Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
4-6-2006
Coley v. Bucks Cty Children
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4660
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-4660
________________
RUSSELL WYDELL COLEY,
Appellant
v.
BUCKS COUNTY CHILDREN & YOUTH SERVICES AGENCY;
KELLY GAHAN-TAYLOR; JESSICA PIERSON; KATHLEEN
GLEASON, ET AL.; DELTA COMMUNITY SUPPORTS, INC.;
CHRISTINE SIDES, ET AL.
____________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 04-cv-04798)
District Judge: Honorable William H. Yohn, Jr.
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
October 12, 2005
Before: ROTH, MCKEE AND ALDISERT, CIRCUIT JUDGES
(Filed: April 6, 2006 )
_______________________
OPINION
_______________________
PER CURIAM
Russell Coley appeals the District Court’s order dismissing his action with
prejudice and denying his motion for counsel as moot. On October 13, 2004, Russell
Coley submitted a complaint and filed an application to proceed in forma pauperis. On
October 22nd, Coley filed an addendum to his complaint, his prison account statement,
and a motion for appointment of counsel. By order entered November 8th, the District
Court denied the application to proceed in forma pauperis without prejudice. It stated that
Coley may not have been aware when he brought the action that he would have to pay the
full filing fee even if the case was dismissed and gave Coley twenty days to file a notice
indicating that he wished to proceed and obligate himself to pay the fee. On November
10th, Coley filed an motion for counsel and on November 17th, an affidavit relating to his
complaint. On December 2, 2004, the District Court dismissed the action with prejudice.
Coley filed a timely notice of appeal, and we have jurisdiction under 28 U.S.C. § 1291.
The District Court dismissed Coley’s complaint because it found that he failed to
file a notice that he wished to proceed within the twenty-day period provided in the
November 8, 2004, order. Thus, we review the District Court’s order for an abuse of
discretion. Redmond v. Gill, 352 F.3d 801, 803 (3d Cir. 2003) citing Poulis v. State Farm
Fire & Casualty Co., 747 F.2d 863 (3d Cir.1984). “Dismissals with prejudice or defaults
are drastic sanctions, termed ‘extreme’ by the Supreme Court, and are to be reserved for
comparable cases.” Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 867-8 (3d
2
Cir. 1984) (citation omitted). In Poulis, we set forth six factors to be balanced in deciding
whether to dismiss a case as a sanction:
(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. In determining whether the District Court has abused its
discretion, we examine its balancing of these factors and whether its findings are
supported by the record. Here, the District Court did not address or weigh the Poulis
factors.
With respect to the first Poulis factor, Coley, as a pro se litigant, is wholly
responsible for his failure to file an explicit notice that he wished to proceed.1 Because
the defendants had not yet been served with the complaint, it does not appear that they
would be prejudiced in any way. As the case was in its initial stages, there was no history
of dilatoriness on Coley’s part. An alternative sanction would have been to dismiss the
complaint without prejudice. We believe that the final factor also weighs in Coley’s
1
Coley argues on appeal that the District Court did not realize that his motion for
counsel and inmate account certification were indicators that he wished to proceed.
While we do not believe that these filings were sufficient compliance with the District
Court’s order, we also do not consider Coley’s conduct to be a “a willful failure to
respond to the [] order that evidences an intent to flout the District Court’s instructions.”
Redmond, 352 F.3d at 803.
3
favor because his application to proceed in forma pauperis had merit.2 Thus, we conclude
that the District Court abused its discretion in dismissing the action with prejudice.
We note that the form Coley used for his application to proceed in forma pauperis
includes language which states “I understand that the granting of in forma pauperis status
does not waive payment of the full filing fee.” App. at 1. While we appreciate the District
Court wanting to ensure that prisoner litigants are aware that they will have to pay the full
filing fee, if the application is complete, the District Court should only consider whether
the applicant is economically eligible. Sinwell v. Shapp, 536 F.2d 15, 19 (3d Cir. 1976).
Moreover, because the application to proceed in forma pauperis was denied and the
complaint was never filed, the action should not have been dismissed with prejudice.3
For the above reasons, we will vacate the District Court’s December 1, 2004 order
and remand the matter for further proceedings. On remand, the District Court should
grant Coley’s application to proceed in forma pauperis.
2
The District Court did not conclude that Coley was not indigent and proposed an
initial partial filing fee.
3
Because the complaint was never filed, the merit of the claims or the District Court’s
jurisdiction over them is not relevant to this appeal.