Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
12-13-2005
Sebrell v. Phila Pol Dept
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3440
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-3440
VERNELL L. SEBRELL,
FOR ALBERT L.M. SEBRELL (Deceased)
v.
PHILADELPHIA POLICE DEPARTMENT;
PHILADELPHIA MEDICAL EXAMINERS
OFFICE; PARA MEDICS; THE CITY OF
PHILADELPHIA
VERNELL L. SEBRELL,
Appellant
On appeal From the United States District Court
For the Eastern District of Pennsylvania
(E.D. Pa. Civ. No. 03-cv-4507)
District Judge: Honorable John P. Fullam, Sr.
_________________________
Submitted Under Third Circuit LAR 34.1(a)
December 13, 2005
Before: BARRY, STAPLETON and GREENBERG, Circuit Judges
(Filed: December 13, 2005)
OPINION
PER CURIAM
Vernell Sebrell appeals pro se from an order of the District Court dismissing her
lawsuit for failure to prosecute. Sebrell filed this civil rights action pursuant to 42 U.S.C.
§ 1983 in the United District Court for the Eastern District of Pennsylvania, alleging,
among other things, that detectives from the Philadelphia Police Department and Medical
Examiner’s Office conducted a faulty investigation of her son’s death in order to protect a
third party and then covered up evidence of their shoddy investigation.
Sebrell was originally denied permission to proceed in forma pauperis in the
District Court. However, she successfully appealed that decision in this court and, on
remand, was granted leave to proceed in forma pauperis. See Sebrell v. Phila. Police
Dep’t, No. 03-3460 (3d Cir. Mar. 1, 2004). After the case was remanded, in keeping with
the procedures for in forma pauperis plaintiffs, the District Court ordered the United
States Marshals Service to serve process of the summons and complaint on the
defendants.
On May 19, 2004, the Marshals Service wrote to Sebrell to inform her that its
attempt to effect service was unsuccessful due to flaws in the forms (known as USM-285
forms) that she had completed. See Docket #15, Ex. 1. The letter explained that although
Sebrell had listed the District Attorney Lynne Abraham as the person to receive service,
the District Attorney would not accept service because she was not named as a defendant
in the complaint. The only named defendants in Sebrell’s complaint were “Philadelphia
Police Department,” “Philadelphia Medical Examiners Office,” and “Para Medics.” The
letter further explained that the Marshals Service attempted to serve the complaint on
these three defendants at the City Solicitors Office, but that this attempt was unsuccessful
because the words “City of Philadelphia” must precede the names of each of these
defendants in the caption of the complaint. The letter expressly stated that service of the
complaint could only be made if Sebrell amended the caption to list the defendants as
“The City of Philadelphia Police Department,” “The City of Philadelphia Medical
Examiners Office,” and “The City of Philadelphia Fire Department.” Finally, the letter
advised Sebrell that, after she amended the caption in the District Court, she should
complete and return three more USM-285 forms reflecting the names of the defendants,
as modified.
Despite these explicit instructions, Sebrell did not amend the caption. Instead, she
filed a “Motion to compel U.S. Marshals to Serve Summons to District Attorney’s office
as order states,” arguing that the Marshals failed to do their job when they refused to
serve the complaint on the District Attorney. To enable Sebrell’s suit to go forward, the
District Court construed this motion as a request to amend the caption of the complaint
and ordered that the caption be amended to name the “City of Philadelphia” as the
defendant, and that the Marshals Service serve the amended complaint on the defendants.
The record indicates that the Marshals Service contacted Sebrell on June 23, 2004,
August 18, 2004, and September 24, 2004, requesting that she complete new USM-285
forms.
Sebrell responded by objecting to the District Court’s caption change and
reasserting her earlier argument that the complaint should be served on the District
Attorney. On January 14, 2005, the District Court entered an order giving Sebrell 30 days
in which to complete and return the forms to the Marshals Service or risk having her case
dismissed. Sebrell did not return the forms. Three months later, on April 13, 2005,
Sebrell filed a document titled “Complaint and notification of intent to appeal,” which
repeated her objection to the caption change and added an objection to the January order
as well.1 Two months passed without Sebrell returning the forms, and, on June 13, 2005,
the District Court dismissed the case for failure to prosecute. Sebrell filed a timely appeal
and has filed a brief. We review the District Court’s dismissal for failure to prosecute for
abuse of discretion. See Dunbar v. Triangle Lumber and Supply Co., 816 F.2d 126, 128
(3d Cir. 1987).
