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


9-30-2008

Caterbone v. Lancaster Cty Prison
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4474




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"Caterbone v. Lancaster Cty Prison" (2008). 2008 Decisions. Paper 463.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/463


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                                                       NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                         ________________

                                No. 07-4474
                             ________________

                        STANLEY J. CATERBONE,

                                                   Appellant

                                      v.

LANCASTER COUNTY PRISON; MANHEIM TOWNSHIP POLICE DEPARTMENT;
 STONE HARBOR POLICE DEPARTMENT; AVALON POLICE DEPARTMENT;
  COMMONWEALTH NATIONAL BANK, i.e. Mellon Bank; SOUTH REGIONAL
   POLICE DEPT.; LANCASTER COUNTY SHERIFFS DEPT.; FULTON BANK


                ____________________________________

               On Appeal from the United States District Court
                    for the Eastern District of Pennsylvania
                      (D.C. Civil Action No. 05-cv-2288)
               District Judge: Honorable Mary A. McLaughlin
                ____________________________________

                             ________________

                                No. 07-4475
                             ________________

         STANLEY J. CATERBONE; ADVANCED MEDIA GROUP,


                                     v.


      MR. RANDALL O. WENGER, of the Lancaster County Prothonetary;
        MATTHEW BOMBERGER, Office of the Public Defender of
   Lancaster County; JUDGE MICHAEL GEORGELIS, Lancaster County; LEO
          J. ECKERT JR., Lancaster County District Magistrate; KELLY S.
         BALLENTINE, Lancaster County District Magistrate; MAYNARD
   HAMILTON, JR., Lancaster County District Magistrate; DENISE COMMINS,
        Lancaster County District Magistrate Judge; RICHARD H. SIMMS,
    Lancaster County District Magistrate; STEVEN MYLIN, Lancaster County
            District Magistrate; WILLIAM G. REUTER, Lancaster County
    District Magistrate; MICHAEL SMITH, Dalphin County District Magistrate;
    OFFICER RONALD BEZZARD, of the East Lampeter Police Department;
      OFFICER THOMAS GJURICH, of the Lancaster City Bureau of Police;
        OFFICER ADAM CRAMER, of the Southern Regional Police Dept.;
CHIEF JOHN FIORILL; OFFICER ROBERT BUSER, of the Southern Regional Police
   Department; OFFICER ROBERT M. FEDOR, of the Southern Regional Police
   Department; ROBERT BOURNE, of the Southern Regional Police Department;
 JOLYNN STEINMAN, Postmaster, Conestoga Post Office; NELSON BREWSTER,
     Investigator, of the PA Attorney General Office; OFFICER MICHAEL K.
       SCHAEFER; LUIS FURINA; DONALD TOTARO, Lancaster County
     District Attorney; DETECTIVE MICHAEL L. LANDIS, Lancaster County

                                                 Stanley J. Caterbone,
                                                                Appellant
                  ____________________________________

                On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                      (D.C. Civil Action No. 06-cv-04650)
                District Judge: Honorable Mary A. McLaughlin
                 ____________________________________

                   Submitted Under Third Circuit LAR 34.1(a)
                              September 26, 2008
          Before: SLOVITER, BARRY and NYGAARD, Circuit Judges

                         (Filed: September 30, 2008 )

                            ___________________

                                 OPINION
                            ___________________


                                      -2-
PER CURIAM

       Stanley J. Caterbone appeals from the dismissals of two civil cases for his failure

to comply with the District Court’s orders. For the reasons that follow, we will vacate

and remand to the District Court for further consideration.

                                               I.

       In May 2005, Caterbone sued Lancaster County prison and others asserting that his

constitutional rights, shareholder rights, civil liberties and “right of due access to the law”

were violated (E.D. Pa. Civ. No. 05-cv-02288). Several of the Defendants moved to

dismiss the complaint and on June 13, 2006, the District Court granted the motions to

dismiss and also dismissed the complaint as to the non-moving Defendants because they

were never properly served. The following day, Caterbone filed a document which the

District Court construed as a request for leave to file an amended complaint. The District

Court granted the request and subsequently set a deadline of August 20, 2006, for filing

an amended complaint. The District Court indicated that it would dismiss the case with

prejudice if Caterbone failed to file an amended complaint by the deadline.

       After granting three continuances, the District Court set an October 15, 2007

deadline, again warning Caterbone that failure to comply would result in dismissal with

prejudice. The District Court also stated that it would not grant any additional extensions

of time. On October 15, 2007, Caterbone filed a rambling, sixty-three page “Amendment

to Complaint and Motion for Continuance,” asserting thirty-eight causes of action against


                                              -3-
several dozen defendants and requesting an additional sixty days to file another amended

complaint. On October 23, 2007, the District Court issued an order denying the request

and dismissing the case with prejudice. The District Court explained in its order that the

incomplete complaint submitted by Caterbone did not constitute a valid amended

complaint, and that he had failed to file a valid amended complaint in the sixteen months

since he was granted leave to do so. Caterbone filed a notice of appeal, and the appeal

was docketed at C.A. No. 07-4474.

       Caterbone commenced a second action on October 18, 2006, by filing a complaint

asserting federal civil rights and RICO claims against twenty-five defendants (E.D. Pa.

