                                                          NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                    No. 12-2704
                                    ___________

                                 NATHAN RILEY,
                                                    Appellant

                                         v.

       SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
       LOUIS S. FOLINO, Superintendent, State Correctional Institution Greene;
BRIAN D. TANNER, Security Lieutenant - C.O. 3, State Correctional Institution Greene;
 L. WINFIELD, Major - C.O. 5, State Correctional Institution Greene; T.D. JACKSON,
Deputy Superintendent - SCI-Greene; BRENDA MARTIN, Unit Manager - SCI-Greene;
 MICHAEL SMITH, Acting Corrections Classification Program Manager - SCI-Greene;
        ROBERT MCCOMBIE, Corrections Activity Manager I at SCI-Greene;
  BRIAN COLEMAN, Deputy Superintendent of Facility Management - SCI-Greene;
 LAUREL HARRY, Unit Manager at SCI-Greene; CARLA SWARTZ, Unit Manager at
SCI-Greene; JEFFREY MARTIN, Deputy Superintendent of Facility Management SCI-
Greene; TIMOTHY I. MARK, Deputy Chief Counsel for Hearing and Appeals, Office of
Chief Counsel, Pennsylvania Department of Corrections; STEVE CRISTINI, Corrections
    Counselor, I, SCI-Greene; DONNA NICKOLAS, Correctional Counselor, II, SCI-
  Greene; DEAN GEEHRING, Mailroom Supervisor, SCI-Greene; JEAN W. SCOTT,
Business Manager - SCI-Greene; KRISTEN P. REISINGER, Chief Grievance Officer at
   Commonwealth of Pennsylvania Department of Corrections; CINDY G. WATSON,
     Chief Grievance Officer, Secretary’s Office of Inmate Grievance and Appeals,
 Pennsylvania Department of Corrections; IMAM ABUBAKAR MUHAMMAD, Acting
FCPD - SCI-Greene; MARK CAPOZZA, Deputy Superintendent of Centralize Service -
   SCI-Greene; DAN DAVIS, Facility Grievance Coordinator, SCI-Greene, all in their
       Individual and Official Capacities; SUSAN COWAN; CO 4 WORKMAN;
 CO 2 LEMASTERS; CO 3 PRICE; GENT; JOHN/JANE DOES, Mail Inspectors #1-5;
  REV. ALEDA MENCHYK; JEFF ROGERS; TRACY POLLOCK; CO 4 WALKER;
      BONNIE LINDLEY; CO 5 GRAINEY; T. MACKNAIR; THERON PEREZ;
 ERIC VALKO; ROBERT E. DIETZ, M.A.; BUREAU OF TREATMENT SERVICES,
                      sued in their individual and official capacities
                       ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                         (D.C. Civil Action No. 2:08-cv-01675)
                       District Judge: Honorable Nora B. Fischer
                      ____________________________________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    August 27, 2013

       Before: FUENTES, VANASKIE and VAN ANTWERPEN, Circuit Judges

                              (Opinion filed: August 29, 2013)
                                       ___________

                                         OPINION
                                        ___________

PER CURIAM

       Nathan Riley, a Pennsylvania state prisoner proceeding pro se, appeals from the

District Court’s dismissal of his civil rights action for failure to prosecute. For the

reasons that follow, we will affirm.

                                              I.

       In December 2008, Riley commenced this action by filing a pro se complaint in

the District Court against 27 prison officials, five of whom were identified as “John/Jane

Doe.” Over the next several months, Riley obtained multiple extensions of the time to

serve the complaint. The 22 defendants whose names were identified in the complaint

(hereinafter referred to as “the Original Defendants”) ultimately waived service and, in

November 2009, filed a partial motion to dismiss. After obtaining three extensions of the

time to respond to that motion, Riley filed his response in April 2010. Shortly thereafter,


                                              2
he sought leave to file an amended complaint. United States Magistrate Judge Cathy

Bissoon granted Riley’s request and denied the Original Defendants’ motion to dismiss

without prejudice to their right to file a new motion challenging the amended complaint.

       Riley’s amended complaint, which named the Original Defendants and 21

additional defendants (those 21, which included the five “John/Jane Does,” are

hereinafter referred to as “the New Defendants”), was filed in May 2010. Thereafter, the

Original Defendants moved to dismiss the claims against them. Meanwhile, Riley

obtained an extension of the time to provide the United States Marshals Service with the

paperwork needed to serve the New Defendants. When the deadline passed without

Riley providing that paperwork, Magistrate Judge Bissoon ordered him to show cause

why his case should not be dismissed as to the New Defendants. In response to that

order, Riley averred that the $10 per month the prison allowed him to allot to postage and

copying was insufficient because he had several pending cases. In January 2011,

Magistrate Judge Bissoon issued a report recommending that the District Court dismiss

the claims against the New Defendants without prejudice.

