DLD-292 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 19-1673
___________
LUIS NIEVES,
Appellant
v.
EMT RON THORNE; PARAMEDIC NICOLE JOHANNES;
OFFICER PAUL TOMCZYK; SUPERINTENDENT FAYETTE SCI;
GOVERNOR OF PENNSYLVANIA
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 3-16-cv-01912)
District Judge: Honorable James M. Munley
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
September 26, 2019
Before: JORDAN, GREENAWAY, JR. and NYGAARD, Circuit Judges
(Opinion filed: November 5, 2019)
_________
OPINION*
_________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Luis Nieves appeals the sua sponte dismissal of his action for failure to prosecute.
See Fed. R. Civ. P. 41(b). Because this case does not present a substantial question, we
will summarily affirm. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.
Nieves filed this action and a motion to proceed in forma pauperis (IFP) in
September 2016, alleging that his civil rights were violated when he was unlawfully
restrained and received unwanted medical care. Nieves named a police officer, Paul
Tomczyk, an EMT, Ron Thorne, and a paramedic, Nicole Johannes, as defendants. The
District Court granted Nieves’s request to proceed IFP, and directed the United States
Marshal to serve each of the three defendants. Ultimately, only Officer Tomczyk
responded, filing a motion to dismiss.1 The case was referred to a Magistrate Judge who
issued a Report and Recommendation (R&R) recommending that the motion to dismiss
be granted because Nieves had failed to prosecute his action. Dkt. #31.
On April 5, 2017, the District Court adopted the R&R and dismissed the case as to
Officer Tomczyk. Dkt. #36. Nieves subsequently submitted various filings to the court,
including a motion to appoint counsel. On May 8, 2017, the Magistrate Judge denied the
motion to appoint counsel and directed Nieves to show cause as to why the case should
not be dismissed for failure to prosecute, since Nieves had yet to provide addresses for
the other named defendants. Dkt. #43.
On May 25, 2017, Nieves requested leave to file an amended complaint, but this
1
Thorne and Johannes were never served because Nieves did not provide addresses for
either defendant, despite the court’s direction to do so.
2
filing was denied because it was incomplete. Dkt. #47. The Magistrate Judge ultimately
gave Nieves until September 11, 2017, to file a proper motion seeking leave to file an
amended complaint. Nieves never did so. Instead, on December 10, 2018—a year and
three months after the deadline set by the Magistrate Judge—Nieves filed an amended
complaint. The amended complaint did not mention the original three defendants, and
instead alleged that new defendants, Mark Capoza and Tom Wolff, violated his
constitutional rights.2
The Magistrate Judge sua sponte issued an R&R, recommending the case be
dismissed for failure to prosecute, or, in the alternative, be dismissed under the IFP
screening provision 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. The District
Court adopted the R&R and dismissed the action for failure to prosecute. See Fed. R.
Civ. P. 41(b). Nieves timely appealed.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review
the District Court’s sua sponte decision to dismiss a case pursuant to Rule 41(b) for an
abuse of discretion. Briscoe v. Klaus, 538 F.3d 252, 257 (3d Cir. 2008). “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.” Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002).
Under Rule 41(b), a district court may punitively dismiss an action if a litigant has
2
The amended complaint, like most of Nieves’s filings, is difficult to read. There appear
to be various allegations, including “mental health criminal violations,” retaliation,
slander, false imprisonment, and attempted murder. Dkt. #53 at 2–3.
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failed to prosecute or to comply with a court order. See Fed. R. Civ. P. 41(b). A court
must justify its decision under the multi-factor balancing test stated in Poulis v. State
Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984). Under Poulis, a court must
weigh: “(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.” Id.
at 868 (emphasis removed). Dismissals with prejudice are drastic sanctions; accordingly,
a “[d]ismissal must be a sanction of last, not first, resort.” Id. at 869.
We have advised that a district court dismissing a case sua sponte “should use
caution in doing so because it may not have acquired knowledge of the facts it needs to
make an informed decision.” Briscoe, 538 F.3d at 258. In such cases, a district court
“should provide the plaintiff with an opportunity to explain his reasons for failing to
prosecute the case or comply with its orders prior to dismissing a case sua sponte.” Id.
While there is no “magical formula” or “mechanical calculation” in evaluating a Rule
41(b) dismissal, “we have never upheld a court’s dismissal when it was supported by an
inadequate foundation on even one of the Poulis factors.” Hildebrand v. Allegheny
County, 923 F.3d 128, 137 (3d Cir. 2019).
Here, the Magistrate Judge thoroughly analyzed each Poulis factor and concluded
that all of the factors, with the exception of the second factor (prejudice to the
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adversary)3, weighed in favor of dismissal. We agree.
As a pro se litigant, the responsibility to prosecute this case fell squarely on
Nieves. See Emerson, 296 F.3d at 190. Nieves engaged in dilatory tactics by submitting
various erroneous filings to the court, which were often in the form of letters that
expressed his thoughts on unrelated cases or irrelevant topics in a stream-of-
consciousness style. In addition to these erroneous letters, he asked for various
extensions of time to file responsive pleadings, and then failed to meet the deadlines set
by the court. Indeed, the Magistrate Judge even notified Nieves—via an order to show
cause—that his case could be dismissed if he failed to provide addresses for the named
defendants. Dkt. #43. Nieves asked for an extension of time to respond to this order,
failed to respond, and then filed an amended complaint naming entirely new defendants
and listing new causes of action more than a year later. See Briscoe, 538 F.3d at 260
(“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.” (internal quotation marks omitted)).
Moreover, the record supports the conclusion that Nieves’s conduct was not
merely negligent. See Emerson, 296 F.3d at 191 (agreeing that failing to comply with
court orders and “dragging the case out” was willful and not merely negligent or
inadvertent). Further, Nieves’s pro se and IFP status, coupled with his refusal to comply
3
The Magistrate Jude determined that this factor was neutral because none of the
remaining defendants in the original complaint, or the new defendants named in the
amended complaint, had been served.
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with court orders (including an order to show cause), rendered lessor sanctions
ineffective. See Briscoe, 538 F.3d at 262–63 (noting where a plaintiff is proceeding pro
se and IFP, we have upheld the conclusion that no alternative sanctions existed because
monetary sanctions “would not be an effective alternative”).
Finally, we agree that the assessment of the meritoriousness of Nieves’s claims
weighed heavily in favor of dismissal. Quite simply, the amended complaint consisted of
vague, rambling allegations of wrongdoing that were insufficient to state a claim. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (noting that, while the pleading standard of
Rule 8 does not require detailed factual allegations, it requires “more than an unadorned,
the-defendant-unlawfully-harmed-me accusation,” and that a complaint is insufficient “if
it tenders ‘naked assertions’ devoid of ‘further factual enhancement’” (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555–57 (2007)).
Accordingly, we find no abuse of discretion in the sua sponte dismissal of
Nieves’s action for failure to prosecute. For the foregoing reasons, we will summarily
affirm the District Court’s judgment.
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