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


8-6-2008

Briscoe v. Klaus
Precedential or Non-Precedential: Precedential

Docket No. 04-4162




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                                              PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                          No. 04-4162


                     ORLAND BRISCOE,
                                               Appellant
                                v.

      KENNETH KLAUS; MARTIN L. DRAGOVICH;
         MILLER; STENDER; SMITH; PRAVE;
      PELTER; LEGGORE; MOORE; ALIARNELLO;
          MARSHA HANCOCK; JOHN DOE


       On Appeal from the United States District Court
           for the Middle District of Pennsylvania
                   (D.C. No. 01-cv-01253)
        District Judge: Honorable James M. Munley


                    Argued April 16, 2008

 Before: AMBRO, FISHER and MICHEL,* Circuit Judges.


       *
       The Honorable Paul R. Michel, Chief Judge of the
United States Court of Appeals for the Federal Circuit, sitting by
designation.
                  (Filed: August 6, 2008)

Neelie S. Simmons (Argued)
Jones Day
500 Grant Street, 31st Floor
Pittsburgh, PA 15219
       Attorney for Appellant Orland Briscoe

David C. Dagle (Argued)
Daniel K. Natirboff
Capozzi & Associates
2933 North Front Street
Harrisburg, PA 17110
       Attorneys for Appellee, Kenneth Klaus

Raymond W. Dorian
Vincent R. Mazeski (Argued)
Pennsylvania Department of Corrections
Office of Chief Counsel
55 Utley Drive
P.O. Box 598
Camp Hill, PA 17011-0000
       Attorneys for Appellees, Martin Dragovich,
       Miller, Raymond Stender, Prave,
       Clifford Pelter, Paul Leggore, Moore,
       Aliarnello, Marsha Hancock, and Smith



                OPINION OF THE COURT



                             2
FISHER, Circuit Judge.

        Orland Briscoe appeals the District Court’s decision to
dismiss his case for failure to prosecute and comply with its
orders pursuant to Federal Rule of Civil Procedure 41(b).
Briscoe’s complaint alleged that several prison officials at the
State Correctional Institution at Camp Hill (“SCI-Camp Hill”)
and the State Correctional Institution at Pittsburgh (“SCI-
Pittsburgh”) violated his constitutional rights under the Eighth
and Fourteenth Amendments. After prison officials notified the
District Court that Briscoe refused to be transported to the final
pretrial conference, the District Court cancelled the pretrial
conference, and two days later, it dismissed Briscoe’s case. We
hold that the District Court abused its discretion in dismissing
Briscoe’s case sua sponte without providing him with a full and
fair opportunity to be heard regarding the reason he failed to
attend the pretrial conference. For the following reasons, we
will vacate the District Court’s order and remand the case to the
District Court for proceedings consistent with this opinion.

                                I.

       On July 6, 2001, Orland Briscoe filed a complaint in the
District Court for the Middle District of Pennsylvania. Briscoe,
a Pennsylvania state prisoner, alleged that two incidents
occurred in which prison officials at SCI-Camp Hill and SCI-
Pittsburgh violated his constitutional rights.

       The first instance occurred on December 17, 1999 when
several Corrections Officers (“COs”) arrived to return Briscoe

                                3
to his cell after he had been released from the infirmary at SCI-
Camp Hill. He alleged that Sergeant Paul Leggore, CO Moore,
CO Nicholas Prave, CO James Zihmer, Lieutenant Miller, and
CO Anthony Alianiello entered his infirmary cell, and
proceeded to strike him with a riot shield, beat him, kick him,
and carry him to the strip search area. He was then strip
searched in the presence of Leggore, Prave, Alianiello, Zihmer,
CO Kenneth Klaus, CO Adam Huber, and CO Randy
McCauslin.

