                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-2-2005

Shelley v. Sprowls
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1909




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Recommended Citation
"Shelley v. Sprowls" (2005). 2005 Decisions. Paper 747.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/747


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CPS-259                                                   NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                   NO. 05-1909
                                ________________


                              BARRY E. SHELLEY,

                                         Appellant

                                           v.


          TPR. TIMOTHY SPROWLS, STATE POLICE, SOMERSET, PA;
          TPR. JEFFERY FLOWERS, STATE POLICE, SOMERSET, PA;
             TPR. GARY BOYER, STATE POLICE, SOMERSET, PA;
           TPR. EDWARD THOMAS, STATE POLICE, SOMERSET PA
                   ____________________________________

                  On Appeal From the United States District Court
                     For the Western District of Pennsylvania
                            (D.C. Civ. No. 01-cv-00226J)
                  District Judge: Honorable Maurice B. Cohill, Jr.
                  _______________________________________


          Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                    June 3, 2005

            BEFORE: ALITO, McKEE and AMBRO, CIRCUIT JUDGES

                              (Filed : August 2, 2005)

                            _______________________

                                    OPINION
                            _______________________

PER CURIAM
       In 2001, Barry E. Shelley filed suit against four Pennsylvania State Troopers for

purportedly using excessive force and causing him serious injury during an arrest in

1999. Because of Shelley’s failure to comply with District Court orders and procedure,

Defendants moved twice to dismiss Shelley’s case for failure to prosecute. The motions

were denied, and, more than once, deadlines for Shelley to comply with discovery

deadlines and to file a pretrial statement were reset. Finally, Shelley was warned to file

his pretrial statement on or before January 14, 2005, or face dismissal of his complaint.

When Shelley did not file his pretrial statement, the District Court, adopting the report

and recommendation of a Magistrate Judge, dismissed Shelley’s complaint for failure to

prosecute. Shelley appeals and moves for appointment of counsel.

       Shelley’s appeal must be dismissed because it has no arguable basis in fact or law.

See 28 U.S.C. § 1915(e)(2)(B)(i) (2005); Neitzke v. Williams, 490 U.S. 319, 325 (1989).

       Under the circumstances, dismissal was a justifiable sanction for Shelley’s failure

to prosecute his case. The District Court did not abuse its discretion in weighing the

following six relevant 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 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). See also Curtis

T. Bedwell & Sons, Inc. v. Int’l Fidelity Ins. Co., 843 F.2d 683, 696 (3d Cir. 1988)

                                             2
(holding that not all Poulis factors must weigh in favor of dismissal).

       The evaluation of the first Poulis factor supports the District Court’s decision.

The responsibility for Shelley’s failure to prosecute falls on him, as he proceeded pro se.

See Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002).

       Second, Shelley prejudiced his adversaries by failing to comply with scheduling

orders and by failing to provide information relevant to his claim. He did not respond to

discovery requests. He did not file a pretrial statement (and he did not explain why not).

As the Magistrate Judge noted, because Shelley provided, in his complaint, a narrative of

the alleged use of excessive force, he mainly needed to supply a report of his medical

treatment and records relevant to the injuries he claimed to have suffered. See

W.D.PA.LR. 16.1.4. With the passage of time (approximately five years since the

alleged incident and three and a half years since the filing of the complaint), memories

have dimmed, and the ability to trace the cause of Shelley’s injuries, if any, has

decreased.

       Also, the District Court record shows a history of dilatoriness, which is

“intolerable.” See Poulis, 747 F.2d at 868. More than once, the District Court reset the

deadline for Shelley to comply with discovery obligations and to file a pretrial statement.

For instance, in June 2003, Shelley was warned to file his pretrial statement on or before

July 31, 2003. At the end of August 2003, after he had not filed his pretrial statement or

responded to Defendants’ motion to dismiss, he was given an additional ten days to file

                                             3
his pretrial statement. He did not comply with the earlier orders just as he did not

respond to his final warning to file his pretrial statement on or before January 14, 2005,

or face dismissal of his complaint. Also, although some of the delay in deposing Shelley

is attributable to Defendants or factors outside of the parties’ control, it appears that

Shelley contributed to the delay by not appearing for his deposition when it was initially

scheduled. His history of dilatoriness is also shown by the District Court’s difficulty in

trying to contact Shelley, who was paroled from prison and was transferred from one

prison to another without notifying the Court of his new addresses.1

       It is unclear whether Shelley’s conduct was willful or in bad faith. In a letter sent

to Defendants (and attached to a motion filed by them), Shelley conceded that he wished

to stop proceeding with his suit until he was released from prison sometime between

2004 and 2008. However, Shelley has also noted the difficulty in maintaining his civil

action without counsel and while incarcerated.

       An order assessing a monetary penalty for Shelley’s noncompliance with orders

and procedural requirements and its resulting prejudice to Defendants was inappropriate,

because Shelley did not have the funds to satisfy such an order. See Emerson, 296 F.3d



       1
       Furthermore, he did not keep the District Court apprised of his new addresses
even after the Magistrate Judge found a self-addressed envelope with Shelley’s papers
and wrote him a letter to make him aware of the importance of filing a proper change of
address form with the District Court Clerk, after Shelley had failed to notify the District
Court of first changed address.


                                              4
at 191. Although dismissal is an extreme remedy, “dismissal upon disregard of an order,

especially where the litigant has been forewarned, generally is not an abuse of

discretion.” See Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). Dismissal must

be judged in the context of the District Court’s extended contact with the litigant. See

Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992).

       As for the final Poulis factor, Shelley stated a claim for relief in his complaint,

but, without supporting documentation, it is unclear whether he or Defendants would

succeed on the merits.

       For the foregoing reasons, and particularly because of Shelley’s pattern of

uncooperativeness, the District Court’s order of dismissal was unremarkable. See Moon,

863 F.2d at 837. Under the deferential standard of review that governs, the District

Court did not abuse its discretion. See Poulis, 747 F.2d at 870. Accordingly, because

any argument to the contrary would be without a sound legal basis, we will dismiss

Shelley’s appeal as frivolous. His motion for appointment of counsel is denied.




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