Bert Allen, III v. Amer Fedr Govt Empl ( 2009 )

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Precedential or Non-Precedential: Non-Precedential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CLD-91 NOT PRECEDENTIAL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
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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