        The second instance occurred on April 12, 2000, when
several COs transferred Briscoe from SCI-Camp Hill to SCI-
Pittsburgh. The COs took Briscoe to the strip search area, and
the following officers conducted the search: Leggore,
McCauslin, Prave, Klaus, Smith, CO Clifford Pelter, CO
Edward Hatcher, and CO Raymond Stender. After Briscoe
failed to follow the COs’ instructions during the strip search,
Smith ordered the officers to take him down to the floor. While
he was on the floor, Klaus kneed him in the face. The COs then
took Briscoe to the van to transfer him. During the transfer,
Briscoe claims that Stender elbowed him in the mouth,
damaging one of his teeth. He also claims that Smith used an
electronic immobilizing device on him.1 Upon arriving at SCI-
Pittsburgh, the nurse, Marsha Hancock, examined and treated
Briscoe.

       Based on these facts, Briscoe instituted this litigation
against the prison officials pursuant to 42 U.S.C. § 1983,

       1
      Based on the incidents on April 12, 2000, the
Department of Corrections suspended Smith and Klaus.

                               4
alleging that the prison officials violated his Eighth and
Fourteenth Amendment rights in the following ways: (1) Miller,
Leggore, Moore, Alianiello, Prave, and Zihmer used excessive
force on him in the infirmary cell on December 17, 1999;
(2) Miller, Leggore, Moore, Alianiello, Prave, and Zihmer used
excessive force on him during the strip search on December 17,
1999; (3) Miller, Stender, Leggore, McCauslin, Pelter, Prave,
Smith, and Klaus used excessive force on him during the strip
search on April 12, 2000; (4) Stender and Smith used excessive
force on him while transporting him to SCI-Pittsburgh on April
12, 2000; and (5) Nurse Hancock refused to provide him with
the medical treatment he requested.

        In July 2002, Briscoe did not attend his scheduled
deposition. On September 4, 2002, defendant Klaus filed a
motion to dismiss Briscoe’s case for failure to prosecute. On
September 30, 2002, Briscoe submitted a brief in opposition to
the motion. In it, he explained that, prior to the hearing, prison
officials had confiscated all of his legal documents and his
clothing. He attached a declaration from an inmate who
supported his assertion of these facts. He further stated that he
had contacted Klaus’ counsel, requesting that the deposition be
rescheduled when he had access to all of these materials. On
March 19, 2003, the District Court denied Klaus’ motion to
dismiss.

        After completion of discovery, the parties filed cross-
motions for summary judgment. On March 31, 2004, the
District Court denied Briscoe’s motion for summary judgment,
but granted the defendants’ motion for summary judgment in
part, finding that several of the defendants had not violated

                                5
Briscoe’s Eighth and Fourteenth Amendment rights.
Specifically, the District Court granted summary judgment in
favor of the following defendants: (1) Miller, Leggore, Moore,
Alianiello, Prave, and Zihmer, finding that they had not used
excessive force during the strip search on December 17, 1999;
(2) Miller, Stender, Leggore, McCauslin, Pelter, and Prave,
finding that they had not used excessive force during the strip
search on April 12, 2000; and (3) Nurse Hancock, finding that
she had not acted with deliberate indifference in treating
Briscoe. Therefore, Briscoe’s remaining claims that survived
summary judgment were: (1) Miller, Leggore, Moore,
Alianiello, Prave, and Zihmer used excessive force on him in the
infirmary cell on December 17, 1999; (2) Smith and Klaus used
excessive force on him during the strip search on April 12,
2000; and (3) Stender and Smith used excessive force on him
while transporting him to SCI-Pittsburgh on April 12, 2000.

        On August 5, 2004, the District Court filed a Scheduling
Order.      It scheduled the final pretrial conference for
September 9, 2004, and it set the trial to begin on September 27,
2004. Briscoe filed a motion, requesting a sixty-day extension
to file his jury instructions and subpoena his witnesses. The
District Court did not rule on this motion.

