BLD-152 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-1177
___________
JAMES GEORGE DOURIS,
Appellant
v.
UPPER MAKEFIELD TOWNSHIP
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2:10-cv-01469)
District Judge: Honorable R. Barclay Surrick
____________________________________
Submitted for Possible Summary Action Pursuant to Third
Circuit LAR 27.4 and I.O.P. 10.6
March 29, 2012
Before: SCIRICA, SMITH and CHAGARES, Circuit Judges
(Opinion filed : April 12, 2012)
_________
OPINION
_________
PER CURIAM 1
James Douris, a frequent litigant before this
Court, 2 sued Upper Makefield Township for alleged
violations of the Constitution and federal law. He
proceeded pro se and was granted in forma pauperis
status. During motions practice, and in support of a
1
In light of the Clerk’s order of January 27, 2012,
this opinion is presented in Courier New 14-point
monospace font.
2
See Douris v. Middletown Twp., 353 F. App’x 672 (3d
Cir. 2009) (appeal dismissed as frivolous); Douris v.
Newtown Borough, No. 07-4427, 2009 WL 90848 (3d Cir.
Jan. 15, 2009) (affirming denial of in forma pauperis
status); Douris v. Middletown Twp., 293 F. App’x 130
(3d Cir. 2008) (affirming denial of in forma pauperis
status, while remanding for reconsideration of an order
entered without jurisdiction); Douris v. Huff, 260 F.
App’x 441 (3d Cir. 2008) (affirming District Court’s
dismissal of complaint under 28 U.S.C. §
1915(e)(2)(B)); Douris v. Newtown Borough, Inc., 207 F.
App’x 242 (3d Cir. 2006) (same); Douris v. Office of
the Pa. Att’y Gen., 174 F. App’x 691 (3d Cir. 2006)
(affirming dismissal of complaint); Douris v. Bucks
Cnty., 145 F. App’x 735 (3d Cir. 2005) (dismissing
appeal pursuant to 28 U.S.C. § 1915(e)(2)(B)); Douris
v. Genuardi’s Family Mkts., Inc., 132 F. App’x 425 (3d
Cir. 2005) (affirming grant of summary judgment);
Douris v. Rendell, 100 F. App’x 126 (3d Cir. 2004)
(table); Douris v. Dougherty, 90 F. App’x 434 (3d Cir.
2004) (table); Douris v. Cnty. of Bucks, 85 F. App’x
870 (3d Cir. 2003) (table).
2
motion for default judgment, Douris submitted a
document to the District Court that appeared to have
been modified to show an earlier service date. Compare
Pl. Adds to Pl.’s Claim of J. by Default Ex. 1, ECF No.
13, with Process Receipt, ECF No. 5. Upper Makefield
Township asked the District Court to sanction Douris by
dismissing his complaint, a motion that Douris did not
meaningfully oppose. The Court concluded that Douris
had “made a material misrepresentation” in his
submissions, and found this “outrageous” action—
otherwise unexplained by Douris—to merit dismissal with
prejudice. See Order, ECF No. 17. In response, Douris
filed a motion accusing the District Court of being “in
violation of the law” for not accommodating his
disabilities (the “July 25 motion”). The motion was
denied, and this appeal followed.
We have jurisdiction under 28 U.S.C. § 1291, 3
3
The District Court dismissed Douris’s complaint by an
order entered on the civil docket on July 21, 2011.
The order, which contained reasoning explaining the
decision to dismiss (albeit through the use of
3
reviewing the District Court’s decision to dismiss the
complaint as a sanction for abuse of discretion while
evaluating its factual findings for clear error. 4 In re
Ronco, Inc., 838 F.2d 212, 217 (7th Cir. 1988); Poulis
v. State Farm Fire & Casualty Co., 747 F.2d 863, 868
footnotes), did not satisfy the requirements of Fed. R.
Civ. P. 58, also known as the “separate document” or
“separate judgment” rule. To be in compliance with
Rule 58, an order must substantially “omit[] the
District Court’s reasons for disposing of the parties’
motions as it did.” Local Union No. 1992 of IBEW v.
Okonite Co., 358 F.3d 278, 285 (3d Cir. 2004); see also
LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d
217, 224 (3d Cir. 2007). Because the order contained
substantial reasoning, and was therefore not in
compliance with Rule 58, the time of its entry was set
at 150 days after its appearance on the civil docket,
which we calculate to be Sunday, December 18, 2011.
See Fed. R. Civ. P. 58(c)(2)(B); Fed. R. App. P.
4(a)(7)(A)(ii); UAW Local 259 Soc. Sec. Dep’t v. Metro
Auto Ctr., 501 F.3d 283, 287 (3d Cir. 2007). Since the
last day of the period was a Sunday, the order was
entered the next day: Monday, December 19, 2011. See
Fed. R. Civ. P. 6(a)(1)(C); Fed. R. App. P.
