                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-11-2007

Hunter v. Keller
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2022




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Recommended Citation
"Hunter v. Keller" (2007). 2007 Decisions. Paper 451.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/451


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ALD-350                                                    NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                   NO. 07-2022
                                ________________

                             KENNETH W. HUNTER,

                                          Appellant

                                           v.

                        CHIEF CHARLES KELLER;
                          OFF. RYAN J. NEAL #5;
                         OFF. TYRON MEIK #142;
               HARRISBURG POLICE DEPT., DAUPHIN COUNTY
                  ____________________________________

                   On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                             (D.C. Civ. No. 05-CV-01990)
                   District Judge: Honorable Christopher C. Conner
                   _______________________________________


Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Possible Summary
                 Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  August 23, 2007

       Before: SLOVITER, CHAGARES AND COWEN, CIRCUIT JUDGES.

                             (Filed: September 11, 2007)

                            _______________________

                                    OPINION
                            _______________________



PER CURIAM
       Kenneth W. Hunter appeals from an order of the United States District Court for

the Middle District of Pennsylvania, dismissing his civil rights case for failure to provide

complete discovery responses. We will summarily affirm the District Court’s order, as

the appeal presents no substantial issue. I.O.P. 10.6.

       Shortly after Hunter’s civil rights complaint was removed from state court to

federal court, the District Judge entered a discovery order, setting deadlines for discovery

and dispositive motions. The defendants eventually filed a motion to depose Hunter, and

the District Court granted that motion on February 7, 2006. Hunter refused to comply.

The Court entered an order on April 12, 2006, again directing Hunter to submit to a

deposition, and informing him that failure to do so would result in dismissal of the case.

While he eventually submitted to a deposition and answered interrogatories, he “refused

to discuss his conduct at the time of the events described in the complaint or to identify

the four individuals who witnessed the events.” Hunter further did not answer

Defendants’ interrogatories for more than seven months. Defendants moved to dismiss

the complaint for failure to provide complete discovery responses. The District Court

granted the motion, and Hunter timely appealed.

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

decision for abuse of discretion. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992).

Prior to determining that dismissal is an appropriate sanction, a district court must balance

the following six 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

                                               2
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.” Poulis v. State

Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). The scope of our review of a

district court’s punitive dismissal of a case is very narrow, see Mindek, 964 F.2d at 1373-

74, and our role is limited to determining whether “the court properly balanced the Poulis

factors and whether the record supports its findings,” Livera v. First Nat. State Bank of

New Jersey, 879 F.2d 1186, 1194 (3d Cir. 1989).

       We hold that the District Court properly balanced the Poulis factors. First, the

responsibility for Hunter’s failure to respond falls on him, as he proceeded pro se. See

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

prejudiced, because, given Hunter’s failure to produce the information they requested, they

were unable to prepare a defense to his claims. Third, Hunter’s prior refusal to submit to a

deposition and his delay in answering interrogatories supports a finding that he had a

history of dilatoriness. Fourth, the record supports the District Court’s finding that

although Hunter’s failure to properly respond was not in bad faith, it was willful. Fifth,

the District Court properly found that it could not consider monetary sanctions as an

alternative to dismissal, because Hunter was proceeding in forma pauperis. Although the

District Court did not consider the sixth Poulis factor (meritoriousness of the claim), even

assuming, without deciding, that there was some merit to Hunter’s claims, not all Poulis

factors must weigh in favor of dismissal in order for dismissal to be warranted. See Curtis

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

       For the foregoing reasons, we conclude that the District Court did not abuse its

discretion in dismissing Hunter’s complaint. Accordingly, we will affirm the judgment of

the District Court. The motion for appointment of counsel is denied as moot.




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