       On September 8, 2004, the District Court entered an
order, stating that it had been “notifi[ed] from Plaintiff’s
custodian, the State Correctional Institution at Fayette, Labelle,
Pennsylvania, that the Plaintiff is refusing to be transported for
purposes of attending the Final Pretrial Conference scheduled in
this matter for Thursday[,] September, 9, 2004.” As a result of
this notification, it entered the following order:

                                6
               1.     The Plaintiff’s refusal to appear at
       the Final Pretrial Conference in this matter could
       be construed as a failure to prosecute the action,
       as well as a failure to comply with the rules of
       court and will result in an involuntary dismissal of
       the action, on the merits, pursuant to Fed. R. Civ.
       P. 41(b);

              2.     The Clerk of Court is hereby
       directed to serve this Order on the Plaintiff’s
       custodian via facsimile;

              3.     Plaintiff’s custodian is ordered to
       serve this Order upon the Plaintiff forthwith;

              4.     Plaintiff’s custodian is further
       ordered to notify this Court of the Plaintiff’s
       status by 3:00 p.m. on this date.

Pursuant to this order, the prison officials notified the District
Court that Briscoe continued to refuse to be transported. Thus,
the District Court entered a second order, cancelling the
conference.

       On September 10, 2004, the District Court dismissed
Briscoe’s case for failure to prosecute and comply with its
orders pursuant to Federal Rule of Civil Procedure 41(b). In its
order, the court considered the six factors applicable to
dismissing a case pursuant to Rule 41(b) as set forth in Poulis v.
State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir.
1984). It noted that Briscoe’s claims “were based in some

                                7
merit” because they “had successfully cleared the summary
judgment hurdle and were in posture to proceed to trial.”
However, it found that the remaining factors were not in favor
of Briscoe. It found that Briscoe was personally responsible for
his refusal to attend the conference, his refusal was willful
because he had ignored the court’s specific warning to him, and
his failure to attend the conference prejudiced the defendants
because the defendants could not “effectively prepare for trial so
as to bring the litigation to a resolution.” Additionally, it found
that, although Briscoe did not have a history of dilatoriness, his
refusal to attend the conference was a dilatory tactic in light of
his request for an extension of time to comply with the court’s
order regarding pretrial documentation. Finally, it found that
alternative sanctions were unavailable in the present case.
Based on its evaluation of these factors, the District Court
dismissed Briscoe’s case. Its order stated:

             1.      The Plaintiff’s action is
       DISMISSED ON THE MERITS for failure to
       prosecute and comply with orders of [the] Court
       pursuant to Fed. R. Civ. P. 41(b);

           2.      The Clerk of Court is directed to
       CLOSE this case;

              3.     Any appeal from this Order will be
       deemed frivolous, lacking in probable cause and
       not in good faith.




                                8
On September 29, 2004, Briscoe filed a timely notice of appeal
to this Court.2

                                II.

       The District Court had jurisdiction over this case
pursuant to 28 U.S.C. § 1343(a)(3), and we have jurisdiction
over this appeal pursuant to 28 U.S.C. § 1291. We review a
District Court’s decision to dismiss a plaintiff’s case pursuant to
Federal Rule of Civil Procedure 41(b) for an abuse of discretion.
Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002).
“While we defer to the District Court’s discretion, dismissal
with prejudice is only appropriate in limited circumstances and
doubts should be resolved in favor of reaching a decision on the
merits.” Id.

                               III.

       Federal Rule of Civil Procedure 41(b) permits a District
Court to dismiss a plaintiff’s case for failure to prosecute. See
Fed. R. Civ. P. 41(b) (“If the plaintiff fails to prosecute or to

       2
        Additionally, on December 1, 2004, Briscoe wrote a
letter to Chief Judge Vanaskie of the Middle District of
Pennsylvania. In this letter, Briscoe alleged that his failure to
attend the pretrial conference was due to the prison officials’
refusal to transport him. He alleged that the District Court had
erred in dismissing his case without providing him with an
opportunity to respond to the prison officials’ statements
regarding his refusal to be transported. He requested
reinstatement of his case.

