
U.S.C. § 1331. We have appellate jurisdiction under 28 U.S.C. § 1291.

                                               8
the deadline set forth in the Court’s order granting Hernandez’s motion for an extension

of time. Thus, it is clear that the District Court dismissed Hernandez’s complaint as a

sanction for failure to follow a court order, not for failure to state a claim.7 Before

dismissing a case as a sanction for failure to follow a court order, however, courts are

required to consider the factors set forth in Poulis v. State Farm Fire and Casualty Co.,

747 F.2d 863 (3d Cir.1984):

       (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.

Id. at 868 (emphases omitted).8


       7
         The District Court’s dismissal order cited Federal Rule of Civil Procedure 41(b),
which states that a court may dismiss an action upon the motion of a defendant if the
plaintiff fails to prosecute or to comply with the Federal Rules of Civil Procedure or a
court order. Fed. R. Civ. P. 41(b). Although the Defendants did not move to have the
case dismissed under Rule 41(b), the District Court had inherent power to dismiss the
case sua sponte for failure to follow its orders. Link v. Wabash R.R. Co., 370 U.S. 626,
630-31 (1962); Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992).
       8
          We note that Poulis involved dismissal of a suit with prejudice, 747 F.2d at 865,
while the District Court in this case expressly stated that the dismissal of Hernandez’s
complaint was without prejudice. (App. 24.) However, given that the acts and omissions
at issue allegedly took place in late 2004 and January 2005 (App. 29), and given that the
applicable statute of limitations is two years for a § 1983 suit alleging personal injuries in
Pennsylvania, Lake v. Arnold, 232 F.3d 360, 368 (3d Cir. 2000); 42 Pa.C.S.A. § 5542, it
is clear that the effect of the District Court’s order at this point is likely to be the same as
a dismissal with prejudice, since Hernandez will—in the absence of equitable tolling—be
prevented from filing his case again if the District Court’s order is upheld. Consequently,
we need not and do not opine on whether a Poulis analysis is required whenever a
complaint is dismissed without prejudice. It is sufficient to note that it is required here,

                                               9
       While not all of the factors need to weigh against a plaintiff to warrant dismissal,

Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988), the District Court must still address

each of the factors. United States v. $8,221,877.16 in U.S. Currency, 330 F.3d 141, 162

(3d Cir. 2003) (“[W]e have always required consideration and balancing of all six of the

factors ... .”). This Court’s role on appeal is limited to making sure that the District Court

properly balanced the Poulis factors and that the record supports its findings. See Livera

v. First Nat’l State Bank of N.J., 879 F.2d 1186, 1194 (3d Cir. 1989). Consequently, we

have held that the failure of a district court to consider the Poulis factors prior to

dismissing a claim constitutes an abuse of discretion, requiring a remand. Id. (“[T]he

district court simply did not undertake any Poulis balancing . . . [and] we do not undertake

this task here as it would require factual findings not within the parameters of our

review.”). Here, the District Court dismissed the case for failing to file a responsive brief

prior to the deadline set by the Court—in other words, it dismissed the case as a sanction

for failure to prosecute—but did not analyze the Poulis factors. The dismissal was



where a pro se litigant’s right to bring suit may well be irretrievably lost if the dismissal
stands. Cf. Wynder v. McMahon, 360 F.3d 73, 76 (2d Cir. 2004) (“Although the
dismissal was, strictly speaking, ‘without prejudice,’ if affirmed it would likely prove
fatal to Wynder's claims: as ... the statute of limitations has run on most, if not all, of his
various causes of action. Under the circumstances, then, Wynder's ability to seek
vindication in federal court on these claims depends on whether or not we reinstate his
complaint.”); Wright & Miller, Federal Practice & Procedure: Civil 3d § 2369, at 603-08
(Reviewing law on dismissals under Federal Rule of Civil Procedure 41(b) and noting
that “Appellate courts may be equally scrutinizing when the district court dismisses a case
‘without prejudice’ but the dismissal, due to the operation of the applicable statute of
limitations, has the effect of a dismissal with prejudice.”).

                                               10
therefore improper.9

       In so holding, we reject the Defendants’ argument that the District Court’s

dismissal was permissible under Middle District of Pennsylvania Rule 7.6, which states

that the court will treat as unopposed any motion that is not responded to before the filing

deadline. We rejected the same argument in Stackhouse v. Mazurkiewicz, 951 F.2d 29

(3d Cir. 1991), in which we reversed a dismissal that was imposed solely on the basis that

the plaintiff violated a local rule requiring parties to respond to motions to dismiss. We

reasoned in that case that “if a motion to dismiss is granted solely because it has not been

opposed, the case is simply not being dismissed because the complaint has failed to state

a claim upon which relief may be granted. Rather, it is dismissed as a sanction for failure

to comply with the local court rule.” Id. at 30.