A District Court has the authority to dismiss a suit sua sponte for failure to
prosecute by virtue of its inherent powers and pursuant to Federal Rule of Civil Procedure
41(b). Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). Such a dismissal is
deemed to be an adjudication on the merits, barring any further action between the
parties. See Landon v. Hunt, 977 F.2d 829, 833 (3d Cir. 1992); Fed. R. Civ. P. 41(b).
We have held that dismissal is a “drastic sanction” which should be reserved for cases
“where there is a clear record of delay or contumacious conduct by the plaintiff.” See
Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 342 (3d Cir. 1982).
Ordinarily, we have required a District Court to consider and balance six factors
1
We note that Sebrell supports her argument against the caption change, in part,
with the assertion that “the U.S. Court of Appeals examined this case for any procedure
errors and found none.” This appears to be a reference to her earlier appeal, which dealt
solely with the question whether Sebrell was entitled to proceed in forma pauperis in the
District Court. We held that she was and remanded the case to the District Court for
further proceedings. Contrary to Sebrell’s assertion, nothing in our earlier opinion
indicates that we considered the case for procedural errors or evaluated the sufficiency of
the caption as originally filed.
enumerated in Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863 (3d Cir. 1984), when
deciding, sua sponte, to use dismissal as a sanction. See, e.g., Livera v. First Nat’l Bank
of N.J., 879 F.2d 1186, 1193-94 (3d Cir.1989); Emcasco Ins. Co. v. Sambrick, 834 F.2d
71, 73 (3d Cir. 1987). However, when a litigant’s conduct makes adjudication of the case
impossible, such balancing under Poulis is unnecessary. See Guyer v. Beard, 907 F.2d
1424, 1429-30 (3d Cir. 1990); see also Spain v. Gallegos, 26 F.3d 439, 454-55 (3d Cir.
1994) (internal citation omitted) (Poulis analysis unnecessary when plaintiff willfully
refused to prosecute her case after receiving adverse rulings). After carefully reviewing
the record, we hold that this is such a case.
Sebrell was given ample notice that she needed to complete and return the required
forms to the Marshals Service or her suit would be dismissed. Despite her dissatisfaction
with the District Court’s order changing the caption, the District Court’s January 14,
2005, order presented Sebrell with the straightforward choice of completing the required
forms or risking dismissal. Given the simplicity of this order, Sebrell must have
understood the consequences of her decision not to comply. See Spain, 26 F.3d at 454-
55. Nevertheless, instead of complying, Sebrell chose to repeat her previous objections.
In light of Sebrell’s persistent refusal to cooperate so that her case could move
forward, we see no alternative path that the District Court could have taken. See Guyer,
907 F.2d at 1430; Spain, 26 F.3d at 454-55. Sebrell willfully refused to comply with the
District Court’s order to complete and return the required forms. Sebrell’s pleadings
provide no indication that, had the District Court kept the case open indefinitely, Sebrell
would have completed the forms. Indeed, Sebrell persists in arguing on appeal that the
District Attorney should be served, even though the District Attorney is not named as a
defendant in the complaint. Our review of the record convinces us that the District Court
did not abuse its discretion in dismissing Sebrell’s case for failure to prosecute. See Link,
370 U.S. at 630-31. Accordingly, we will affirm the District Court’s judgment entered on
June 13, 2005.2
2
We decline to address Sebrell’s arguments that the District Court’s June 15, 2004,
and January 14, 2005, orders were erroneous. Indeed, to the extent that Sebrell’s refusal
to comply with the District Court’s order can be interpreted as an attempt to seek
appellate review of the court’s earlier orders, she cannot do so. See Marshall v. Sielaff,
492 F.2d 917, 919 (3d Cir. 1974) (“[i]f a litigant could refuse to proceed whenever a trial
judge ruled against him, wait for the court to enter a dismissal for failure to prosecute, and
then obtain review of the judge’s interlocutory decision, the policy against piecemeal
litigation and review would be severely weakened”).