                                9
comply with these rules or a court order, a defendant may move
to dismiss the action or any claim against it.”). To determine if
the District Court abused its discretion in dismissing the case,
“we will be guided by the manner in which the trial court
balanced the following factors, . . . and whether the record
supports its findings: (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.” Poulis, 747 F.2d at 868 (emphasis in original).

        We will conduct an analysis of the Poulis factors below,
but first, we note that “dismissals with prejudice . . . are drastic
sanctions.” Id. at 867-68. As a result, it is imperative that the
District Court have a full understanding of the surrounding facts
and circumstances pertinent to the Poulis factors before it
undertakes its analysis. Cf. Emerson, 296 F.3d at 191 (affirming
the District Court’s order dismissing the plaintiff’s case, and in
doing so, noting that the District Court gave the plaintiff
“numerous extensions of time[, . . . and] the opportunity to
substantiate that he was unable to proceed for medical reasons”).
While a District Court may dismiss a case sua sponte, see
Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 341 (3d
Cir. 1982), it should use caution in doing so because it may not
have acquired knowledge of the facts it needs to make an
informed decision. With this caution in mind, we hold that the
District Court should provide the plaintiff with an opportunity
to explain his reasons for failing to prosecute the case or comply

                                10
with its orders prior to dismissing a case sua sponte. See
Emerson, 296 F.3d at 191. Our review of the District Court’s
application of the Poulis factors in this case demonstrates the
inherent problem with dismissing a case without providing the
plaintiff with an opportunity to be heard.

       A.     Evaluation of the Six Poulis Factors

              1.      The extent of the party’s personal
                      responsibility.

       The District Court found that Briscoe was personally
responsible for his refusal to attend the conference, particularly
because he is proceeding pro se. Although the District Court
correctly described the law, the record was insufficient for it to
conclude that Briscoe was personally responsible without first
providing him with an opportunity to explain why he failed to
attend the conference.

       As a legal proposition, the District Court is correct in
stating that a pro se plaintiff is responsible for his failure to
attend a pretrial conference or otherwise comply with a court’s
orders. Compare Emerson, 296 F.3d at 190, with Poulis, 747
F.2d at 868. In Emerson, we found that the District Court did
not abuse its discretion in dismissing the plaintiff’s case, and in
doing so, we implicitly affirmed the District Court’s finding that
a pro se plaintiff is personally responsible for complying with
the court’s orders. 296 F.3d at 190-91. Moreover, it 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, whereas a plaintiff represented by counsel

                                11
relies, at least in part, on his or her attorney. See Poulis, 747
F.2d at 868 (stating that “a client cannot always avoid the
consequences of the acts or omissions of its counsel,” but
considering “the [plaintiffs’] lack of responsibility for their
counsel’s dilatory conduct” in conducting the balancing of the
six factors). Therefore, the District Court was correct in stating
that a pro se plaintiff is responsible for his failure to attend a
pretrial conference or otherwise comply with a court’s orders.

        However, the record in the present case is insufficient to
support the District Court’s finding that Briscoe “refus[ed] to
attend the pretrial conference” and thus “fail[ed] to comply with
orders of th[e] court.” The District Court made this finding
based upon its communications with prison officials, and thus,
it assumed that the prison officials’ correspondence was
accurate and truthful. It never, however, sought Briscoe’s
explanation regarding why he failed to attend the hearing and
comply with the order. Briscoe now argues to this Court that the
prison officials’ account of the incident was inaccurate and
dishonest, and the reason he could not attend the conference was
because the prison officials refused to transport him. As
discussed above, the District Court should have provided
Briscoe with the opportunity to explain his failure to attend the
conference, thus gathering a full understanding of the facts.
Because it did not, the record was insufficient for the District
Court to find that Briscoe was personally responsible for failing
to attend the conference.




                               12
              2.     The prejudice to the adversary.