       The Defendants nevertheless latch on to language from Stackhouse that suggests

that a district court might properly invoke a local rule and treat a motion to dismiss as

unopposed when “a party fails to comply with the rule after a specific direction to comply

from the court.” Id. The Defendants argue that the District Court’s order granting



       9
         We do not mean to suggest that the District Court could not have dismissed the
complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim; on
that point we intimate no opinion at all. Cf. Anchorage Assocs. v. V.I. Bd. of Tax
Review, 922 F.2d 168, 178 (3d Cir. 1990) (“We have never held . . . that consideration of
Poulis type factors is required before a court enters a summary judgment on an
uncontested Rule 56 motion . . . .”). But the District Court did not dismiss for failure to
state a claim and, indeed, expressly stated that its dismissal was not based upon the merits
of the complaint. (App. 24 (“[T]he Court will grant the Defendants’ unopposed motions
to dismiss . . . without a merits analysis . . . .”).)

                                             11
Hernandez’s motion for an extension of time, which directed him to file a responsive

brief on or before February 10, 2006, combined with the Court’s notifying Hernandez of

the requirements of the local rules at the time he filed his complaint, together, constitute a

“specific direction to comply” with the filing requirements set forth in Local Rule 7.6.

Thus, say the Defendants, the Court acted within its discretion to dismiss the case when

Hernandez failed to file a responsive brief by February 10, 2006.

       The argument is flawed. As an initial matter, the Defendants’ characterization of

the District Court’s actions in this case as a “specific direction to comply” with the

District Court’s local rule is questionable. More importantly, though, we decline to adopt

an interpretation of Stackhouse under which a district court may dismiss a case solely

because a plaintiff misses a briefing deadline set forth in a local rule or court-ordered

briefing schedule. A history of dilatoriness is one of the Poulis factors, but there are five

other factors. Poulis, 747 F.2d at 868. Stackhouse cannot stand for the proposition that a

district court may dismiss a case without considering the Poulis factors whenever a

plaintiff fails to comply with a briefing deadline; if that were the import of Stackhouse, it

would contradict our clear precedent requiring district courts to consider all of the Poulis

factors before imposing the sanction of dismissal.10 See, e.g., Comdyne I, Inc. v. Corbin,


       10
         Even if it were proper to consider dilatoriness in isolation, we are skeptical that
missing a local rule’s briefing deadline, a deadline that had been extended once by court
order, can fairly be called a “history of dilatoriness.” Ordinarily some explicit warning of
impending dismissal is given to a litigant, along with an opportunity to adjust behavior,
before the sanction of dismissal is imposed. A party should at least be given the
opportunity to explain any dilatory conduct, consistent with our recent statement in

                                              12
908 F.2d 1142, 1148 (3d Cir. 1990) (noting that this circuit applies the Poulis analysis in

“all sanctions orders which deprive a party of the right to proceed with or defend against a

claim”).

       For these reasons, we will vacate the District Court’s dismissal and remand for

further proceedings.11




Briscoe v. Klaus, __ F.3d __, 2008 U.S. App. LEXIS 16612, at *28-*29 (3d Cir. Aug. 6,
2008), in which we emphasized that where a court has an insufficient factual basis to
conduct a proper Poulis analysis, it is an abuse of discretion not to permit a litigant a “full
and fair opportunity” to be heard.
       11
          In assuming jurisdiction over this appeal, we reject Appellee Long’s argument
that we lack jurisdiction because the District Court dismissed the case without prejudice.
In support of his argument, Long cites Borelli v. City of Reading, 532 F.2d 950 (3d Cir.
1976), in which we held that a dismissal of a complaint without prejudice for failure to
state a claim was not a final, appealable order unless the plaintiff “cannot amend or
declares his intention to stand on his complaint.” Id. at 951-52. However, a dismissal for
failure to prosecute, whether with or without prejudice, is a final, appealable order. See
Rogers v. Andrus Transp. Servs., 502 F.3d 1147, 1151 (10th Cir. 2007) (“Because the
court’s order [dismissing without prejudice for failure to prosecute] closed the case, it is
appealable.”); Wynder, 360 F.3d at 76 (“We have jurisdiction to consider [a challenge to
a Rule 41(b) dismissal] because a dismissal without prejudice that does not give leave to
amend and closes the case is a final, appealable order under 28 U.S.C. § 1291.”); Ash v.
Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984) (holding that a district court’s order
dismissing an action without prejudice for failure to prosecute is appealable); Drake v.
Sw. Bell Tel. Co., 553 F.2d 1185, 1186 (8th Cir. 1977) (“An order dismissing a cause of
action for want of prosecution, whether with or without prejudice, terminates the action
and, therefore, constitutes a final and appealable order.”); cf. United States v. Wallace &
Tiernan Co., 336 U.S. 793, 794 n.1 (1949) (“That the dismissal was without prejudice to
filing another suit does not make the cause unappealable, for denial of relief and dismissal
of the case ended this suit so far as the District Court was concerned.”).

                                              13
