BLD-004                                                           NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                                       No. 10-1795
                                       ___________

                               IN RE: JOHN J. NEALEN,
                                                  Appellant
                        ____________________________________

                       On Appeal from the United States District Court
                          for the Western District of Pennsylvania
                                (D.C. Civil No. 09-cv-00072)
                         District Judge: Honorable Kim R. Gibson
                        ____________________________________

         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
                                    October 7, 2010

        Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges

                             (Opinion filed : October 14, 2010)
                                         _________

                                         OPINION
                                         _________

PER CURIAM

       John Nealen, proceeding in forma pauperis, appeals from the order of the United

States District Court for the Western District of Pennsylvania dismissing his appeal for

lack of prosecution.




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                                               I.

         On October 21, 2008, Nealen filed a Chapter 13 bankruptcy petition in the United

States Bankruptcy Court. 1 On November 7, 2008, the Bankruptcy Court dismissed the

petition without prejudice because Nealen’s filing had been deficient and he had failed to

provide the documents necessary to complete the filing within the period specified by the

Clerk’s Office. Nealen subsequently filed a one-page letter motion titled “Motion to

Reinstate Case Per Rule 60 F.R.A.P. Motion for 60 Days Additional Time To File Form

6. Request For Clerk To Provide Said Form 6 To Petitioner./ Americans With Disabilities

Act Notice of Appeal To The Third Circuit Court of Appeals.” The motion requested

additional time to file based on the fact that Nealen had requested legal assistance from

pro bono counsel with no response. He also asserted that he suffered from disabilities

due to two accidents and high blood pressure. The Bankruptcy Court denied the relief

requested and ordered that the motion be treated as a Notice of Appeal to the District

Court.

         Nealen did not file any additional briefing in support of his appeal in the District

Court. The District Court dismissed the appeal for failure to prosecute and failure to



         1
          This was not Nealen’s first bankruptcy petition. Between November 2007
         and March 2009, Nealen filed four separate bankruptcy petitions, each of
         which was dismissed for failure to file documents or comply with
         procedural rules. See In re Nealen, 407 B.R. 194, 197 (Bankr. W.D. Pa.
         2009) (summarizing the procedural history of each of Nealen’s bankruptcy
         cases).

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follow procedural requirements. The instant appeal followed. 2

                                             II.

       We have jurisdiction over this appeal under 28 U.S.C. § 1291. We review a

dismissal for failure to prosecute for abuse of discretion. Jewelcor Inc. v. Asia

Commercial Co., 11 F.3d 394, 397 (3d Cir. 1993).

                                             III.

       Under Rule 8001(a) of the Federal Rules of Bankruptcy Procedure, the District

Court is empowered to dismiss an appeal for failure to prosecute or otherwise follow the

procedures set out in the Bankruptcy Rules. Fed. R. Bankr. P. 8001(a). In reviewing a

dismissal for failure to prosecute, we must determine if the District Court properly

balanced the following six factors, and whether the record supports its findings: (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. Poulis v. State

Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). Although not all of these

factors need be met for a district court to find dismissal is warranted, we have always


       2
        After filing this appeal, Nealen filed motions for reconsideration and
       Clarification in the District Court. We stayed the appeal pending the
       District Court’s ruling on those motions. The District Court denied the motions
       on August 5, 2010. Nealen did not appeal.
                                              3
“required consideration and balancing of all six of the factors, and have recommended the

resolution of any doubts in favor of adjudication on the merits.” United States v.

$8,221,877.16 in United States Currency, 330 F.3d 141, 162 (3d Cir. 2003). Failure to

consider all of the factors prior to dismissing an action for failure to prosecute constitutes

an abuse of discretion. See Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 73-74 (3d Cir.

1987).

         In its order dismissing the appeal, the District Court addressed and weighed each

of the six Poulis factors. The District Court found that even though Nealen was pro se,

he was not incompetent and was personally responsible for fulfilling procedural

requirements. The District Court also found that the Appellee would be prejudiced if the

appeal went forward on the merits because Nealen had failed to advance any cognizable

factual or legal argument on appeal, making it difficult for Appellee to formulate a

response. Nealen’s dilatoriness in failing to file a statement of issues on appeal or

designate the contents of the record on appeal was also discussed. The District Court

found that Nealen did not appear to be acting in bad faith, but he had a history of failing

to complete court filings and follow procedural rules as demonstrated in the District

Court and the Bankruptcy Court. The District Court evaluated whether an alternative

sanction such as a monetary penalty would be appropriate, and concluded that such a

sanction would be unduly harsh given that Nealen was proceeding in forma pauperis.

Finally, the District Court found that the appeal did not appear to have merit because the

underlying dismissal stemmed from Nealen’s failure to file necessary documents, and
                                              4
Nealen had provided no briefing or argument to contest the dismissal, other than the one-

page letter motion that the Bankruptcy Court construed as a notice of appeal.

       The District Court considered all six Poulis factors and its findings are supported

by the record. It cannot be said that the District Court abused its discretion in concluding

that dismissal was warranted. Accordingly, we will affirm the order of the District Court.




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