        The District Court found that Briscoe’s failure to attend
the conference prejudiced the defendants because the defendants
could not “effectively prepare for trial so as to bring the
litigation to a resolution.” Again, while the District Court
correctly described the law, the record was insufficient for it to
conclude that Briscoe’s conduct prejudiced the defendants
without providing Briscoe with an opportunity to explain why
he failed to attend the conference.

        We have stated that “[e]vidence of prejudice to an
adversary would bear substantial weight in support of a
dismissal or default judgment.” Adams v. Trustees of N.J.
Brewery Employees’ Pension Trust Fund, 29 F.3d 863, 873-74
(3d Cir. 1994) (internal quotation marks and citation omitted).
Generally, prejudice includes “the irretrievable loss of evidence,
the inevitable dimming of witnesses’ memories, or the excessive
and possibly irremediable burdens or costs imposed on the
opposing party.” Id. at 874 (internal quotation marks and
citations omitted). In the present case, the defendants were not
prejudiced based on this general description of prejudice, i.e.,
Briscoe’s failure to attend the conference did not cause a loss of
evidence, a dimming of the witnesses’ memories, or excessive
costs. See id.

       However, prejudice is not limited to “irremediable” or
“irreparable” harm. Id.; see also Ware v. Rodale Press, Inc.,
322 F.3d 218, 222 (3d Cir. 2003); Curtis T. Bedwell & Sons,
Inc. v. Int’l Fidelity Ins. Co., 843 F.2d 683, 693-94 (3d Cir.
1988). It also includes “the burden imposed by impeding a

                               13
party’s ability to prepare effectively a full and complete trial
strategy.” Ware, 322 F.3d at 222. Oftentimes, this type of
prejudice involves disputes between the parties on discovery
matters because the defendants were deprived of necessary
information or had to expend costs to obtain court orders for
compliance. See, e.g., Poulis, 747 F.2d at 868 (finding that the
defendants were prejudiced where the plaintiffs did not answer
interrogatories, the defendants had to file a motion to compel the
plaintiffs’ answers, and the defendant had “to file its pre-trial
statement without the opportunity to review plaintiffs’ pretrial
statement which was due to be filed first”); Ware, 322 F.3d at
220-23 (affirming the District Court’s conclusion that a
defendant had been prejudiced where the plaintiff repeatedly
ignored the defendant’s discovery request for the plaintiff’s
computation of damages and did not provide it until one week
prior to trial).

         The District Court was correct in extending this type of
deprivation of necessary information to final pretrial
conferences. At the final pretrial conference, the District Court
“formulate[s] a trial plan, including a plan to facilitate the
admission of evidence.” Fed. R. Civ. P. 16(e). By this time,
each party has fully disclosed the evidence it plans to present at
trial. If the plaintiff has not disclosed all of its evidence prior to
trial or fails to attend the conference, the District Court would
not be able to properly formulate a plan, prejudicing the
defendants in their trial preparations.

       In the present case, assuming Briscoe’s failure to attend
the conference was of his own accord, the District Court was
unable to formulate the trial plan, prejudicing the defendants to

                                 14
some extent.3 However, the District Court’s finding is
dependent on the factual premise that Briscoe did not attend the
hearing of his own accord. If it had conducted a hearing and
found Briscoe’s assertion to be true, any prejudice to these
defendants would be negated because, under those facts, the
defendants themselves caused Briscoe’s no-show. Therefore,
the District Court could not have reached its conclusion as to
prejudice without providing Briscoe with an opportunity to be
heard.

              3.     A history of dilatoriness.

        The District Court found that Briscoe did not have a
history of dilatoriness, but that his refusal to attend the
conference was a dilatory tactic in light of his request for an
extension of time to comply with the court’s order regarding
pretrial documentation. From this “refusal,” the District Court
found that it “[wa]s faced with a complete lack of cooperation”
on Briscoe’s part. We agree with the District Court that Briscoe
did not have a history of dilatoriness. Regarding whether this
instance was a dilatory tactic, we find that the evidence in the
record is not sufficient to support that finding, and even if it
was, the District Court should not have utilized a single instance
of dilatory behavior in balancing the Poulis factors.