Civ. No. 06-cv-04650). Caterbone requested and was granted leave to proceed in forma

pauperis. On November 17, 2006, the District Court issued an order directing Caterbone

to file an amended complaint containing a more definite statement of his claims or face

dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The District Court also granted

Caterbone’s motion for continuance, placing the case in civil suspense until April 19,

2007. After granting two additional continuances, the District Court directed him to file a

status report on or before August 31, 2007. On September 12, 2007, in response to

Caterbone’s status report requesting an additional continuance, the District Court issued

an order denying the request and directing him to serve his amended complaint on the

defendants on or before October 15, 2007, noting that the case had been pending for

nearly a year and that he had not yet served any of the defendants. On October 15, 2007,



                                            -4-
he filed the same sixty-three page document that he filed in E.D. Pa. No. 05-2288, which

included an identical request for an additional sixty days to file an amended complaint.

On October 23, 2007, the District Court entered an order dismissing the case because he

had failed to serve his complaint as directed in the previous order. Caterbone’s appeal in

this case was docketed at C.A. No. 07-4475. The two appeals have been consolidated for

disposition.

                                             II.

       Before we discuss the merits of the case we must first determine whether we have

jurisdiction over the appeals. Appellees Fulton Bank and Manheim Township Police

Department have filed motions to dismiss for lack of jurisdiction, arguing that

Caterbone’s notice of appeal in C.A. 07-4474 was untimely filed. Caterbone has filed

responses asserting that the notice of appeal was timely in both cases.

       In a civil case such as this one, a notice of appeal must be filed within 30 days of

the entry of the District Court’s judgment or order. See Fed. R. App. P. 4(a)(1)(A). The

time limits prescribed for filing a notice of appeal in a civil case are “mandatory and

jurisdictional.” Bowles v. Russell, 127 S. Ct. 2360, 2363 (2007). Both of Caterbone’s

cases were dismissed on October 23, 2007, and he filed notices of appeal on November

23, 2007, or 31 days after the October 23 orders. November 22, however, was the

Thanksgiving holiday; therefore, Caterbone had until the following day to comply with

the thirty-day deadline for filing a notice of appeal. See Fed. R. App. P. 26(a)(1)-(4).



                                             -5-
Thus, the notices of appeal were timely filed. Accordingly, we deny Appellees’ motions

to dismiss the appeals for lack of jurisdiction.

                                             III.

         We have jurisdiction under 28 U.S.C. § 1291, and we review the District Court’s

dismissals for abuse of discretion. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir.

1992).

         Under Federal Rule of Civil Procedure 41(b), a district court may dismiss an action

sua sponte if a litigant fails to comply with a court order or to prosecute his case. See

Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). Before dismissing an action,

however, a district court should determine the propriety of punitive dismissals in light of

the factors outlined in Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863 (3d Cir.

1984). The factors are: 1) the extent of the party’s personal responsibility; 2) the

prejudice to the opponent; 3) any history of dilatoriness; 4) whether the conduct of the

party or the attorney was willful or in bad faith; 5) whether effective alternative sanctions

are available; and 6) the meritoriousness of the claim or defense. Id. at 868. Only in the

rarest of circumstances, those demonstrating the most contumacious of conduct, may a

district court dispense with the Poulis factors altogether. 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). We have repeatedly emphasized that the “drastic sanction” of dismissal is

disfavored except in the most egregious circumstances. See United States v.



                                              -6-
$8,221,877.16 in U.S. Currency, 330 F.3d 141, 161 (3d Cir. 2003).

       The District Court erred by dismissing Caterbone’s suits without analyzing the

Poulis factors. While it is true, as Appellees argue, that Caterbone delayed filing his

amended complaints for several months, such behavior cannot be characterized as

“flagrant bad faith.” See Adams v. Trustees of N.J. Brewery Employees’ Pension Trust

Fund, 29 F.3d 863, 875 (3d Cir. 1994) (internal quotation marks and citation omitted).

After all, the District Court granted, and Caterbone relied on, continuances. Nor is this an

instance where Caterbone abandoned the case (Spain) or where his behavior was so

egregious as to amount to an abandonment of the case (Guyer). To the contrary, it

appears that Caterbone made a good-faith effort to file an amended complaint. See

Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 343 (3d Cir. 1982) (behavior not

contumacious where effort made to comply with court order). We do not find that

Caterbone’s conduct was so contumacious that the District Court could proceed under

Fed. R. Civ. P. 41(b) without analyzing the Poulis factors at all.

       The District Court also improperly dismissed Caterbone’s suit in 06-cv-04650 by

citing Caterbone’s failure to serve process. As a litigant proceeding in forma pauperis,

Caterbone was not responsible for the service of process. See 28 U.S.C. § 1915(d) (“the

officers of the court shall issue and serve all process . . .”); see also Welch v. Folsom, 925

F.2d 666, 670 (3d Cir. 1991) (district court erred by dismissing complaint on the ground

that a plaintiff proceeding in forma pauperis failed to serve the defendant). Once



                                             -7-
Caterbone filed his amended complaint, the District Court was obligated to appoint a

United States marshal to effect service. Fed. R. Civ. P. 4(c)(3). In any event, it may be

that the dismissal in 06-cv-04650 was prompted by the same concerns motivating the

court in 05-cv-02288.

       For these reasons, we will vacate the District Court’s orders dismissing

Caterbone’s complaints and remand the cases for further proceedings. We emphasize that

we are not holding that the Poulis factors dictate something less than dismissal in this

case; we hold only that the District Court must, at this stage, perform a Poulis analysis to

guide its exercise of discretion. Given that Caterbone filed identical amended complaints

in both cases, the District Court may wish to consider whether the cases should be

consolidated on remand.




                                             -8-
