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


10-4-2006

Wesley v. Dixon
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2043




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"Wesley v. Dixon" (2006). 2006 Decisions. Paper 355.
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DPS-335                                                   NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                  NO. 06-2043
                               ________________

                               DANIEL WESLEY,

                                        Appellant

                                          v.

            DIRECTOR DOCTOR BRUCE DIXON, Allegheny County
               Correctional Health Service Inc.; JAIL PHYSICIAN
            DOCTOR PATTERSON, Allegheny Correctional Services
              Inc. Defendants sued in the professional and individual
                        capacity; ALLEGHENY CO. JAIL
                   ____________________________________

                  On Appeal From the United States District Court
                      For the Western District of Pennsylvania
                             (D.C. Civ. No. 04-cv-00084)
                  District Judge: Honorable Thomas M. Hardiman
                  _______________________________________


Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
                   Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                September 21, 2006

  Before: FUENTES, VAN ANTWERPEN AND CHAGARES, CIRCUIT JUDGES.

                              (Filed October 4, 2006)


                           _______________________

                                   OPINION
                           _______________________
PER CURIAM

       Daniel Wesley appeals the District Court’s order dismissing his complaint for

failure to prosecute. In January 2004, Wesley filed a civil rights complaint in which he

alleged that two doctors at the Allegheny County Jail were deliberately indifferent to his

medical needs because they refused to provide him with surgery to remove his bowel bag

and reattach his intestines because it would be too expensive. In March 2004, the District

Court granted Wesley’s motion to proceed in forma pauperis. In March 2005, the

Magistrate Judge ordered the U.S. Marshal to mail the complaint and request for waiver

of service to the defendants. On May 13, 2005, the Marshal filed notices of inability to

serve the complaint on the three named defendants. On the forms it was noted “returned

to court unexecuted - no response to waiver by mail.” On May 19, 2005, the Magistrate

Judge ordered that the Clerk prepare a duplicate summons and complaint and that the

U.S. Marshal make personal service on the defendants. There is nothing in the record to

indicate that personal service was attempted.

       On February 1, 2006, the Magistrate Judge ordered Wesley to show cause why the

case should not be dismissed for lack of prosecution. The Magistrate Judge noted that

Wesley had been released from jail and had not advised the court of any change of

address. The Magistrate Judge stated that Wesley had been informed that the failure to

advise the District Court of an address change could result in the dismissal of his case for




                                             2
failure to prosecute. Wesley did not respond1 and the District Court entered an order

dismissing the action on February 28, 2006. On March 23, 2006, Wesley filed a timely

notice of appeal. He has also filed a motion for the appointment of counsel.

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

order dismissing the action for failure to prosecute for an abuse of discretion. Redmond

v. Gill, 352 F.3d 801 (3d Cir. 2003); Poulis v. State Farm Fire & Casualty Co., 747 F.2d

863, 868 (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, 747 F.2d at 867-8 (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.

Id. at 868 (emphasis omitted). 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, because Wesley is proceeding pro se, he


   1
     The show cause order was returned to the court with the envelope marked “resident
released.”
                                              3
bears full responsibility for the litigation. However, as noted above, the District Court

had ordered the Clerk to prepare duplicate summons and the Marshal to make personal

service on the defendants.2 Thus, at the time Wesley was ordered to show cause why the

case should not be dismissed, there was nothing for him to do for the prosecution of the

action.

          As for the second Poulis factor, it is not clear whether the defendants will be

prejudiced by any delay. However, because the delay is not attributable to Wesley, this

factor does not weigh against him. As the case was in its initial stages, there was no

history of dilatoriness on Wesley’s part. As for whether the conduct was willful or in bad

faith, there is nothing to indicate that Wesley’s failure to notify the Court of his address

change was anything more than forgetfulness. With respect to the effectiveness of

alternate sanctions, we believe that there was no need for a sanction in this case.

Wesley’s allegations state a claim for deliberate indifference to his serious medical needs;

he alleged that he was denied necessary medical treatment because of its cost.

          Because the District Court did not weigh the Poulis factors, it abused its discretion

in dismissing the action for failure to prosecute. We conclude that a balancing of the

Poulis factors does not weigh in favor of dismissal. Summary action is appropriate if



   2
       Federal Rule of Civil Procedure 4(c)(2) provides that “[a]t the request of the plaintiff,
. . . the court may direct that service be effected by a United States marshal, deputy
United States marshal, or other person or officer specially appointed by the court for that
purpose. Such an appointment must be made when the plaintiff is authorized to proceed
in forma pauperis pursuant to 28 U.S.C. § 1915.”
                                                4
there is no substantial question presented in the appeal. See Third Circuit LAR 27.4. For

the above reasons, we will summarily vacate the District Court’s February 28, 2006 order

and remand the matter to the District Court for service of the complaint on the defendants.

See Third Circuit I.O.P. 10.6. Wesley’s motion for the appointment of counsel on appeal

is denied as moot.




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