       3
         While the defendants would be prejudiced, we note that
there are varying degrees of prejudice, and courts should
consider the degree of prejudice that the defendant suffered
accordingly when conducting the balancing of the Poulis
factors.

                               15
        “Extensive or repeated delay or delinquency constitutes
a history of dilatoriness, such as consistent non-response to
interrogatories, or consistent tardiness in complying with court
orders.” Adams, 29 F.3d at 874; see also Ware, 322 F.3d at 224
(finding that a history of dilatory conduct existed because the
plaintiffs “failed repeatedly” to provide a damages calculation
for the defendant); Emerson, 296 F.3d at 191 (finding that a
history of dilatory conduct existed because the “procedural
history of this case reflects continuous dilatoriness” as
demonstrated by the plaintiff’s multiple requests for stays and
failure to comply with multiple deadlines). For example, in
Poulis, the plaintiffs never sought discovery, did not answer
discovery requests, and did not file a pretrial statement by the
court’s established deadline, and the District Court dismissed the
plaintiffs’ case. 747 F.2d at 865. We remanded to the District
Court for it to consider whether alternative sanctions were
available. Id. at 866. It ordered the parties to file briefs, the
plaintiffs’ brief was four days late, and it once again dismissed
the case. Id. at 866-67. Based on this evidence, we held that a
“consistent delay” was present, and thus, it met the requirement
for a “history of dilatoriness.” Id. at 868.

        However, conduct that occurs one or two times is
insufficient to demonstrate a “history of dilatoriness.” See
Scarborough v. Eubanks, 747 F.2d 871, 875 (3d Cir. 1984)
(finding that, although the plaintiff’s pretrial documents were
“filed inexcusably late,” it was not the same history of
dilatoriness present in Poulis, 747 F.2d at 868); Donnelly v.
Johns-Manville Sales Corp., 677 F.2d 339, 343 (3d Cir. 1982)
(reinstating plaintiff’s case where the plaintiff acted dilatory on
one occasion but no evidence existed that the plaintiff’s

                                16
behavior was willful). Furthermore, we must evaluate “a party’s
problematic acts . . . in light of its behavior over the life of the
case.” Adams, 29 F.3d at 875 (citing Dyotherm Corp. v. Turbo
Machine Co., 392 F.2d 146 (3d Cir. 1968)). In Dyotherm,
plaintiff’s counsel did not inform the court that he was not going
to secure separate patent counsel, in which case the trial would
have begun three months earlier. 392 F.2d at 147. He then
arrived late to the first day of trial, informed the judge that his
principal witness could not appear for another week and another
witness was still unknown to him, and arrived late the
subsequent day still unable to present a witness. Id. As a result,
the District Court dismissed the plaintiff’s case. Id. However,
we reversed, finding that the plaintiff had not engaged in any
dilatory tactics during the first two-and-a-half years that the case
had been pending, and thus, “the district court should not have
applied the harsh penalty of dismissal.” Id. at 149.

        As noted, we agree with the District Court’s conclusion
that Briscoe’s conduct did not demonstrate a “history of
dilatoriness.” Even assuming that Briscoe “refused” to attend
the conference, his refusal was only one instance of dilatory
conduct.4 Thus, unlike in Poulis, Emerson, and Ware, Briscoe

       4
        The defendants argue that Briscoe was also dilatory in
failing to attend his deposition. However, the District Court
previously found that he was not fully responsible for his failure
to attend the deposition, and his actions were not willful or in
bad faith. Considering this prior finding, as well as Briscoe’s
allegations that he chose not to attend the deposition because all
of his personal belongings, including his clothing, had been
removed from his cell, we cannot find that the District Court

                                17
did not engage in any prior instances of dilatory conduct that
could constitute a continuous stream of dilatory conduct.
Moreover, to the extent that the District Court relied on
Briscoe’s failure to attend the conference as a “dilatory tactic”
in its balancing of the Poulis factors, it should have considered
this conduct in light of the fact that Briscoe had consistently met
deadlines for past motions and had prosecuted his case for over
three years. See Dyotherm, 392 F.2d at 149. Thus, even if the
record supported the District Court’s finding that Briscoe was
dilatory, it should not have weighed this one instance of dilatory
conduct against Briscoe in its balancing of the Poulis factors.