26(a)(1)(C). Douris was then required to file his
notice of appeal within thirty days, see Fed. R. App.
P. 4(a)(1)(A); the District Court docket reflects an
on-time filing on January 18, 2012.
4
We detect no such error in the District Court’s
central factual finding: that Douris modified the
process receipt in support of his motion for default
judgment.
4
(3d Cir. 1984). Recognizing that dismissal is a
sanction of last resort, we focus on whether the
District Court properly balanced the Poulis factors 5 in
deciding to dismiss the complaint. Hicks v. Feeney,
850 F.2d 152, 156 (3d Cir. 1988). “In balancing the
Poulis factors, we do not have a ‘magic formula’ or
‘mechanical calculation’ to determine whether a
District Court abused its discretion in dismissing a
plaintiff’s case.” Briscoe v. Klaus, 538 F.3d 252, 263
(3d Cir. 2008) (citing Mindek v. Rigatti, 964 F.2d
1369, 1373 (3d Cir. 1992)).
While not invoking Poulis by name, the District
Court appears to have appropriately weighed relevant
5
These factors are: “(1) the extent of the party’s
personal responsibility; (2) the prejudice to the
adversary . . . ; (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 (emphasis in original). “Not all of these
factors need be met for a district court to find
dismissal is warranted.” Hicks, 850 F.3d at 156.
5
factors, addressing the egregiousness of Douris’s
conduct and his apparent lack of contrition. As a pro
se litigant, Douris alone was responsible for the
content of his submissions. Further, Douris’s history
of “frivolous” and “abusive” filings was well known to
the Court. See Order n.1 (citing Douris v. Middletown
Twp., 293 F. App’x 130, 132–33 (3d Cir. 2008)). Douris
was given an opportunity to correct the record or
withdraw his motion, 6 but did not do so, and failed to
address the discrepancy observed by the defendant and
the District Court—a plausible sign of both willfulness
and bad faith.
The District Court did not specifically discuss the
6
According to the defendant, Douris was notified by
mail on April 11, 2011, of his material
misrepresentation and the possible consequences, and
was given time to withdraw the material or explain his
conduct. See Mot. for Sanctions ¶ 5,ECF No. 16. The
defendant had originally pointed out the sanctionable
conduct to the Court in its response of April 8. See
Resp. ¶¶ 1, 3, ECF No. 14. More than two months
elapsed between the motion for sanctions and the
District Court’s decision, with no response from
Douris.
6
final two relevant Poulis factors: the effectiveness of
alternative sanctions and the meritoriousness of the
claim. Despite this, we do not find reversible error
under the deferential standard of review that controls.
See Guyer v. Beard, 907 F.2d 1424, 1429–30 (holding
that conduct by a litigant can be so “contumacious”
that a district court need not specifically write about
each of the Poulis considerations). With regard to
alternative sanctions, such as financial penalties, the
District Court’s options were limited by Douris’s pro
se and in forma pauperis status. See Briscoe, 538 F.3d
at 262–63. As to the meritoriousness of Douris’s
complaint, we note his history of frivolous suits. 7
All in all, we must conclude that the District
Court acted within its discretion when it dismissed
Douris’s complaint based on his willingness to falsify
7
We have noted that both the decision to impose
sanctions and their extent can be guided by “equitable
considerations,” which may include a history of filing
frivolous actions. See Doering v. Union Cnty. Bd. of
Chosen Freeholders, 857 F.2d 191, 197 n.6 (3d Cir.
1988).
7
documents at an early stage of litigation and his
refusal to withdraw the misrepresentation. “[I]t is
arguable that a litigant who defrauds the court should
not be permitted to continue to press his case [in
certain circumstances].” Allen v. Chi. Transit Auth.,
317 F.3d 696, 703 (7th Cir. 2003) (Posner, J.). 8 We
further conclude that the District Court correctly
denied Douris’s July 25 motion, which had requested no
easily discernible relief; and while Douris
demonstrated that various District Court documents were
sent to the wrong address, he does not appear to have
been prejudiced by this error.
In sum, finding no substantial question to be
presented by this appeal, we will summarily affirm.
United States v. Rhines, 640 F.3d 69, 72 (3d Cir. 2011)
(per curiam); see also 3d Cir. L.A.R. 27.4; IOP 10.6.
8
See also Garcia v. Berkshire Life Ins. Co. of Am., 569
F.3d 1174, 1182 (10th Cir. 2009) (“[T]he affirmative
submission of false evidence is, at minimum, akin to a
fraud on the court, which other courts have found may
justify the sanction of dismissal.” (citing Allen)).
8