NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-4444
___________
GERALD BUSH,
Appellant
v.
DEPARTMENT OF HUMAN SERVICES;
CITY OF PHILADELPHIA
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 11-02612)
District Judge: Honorable C. Darnell Jones, II
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 1, 2012
Before: RENDELL, FUENTES AND WEIS, Circuit Judges
(Opinion filed: June 12, 2012)
___________
OPINION
___________
PER CURIAM.
Gerald Bush, proceeding pro se, appeals from the District Court’s orders
dismissing his civil rights action and denying his requests for appointment of counsel.
For the reasons that follow, we will affirm in part, vacate in part, and remand to the
District Court for further proceedings.
I. Background
In April 2011, Bush commenced a civil rights action on behalf of himself, his
minor daughter, Amirah, and his granddaughter, against the Department of Human
Services (“DHS”), Supervisor of DHS, Social Worker Benten, the City of Philadelphia,
and Saint Vincent’s shelter. In the complaint, Bush alleged that in February 2011,
Benten removed Amirah and her daughter from his care after threatening him and
Amirah to agree to a safety plan. Bush stated that Amirah and her daughter were
eventually placed at Saint Vincent’s shelter, where Amirah’s daughter suffered a skull
injury. Bush also stated that he did not receive a post-deprivation hearing until six-weeks
after his daughter and granddaughter were removed. Therefore, Bush claimed that
defendants had violated his right to procedural due process under 42 Pa. Cons. Stat. §
6332 for failing to timely hold a post-deprivation hearing, and his and Amirah’s right to
substantive due process by improperly obtaining consent to a safety plan through duress
and by failing to properly care for his granddaughter.
The District Court dismissed the complaint without prejudice and ordered the case
closed, but gave Bush 30 days to retain an attorney for his daughter and granddaughter,
and to file an amended complaint containing only his claims against defendants. The
District Court subsequently granted Bush’s motion for an extension of time to obtain
counsel, and sua sponte extended the time period for Bush to file an amended complaint
to June 16, 2011. Bush was unable to obtain counsel for Amirah, his granddaughter, or
2
himself, and filed a several requests for appointment of counsel, which the District Court
denied.
In July 2011, Bush filed an amended complaint, in which he named only himself
as plaintiff and only the City of Philadelphia and DHS as defendants. In his amended
complaint and subsequent documents, Bush claimed that defendants retaliated against
him for filing his initial April 2011 complaint by instigating an investigation concerning
another daughter of his, Niara, and removing her from his care based on allegations of
child abuse that were later determined to be unfounded. Bush also alleged that his right
to procedural due process was violated when the Court of Common Pleas refused to grant
his request for a continuance at Niara’s dependency hearing. It also appears that Bush
restated arguments concerning Amirah that he made in his initial complaint.
By orders entered December 7 and 13, 2011, 1 the District Court sua sponte entered
final judgment against Bush, 2 noting that Bush’s amended complaint was untimely filed
since it had ordered that an amended complaint be filed by June 16, 2011. The District
Court did not specify the authority it was relying on to enter final judgment against Bush.
It appears that it exercised its authority under Fed. R. Civ. P. 41(b), and dismissed the
1
The District Court filed identical orders.
2
Defendants had yet to enter an appearance in District Court, and have not entered
an appearance with this Court.
3
case for Bush’s failure to comply with a court order. 3 Bush timely appealed.
II. Discussion
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a District Court’s
dismissal for failure to comply with court orders, as well as a denial of a request for
appointment of counsel, for abuse of discretion. See Emerson v. Thiel Coll., 296 F.3d
184, 190 (3d Cir. 2003); Tabron v. Grace, 6 F.3d 147, 155 n.4 (3d Cir. 1993).