       Finally, we do not think this record so clearly supports
the District Court’s conclusion that Briscoe was dilatory in this
instance. Its finding is again dependent on the premise that
Briscoe refused to attend the pretrial conference. As discussed
above, the District Court should have provided Briscoe with the
opportunity to explain his failure to attend the conference.
Because it did not, the record was insufficient for the District
Court to find that Briscoe refused to attend the conference as a
dilatory tactic.




abused its discretion in choosing not to consider this conduct in
determining whether Briscoe had a history of dilatory conduct.
Thus, the defendants’ argument that Briscoe had engaged in
more than one instance of dilatory conduct fails.

                                18
              4.     Whether the conduct of the party or the
                     attorney was willful or in bad faith.

        The District Court found that Briscoe was “willful”
because he did not attend the conference despite the court’s
express warning that it could dismiss his claims. Although the
District Court correctly described the law, the record does not
support its finding that Briscoe was willful because it did not
provide Briscoe with an opportunity to explain the reason he
failed to attend the hearing.

        Under this factor, the District Court must consider
whether the conduct was “the type of willful or contumacious
behavior which was characterized as flagrant bad faith.” Adams,
29 F.3d at 875 (internal quotation marks and citation omitted).
Generally, “[w]illfulness involves intentional or self-serving
behavior.” Id. If the conduct is merely negligent or inadvertent,
we will not call the conduct “contumacious.” See Poulis, 747
F.2d at 868-69 (finding that plaintiff’s counsel’s behavior was
not contumacious because, although he had missed deadlines,
there was no suggestion that his delays were for any reason
other than his and his wife’s poor health); see also Emerson, 296
F.3d at 191 (finding bad faith because the conduct went beyond
mere negligence). Therefore, the District Court was correct in
finding that, where a plaintiff refuses to attend a final pretrial
conference in an attempt to delay the trial, his refusal would be
“willful.”

      However, the record is insufficient to support the District
Court’s finding that Briscoe refused to attend the pretrial
conference. As discussed in the three preceding factors, the

                               19
District Court should have provided Briscoe with a full and fair
opportunity to present the reasons he did not attend the
conference prior to finding that he “refused” to attend.5 Because
it did not, the record is insufficient to support its finding that
Briscoe willfully refused to attend the conference with the
purpose to delay the proceedings.

              5.      The effectiveness of sanctions other than
                      dismissal, which entails an analysis of
                      alternative sanctions.

       The District Court found that alternative sanctions were
not available in this case because “[w]hen a Plaintiff fails to
prosecute his action, outside of dismissal of the action, the Court
cannot envision a sanction that would be appropriate.” It further
found that monetary sanctions, including fines, costs, or
payment of attorneys’ fees were unavailable. We agree with the
District Court’s conclusion.

       A District Court must consider the availability of
sanctions alternative to dismissal. Poulis, 747 F.2d at 869.
Where an attorney has caused the delay and noncompliance in
the proceedings, we have noted that “[u]nder the Federal Rules
of Civil Procedure and the 1983 amendments, the district court
is specifically authorized to impose on an attorney those
expenses, including attorneys’ fees, caused by unjustified failure
to comply with discovery orders or pretrial orders.” Id.

       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.