       In March 2011, the District Court addressed the Original Defendants’ motion to

dismiss and Magistrate Judge Bissoon’s report. With respect to the Original Defendants,

the court (1) dismissed with prejudice a subset of Riley’s claims, (2) dismissed another

subset of his claims without prejudice to his right to amend those claims, (3) dismissed

his state law claims without prejudice to his right to raise them in state court,

(4) terminated eight of the Original Defendants from the case, and (5) denied the motion

to dismiss “in all other respects.” As for the New Defendants, the court adopted

                                              3
Magistrate Judge Bissoon’s report and dismissed all of those defendants without

prejudice for failure to prosecute.

       In October 2011, Magistrate Judge Bissoon ordered that Riley

              shall, if appropriate, file an amended complaint with respect
              to some or all of his claims that were dismissed without
              prejudice by the order of March 29, 2011. This amended
              complaint shall contain all of the allegations and claims that
              survived dismissal, as well as any amendments that [Riley]
              wishes to make with respect to the claims for which he was
              given leave to amend, in one stand-alone document.

(Mag. J. Order entered Oct. 12, 2011 (citation omitted).)

       After obtaining another extension, Riley filed his second amended complaint in

November 2011. This latest pleading alleged claims against nine of the 14 remaining

Original Defendants and some of the (previously dismissed) New Defendants. Those

nine Original Defendants answered this new pleading, raising a host of affirmative

defenses. Meanwhile, the other five remaining Original Defendants moved to dismiss.

       On December 8, 2011, Magistrate Judge Maureen Kelly, to whom the case had

been reassigned, directed Riley to respond to the new motion to dismiss by January 5,

2012. On January 4, 2012, the District Court received a motion from Riley seeking “an

enlargement of time in which to file and perfect [his] cross-motion to amended and

supplemental complaint in opposition to Defendants[’] partial motion to dismiss amended

complaint.” (Mot. docketed on Jan. 4, 2012, at 1.) The next day, Magistrate Judge Kelly

issued an order holding as follows: (1) to the extent Riley sought to file a third amended

complaint, that request was denied; (2) his request for a 90-day extension of the time to



                                             4
respond to the pending motion to dismiss was denied for lack of good cause; and (3) his

response to the motion to dismiss was due by February 14, 2012.

       On February 16, 2012, the District Court received from Riley a “Cross-Motion to

Amend and Supplement the [Second Amended] Complaint.” The next day, Magistrate

Judge Kelly issued an order that (1) struck this new submission as having been

improvidently filed, and (2) explained that if Riley did not file a response to the pending

motion to dismiss by February 29, 2012, that motion would be decided without a

response. Riley appealed that order to the District Court, but the appeal was denied.

       On March 16, 2012, at which point Riley still had yet to file a response to the

motion to dismiss, Magistrate Judge Kelly ordered him to show cause by March 30,

2012, why his entire case should not be dismissed for failure to prosecute. In his

response to that order, Riley stated that he was “literally handcuffed” by Magistrate Judge

Kelly’s earlier order denying him the opportunity to file a third amended complaint, and

that he was “in need of guidance from the Court on how to correct the defect highlighted

by the Defendants if this Court will not allow [him] to file[] yet another amended

complaint.” (Resp. to Show Cause Order, docketed Apr. 2, 2012, at 2.) Riley further

stated that, “[a]lternatively, to expedite this matter without causing anymore strain on the

Court, . . . [Plaintiff] request[s] the Court to make it’s [sic] ruling on Defendants[’] partial

motion to dismiss because Plaintiff does not know what other recourse to take.” (Id.)

       After receiving Riley’s response, Magistrate Judge Kelly issued a report

recommending that the District Court dismiss the entire action for failure to prosecute. In

doing so, Magistrate Judge Kelly concluded that a balancing of the six factors set forth in

                                               5
Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984), weighed in favor

of dismissal. On May 14, 2012, the District Court adopted Magistrate Judge Kelly’s

report and dismissed the case for failure to prosecute. This appeal followed.1

                                             II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review

the District Court’s dismissal of Riley’s action for failure to prosecute for abuse of

discretion. See Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 260 n.1 (3d Cir.

2011). To determine if the District Court abused its discretion, “we review the manner in

which [the court] balanced the six factors enumerated in [Poulis].” In re Asbestos Prods.

