                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-18-2009

Bert Allen, III v. Amer Fedr Govt Empl
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3616




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CLD-91                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 08-3616
                                     ___________

                               BERT JOHN ALLEN, III,
                                                 Appellant

                                           v.

        AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES;
         AFL-CIO; NATIONAL COUNCIL OF PRISONS LOCAL C-33;
   ALL KNOWN AND UNKNOWN EMPLOYEES; UNKNOWN TITAN GROUP
                     __________________________

                      Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                               (D.C. Civil No. 06-cv-02213)
                     District Judge: Honorable Thomas I. Vanaskie
                             __________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   January 29, 2009


             Before: RENDELL, HARDIMAN and ROTH, Circuit Judges

                                (Filed: March 18, 2009)
                                       _________

                              OPINION OF THE COURT
                                    _________
PER CURIAM

       Bert John Allen, III, filed pro se this civil rights action pursuant to 28 U.S.C. §

1331, against the American Federation of Government Employees, AFL-CIO, the

National Council of Prisons Local C-33, all known and unknown employees, and the

Titan Group. In his complaint, Allen alleged that Defendants engaged in a conspiracy to

permit torture, rape, and abuse to white Christian inmates throughout the prison system.

In addition, Allen alleged that Defendants retaliated against him because of prior lawsuits

and interfered with his access to the courts. The District Court for the Middle District of

Pennsylvania dismissed his entire claim, sua sponte, as frivolous. Allen timely appealed.

We affirmed the District Court’s dismissal of the conspiracy claims, but vacated the

dismissal of Allen’s retaliation and access to the courts claims and remanded the matter

for further proceedings. Allen v. Am. Fed’n of Gov’t Employees, No. 06-4943, 2008 WL

1823425 (3d Cir. April 24, 2008). On June 25, 2008, the District Court issued an order

directing Allen to file within fifteen days an amended complaint setting forth his claims

of retaliation and access to the courts. An amended claim was not filed. On July 23,

2008, the District Court dismissed the action with prejudice for failure to comply with a

court order pursuant to Fed. R. Civ. P. 41(b)(2). Allen timely appeals. For the foregoing

reasons, we will summarily affirm.

       We review the district court’s dismissal under an abuse of discretion standard. See

Carter v. Albert Einstein Med. Ctr., 804 F.2d 805, 807 (3d Cir. 1986). We acknowledge



                                              2
that dismissal with prejudice is a harsh remedy which a court should resort to only in rare

cases, as the law favors the resolution of a litigant’s claim on the merits. Spain v.

Gallegos, 26 F.3d 439, 454 (3d Cir. 1994). A court may dismiss a case with prejudice for

want of prosecution under Fed. R. Civ. P. 41(b) in order to achieve the orderly and

expeditious disposition of cases, however. Id. Ordinarily, when a court determines either

sua sponte or upon a motion to dismiss for failure to prosecute, the court must consider

the following factors: 1) extent of the party’s personal responsibility; 2) 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 the defense. See Poulis v. State

Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984).

       In this case, the District Court directed Allen to file an amended complaint within

15 days of the order being issued. No complaint was filed on Allen’s behalf. Allen’s

failure to file an amended complaint plausibly signaled to the Court that he was not

pursuing his claim. Moreover, the refusal to file an amended complaint, would have left

the District Court uncertain of the contours of Allen’s claims. Under these particular

circumstances, we do not think it was error that the District Court did not explicitly weigh

the Poulis factors. Allowing the matter to continue would not have helped Allen take

steps to prosecute his claim. See id. (the district court was relieved from addressing the

Poulis factors and correctly dismissed a suit where the plaintiff refused to prosecute her



                                              3
claim); Guyer v. Beard, 907 F.2d 1424, 1429 (3d Cir. 1990) (dismissal of a habeas

petition, without balancing the Poulis factors was proper because the petitioner refused to

obey the district court’s order). The District Court did not abuse its discretion when it

dismissed Allen’s claim for failure to prosecute.         We note that after he filed his

notice of appeal, Allen filed an affidavit with the District Court indicating, perhaps, that

he did not receive the District Court’s order requiring him to respond within 15 days.1 As

the affidavit post-dated the filing of Allen’s notice of appeal, its handling is not properly

before us. The District Court may wish, however, to consider whether Allen’s arguments

provide a basis for reopening the matter. See Fed R. Civ. P. 60(b); Haines v. Kerner 404

U.S. 519, 520-21 (1972).

         Accordingly, we will summarily affirm. See I.O.P. 10.6. The motion for

appointment of counsel is denied. See Tabron v. Grace, 6 F.3d 147, 153-54 (3d Cir.

1993).




  1
   Allen makes this contention more clearly in his notice of appeal and a statement
submitted in support of his appeal.

                                              4