                                20
However, where 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.” Emerson, 296 F.3d at 191.

       In the present case, Briscoe was proceeding pro se and in
forma pauperis. Because he was proceeding pro se, he had no
attorney upon whom the District Court could impose the
expenses for failing to comply with the court’s orders as in
Poulis. Moreover, both the fact that he was proceeding in forma
pauperis and that he was currently incarcerated indicated that he
would not be able to pay monetary sanctions. See Emerson, 296
F.3d at 191. Therefore, the District Court did not abuse its
discretion in finding that there were no alternative sanctions
available to it, and the record supported its finding.6

              6.     The meritoriousness of the claim or
                     defense.

        The District Court found that Briscoe’s claims “were
based in some merit” because they “had successfully cleared the
summary judgment hurdle and were in posture to proceed to
trial.” We agree with the District Court’s conclusion.



       6
         Although Briscoe argues that the District Court did not
consider the availability of alternative sanctions as thoroughly
as it should have, he does not point to any alternative sanctions
that were available to the District Court in this case.

                               21
       Generally, in determining whether a plaintiff’s claim is
meritorious, we use the standard for a Rule 12(b)(6) motion to
dismiss for failure to state a claim. Poulis, 747 F.2d at 869-70.
Thus, we deem “[a] claim, or defense . . . meritorious when the
allegations of the pleadings, if established at trial, would support
recovery by plaintiff or would constitute a complete defense.”
Id.

       In the present case, several of Briscoe’s claims survived
the summary judgment stage of litigation. Therefore, viewing
the facts in the light most favorable to Briscoe, his claims
presented genuine issues of material fact, necessitating a trial on
the issues. See Fed. R. Civ. P. 56(c); Moore v. City of Phila.,
461 F.3d 331, 340 (3d Cir. 2006). A fortiori, these claims
surpassed the Rule 12(b)(6) motion to dismiss standard, and
under the Poulis analysis, his claims are deemed to have merit.

       B.      Balancing of the Poulis Factors

       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. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992).
While “no single Poulis factor is dispositive,” Ware, 322 F.3d
at 222, we have also made it clear that “not all of the Poulis
factors need be satisfied in order to dismiss a complaint.”
Mindek, 964 F.2d at 1373.

       In the present case, the only factor that is clearly in favor
of the defendants is that the District Court did not have any
alternative sanctions available to it. The factors that clearly

                                22
favor Briscoe are that his remaining claims have some merit,
and he does not have a history of dilatoriness. However, these
factors are not dispositive of the inquiry as to whether the
District Court abused its discretion in dismissing the case
because there is no “magic formula,” and we must look at the
District Court’s balancing as a whole, including whether the
record supported its findings. See Poulis, 747 F.2d at 868.

        Turning to the remaining three factors, the present record
does not support the District Court’s findings as to the extent of
Briscoe’s personal responsibility, the prejudice to the
defendants, or whether Briscoe acted willfully or in bad faith.
See Poulis, 747 F.2d at 868. Although we do not require all of
the factors to be satisfied to find that the District Court did not
abuse its discretion, Mindek, 964 F.2d at 1373, the fact that three
of the six factors have an inadequate foundation (and two of the
six clearly favor Briscoe) demonstrates that the District Court
should have found additional reasons prior to dismissing
Briscoe’s case. Its failure to do so may have impacted its
conclusion to dismiss the case, and thus, it was an abuse of
discretion.

       Therefore, we hold that where, as here, the District Court
does not have the facts necessary to conduct a full analysis of
the Poulis factors, it is not appropriate for the District Court to
dismiss a plaintiff’s case sua sponte. Instead, the District Court
must provide the plaintiff with a full and fair opportunity to be
heard regarding his failure to comply with the court’s orders.
Only after providing that opportunity should the District Court
conduct an analysis of the Poulis factors to determine whether
it should dismiss the plaintiff’s case. As a result, the District

                                23
Court abused its discretion in dismissing this case for failure to
prosecute under Rule 41(b).

                               IV.

      For the foregoing reasons, we will vacate the District
Court’s order and remand for proceedings consistent with this
opinion.




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