Liab. Litig. (No. VI), 718 F.3d 236, 246 (3d Cir. 2013). Those six factors are:

              (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, 747 F.2d at 868 (emphasis omitted). “In balancing the Poulis factors, we do not

have a ‘magic formula’ or ‘mechanical calculation’ to determine whether a District Court

abused its discretion in dismissing a plaintiff’s case.” Briscoe v. Klaus, 538 F.3d 252,

263 (3d Cir. 2008) (quoting Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992)).




1
 The record reflects that Riley submitted his notice of appeal to prison authorities on
June 13, 2012, exactly thirty days after the District Court entered its final order.
Accordingly, this appeal is timely. See Fed. R. App. P. 4(a)(1)(A); Houston v. Lack, 487
U.S. 266, 276 (1988).
                                              6
Additionally, “not all of the Poulis factors need be satisfied in order to dismiss [an

action].” Mindek, 964 F.2d at 1373.

       The District Court, by virtue of adopting Magistrate Judge Kelly’s report,

concluded that the first five Poulis factors weighed in favor of dismissal, and that the

sixth factor was neutral. We review each of these factors below, considering them in the

order in which they were addressed in that report.

       Magistrate Judge Kelly began by addressing the first, third, and fourth Poulis

factors together, concluding that they each weighed against Riley. We agree as to the

first Poulis factor (the extent of the party’s responsibility) and the third factor (a history

of dilatoriness). See Briscoe, 538 F.3d at 258-59 (“[I]t is logical to hold a pro se plaintiff

personally responsible for delays in his case because a pro se plaintiff is solely

responsible for the progress of his case . . . .”); Adams v. Trs. of the N.J. Brewery

Employees’ Pension Trust Fund, 29 F.3d 863, 874 (3d Cir. 1994) (“Extensive or repeated

delay or delinquency constitutes a history of dilatoriness . . . .”). However, because

Riley’s response to the March 2012 show cause order reflected his confusion as to how to

proceed, we are not necessarily convinced that the fourth factor (willful or bad faith

conduct) should have weighed against him. Cf. Briscoe, 538 F.3d at 262 n.5 (“We note

that, even assuming that Briscoe did not attend the pretrial conference on his own accord,

it does not necessarily follow that his purpose was to delay the proceedings.”).

       Magistrate Judge Kelly next considered the second factor (prejudice to the

adversary). She may have overstated the extent of the prejudice here by labeling it

“huge.” That said, in light of Riley’s failure to comply with her multiple orders directing

                                               7
him to respond to the motion to dismiss, there was at least some prejudice in this case,

particularly given that the case had already been pending for more than three years. See

Bull v. UPS, 665 F.3d 68, 80 (3d Cir. 2012) (stating that “the inevitable dimming of

witnesses’ memories” is an example of prejudice under Poulis) (quotation marks and

citation omitted).

       Magistrate Judge Kelly next addressed the sixth factor (meritoriousness of the

claims and defenses), concluding that this factor would be weighed neither in Riley’s

favor nor against him. Having reviewed the most recent round of pleadings, we cannot

conclude that this factor should have instead been weighed in Riley’s favor. See Adams,

29 F.3d at 876-77 (“Where a plaintiff makes out a prima facie case, but the defendant

raises a prima facie defense, the [sixth] factor may not weigh in favor of the plaintiff.”).

       The fifth factor (effectiveness of alternative sanctions) was the last factor

considered. Because Riley was (and still is) proceeding pro se and in forma pauperis, the

District Court did not err in adopting Magistrate Judge Kelly’s conclusion that there were

no appropriate sanctions other than dismissal. See Briscoe, 538 F.3d at 262-63 (“[W]here

a plaintiff is proceeding pro se, and moreover, is proceeding in forma pauperis, we have

upheld the District Court’s conclusion that no alternative sanctions existed because

monetary sanctions, including attorney’s fees, ‘would not be an effective alternative.’”)

(quoting Emerson v. Thiel Coll., 296 F.3d 184, 191 (3d Cir. 2002) (per curiam)).

Nevertheless, Riley claims that the District Court should have considered partial

dismissal of the case — that is, dismissal only as to the five Original Defendants whose

motion to dismiss was pending — as an alternative sanction. We disagree. Given that

                                              8
Riley’s second amended complaint did not allege any claims against those five

defendants, the dismissal of those defendants would hardly have been a sanction against

him, let alone an effective one.

       In sum, at least four of the Poulis factors weighed against Riley, and none weighed

in his favor. Under the circumstances of this case, we cannot conclude that the District

Court abused its discretion in adopting Magistrate Judge Kelly’s conclusion that a

balancing of the Poulis factors weighed in favor of dismissing the case. Accordingly, we

will affirm the District Court’s judgment.




                                             9
