                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-6-2006

Coley v. Bucks Cty Children
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4660




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"Coley v. Bucks Cty Children" (2006). 2006 Decisions. Paper 1302.
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                                               NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                       NO. 04-4660
                    ________________

               RUSSELL WYDELL COLEY,

                              Appellant

                                v.


BUCKS COUNTY CHILDREN & YOUTH SERVICES AGENCY;
 KELLY GAHAN-TAYLOR; JESSICA PIERSON; KATHLEEN
 GLEASON, ET AL.; DELTA COMMUNITY SUPPORTS, INC.;
              CHRISTINE SIDES, ET AL.

        ____________________________________

       On Appeal From the United States District Court
           For the Eastern District of Pennsylvania
                  (D.C. Civ. No. 04-cv-04798)
        District Judge: Honorable William H. Yohn, Jr.
       _______________________________________


         Submitted Under Third Circuit LAR 34.1(a)
                     October 12, 2005

 Before: ROTH, MCKEE AND ALDISERT, CIRCUIT JUDGES

                   (Filed: April 6, 2006 )


                _______________________

                       OPINION
                _______________________
PER CURIAM

       Russell Coley appeals the District Court’s order dismissing his action with

prejudice and denying his motion for counsel as moot. On October 13, 2004, Russell

Coley submitted a complaint and filed an application to proceed in forma pauperis. On

October 22nd, Coley filed an addendum to his complaint, his prison account statement,

and a motion for appointment of counsel. By order entered November 8th, the District

Court denied the application to proceed in forma pauperis without prejudice. It stated that

Coley may not have been aware when he brought the action that he would have to pay the

full filing fee even if the case was dismissed and gave Coley twenty days to file a notice

indicating that he wished to proceed and obligate himself to pay the fee. On November

10th, Coley filed an motion for counsel and on November 17th, an affidavit relating to his

complaint. On December 2, 2004, the District Court dismissed the action with prejudice.

Coley filed a timely notice of appeal, and we have jurisdiction under 28 U.S.C. § 1291.

       The District Court dismissed Coley’s complaint because it found that he failed to

file a notice that he wished to proceed within the twenty-day period provided in the

November 8, 2004, order. Thus, we review the District Court’s order for an abuse of

discretion. Redmond v. Gill, 352 F.3d 801, 803 (3d Cir. 2003) citing Poulis v. State Farm

Fire & Casualty Co., 747 F.2d 863 (3d Cir.1984). “Dismissals with prejudice or defaults

are drastic sanctions, termed ‘extreme’ by the Supreme Court, and are to be reserved for

comparable cases.” Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 867-8 (3d



                                             2
Cir. 1984) (citation omitted). In Poulis, we set forth six factors to be balanced in deciding

whether to dismiss a case as a sanction:

       (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, 747 F.2d at 868. In determining whether the District Court has abused its

discretion, we examine its balancing of these factors and whether its findings are

supported by the record. Here, the District Court did not address or weigh the Poulis

factors.

       With respect to the first Poulis factor, Coley, as a pro se litigant, is wholly

responsible for his failure to file an explicit notice that he wished to proceed.1 Because

the defendants had not yet been served with the complaint, it does not appear that they

would be prejudiced in any way. As the case was in its initial stages, there was no history

of dilatoriness on Coley’s part. An alternative sanction would have been to dismiss the

complaint without prejudice. We believe that the final factor also weighs in Coley’s




   1
    Coley argues on appeal that the District Court did not realize that his motion for
counsel and inmate account certification were indicators that he wished to proceed.
While we do not believe that these filings were sufficient compliance with the District
Court’s order, we also do not consider Coley’s conduct to be a “a willful failure to
respond to the [] order that evidences an intent to flout the District Court’s instructions.”
Redmond, 352 F.3d at 803.

                                               3
favor because his application to proceed in forma pauperis had merit.2 Thus, we conclude

that the District Court abused its discretion in dismissing the action with prejudice.

       We note that the form Coley used for his application to proceed in forma pauperis

includes language which states “I understand that the granting of in forma pauperis status

does not waive payment of the full filing fee.” App. at 1. While we appreciate the District

Court wanting to ensure that prisoner litigants are aware that they will have to pay the full

filing fee, if the application is complete, the District Court should only consider whether

the applicant is economically eligible. Sinwell v. Shapp, 536 F.2d 15, 19 (3d Cir. 1976).

Moreover, because the application to proceed in forma pauperis was denied and the

complaint was never filed, the action should not have been dismissed with prejudice.3

       For the above reasons, we will vacate the District Court’s December 1, 2004 order

and remand the matter for further proceedings. On remand, the District Court should

grant Coley’s application to proceed in forma pauperis.




   2
     The District Court did not conclude that Coley was not indigent and proposed an
initial partial filing fee.
   3
     Because the complaint was never filed, the merit of the claims or the District Court’s
jurisdiction over them is not relevant to this appeal.