Under Fed. R. Civ. P. 41(b), a district court may dismiss an action sua sponte if a
plaintiff fails to comply with a court order. See Link v. Wabash R.R. Co., 370 U.S. 626,
630-31 (1962). Before dismissing the action, the district court must first consider and
balance the six factors under Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868
(3d Cir. 1984): (1) the extent of the party’s personal responsibility; (2) the prejudice to
3
In a footnote, the District Court also stated that “[i]n an effort to maintain
consistency in the face of [Bush’s] voluminous litigation, the Court has enforced its order
and this action remains closed following [Bush’s] untimely filing,” citing several civil
rights actions Bush previously filed. The intention of this statement is unclear. Review
of the cases cited by the District Court shows that Bush filed a series of duplicative
complaints claiming false arrest and/or malicious prosecution. See E.D. Pa. Nos. 09-
4798, 10-640, 10-1104. As a result, in September 2010, the District Court enjoined Bush
from filing claims under 42 U.S.C. § 1983 without leave of the Court. E.D. Pa. No. 10-
1104. The injunction, which we upheld, also requires Bush to certify that the claims he
wishes to present have never before been raised and disposed of on the merits by any
federal courts. Id.; C.A. No. 10-4282. The District Court may have precluded Bush’s
amended complaint based on the injunction. However, the District Court’s actions are
unclear, as the District Court was not explicit in its order and did not require the requisite
certification when Bush filed his original complaint in this case.
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the adversary caused by the failure to meet scheduling orders; (3) a history of
dilatoriness; (4) whether the conduct of the party was willful or in bad faith; (5) the
effectiveness of sanctions other than dismissal; and (6) the meritoriousness of the claim.
See United States v. $8,221,877.16 in U.S. Currency, 330 F.3d 141, 161 (3d Cir. 2003).
Because an order of dismissal is a harsh remedy that deprives a party of its day in court,
we have stated that “a court should resort to [dismissal] only in extreme cases, as ‘the
policy of the law is to favor the hearing of a litigant’s claim on the merits.’” Spain v.
Gallegos, 26 F.3d 439, 454 (3d Cir. 1994) (quoting Marshall v. Sielaff, 492 F.2d 917, 918
(3d Cir. 1974)); see Adams v. Trustees of the N.J. Brewery Employees’ Pension Trust
Fund, 29 F.3d 863, 876 (3d Cir. 1994). However, in extraordinary cases, such as when a
plaintiff acts contumaciously after the district court warns him that the case may be
dismissed for noncompliance, a district court may dismiss a case without analyzing the
Poulis factors. See, e.g., Spain, 26 F.3d at 455; Guyer v. Beard, 907 F.2d 1424, 1429-30.
Here, the District Court dismissed Bush’s suit with prejudice without warning
Bush of possible dismissal and without mentioning the Poulis factors. 4 Additionally, the
record does not suggest that this in an extraordinary case in which Bush acted
contumaciously. We therefore conclude that the District Court abused its discretion in
4
We do not undertake the task of balancing the Poulis factors in the first instance,
“as it would require factual findings not within the parameters of our review.” Livera v.
First Nat’l State Bank of N.J., 879 F.2d 1186, 1194 (3d Cir. 1989).
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dismissing Bush’s suit.
We also conclude that the District Court did not abuse its discretion in denying
Bush’s requests for appointment of counsel. Bush requested appointment of counsel at
an early stage of the proceedings, when it was premature to determine whether Bush’s
claims had arguable merit or whether additional factors warranted appointing counsel.
See Tabron, 6 F.3d at 155-56. 5
For the reasons stated above, we will affirm in part, vacate in part and remand the
case for further proceedings consistent with this opinion. 6
5
The District Court properly dismissed the claims Bush asserted on behalf of his
minor daughter and granddaughter, as Bush may not act as “pro se counsel” for them.
See Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 882-83 (3d Cir. 1991) (minors may
not proceed pro se or be represented by non-attorney parent). It also did not abuse its
discretion in denying Bush’s request to appoint counsel for his daughter and
granddaughter. See Tabron, 6 F.3d at 155-56.
6
Bush’s motions to file an amendment in support his brief are granted, and we
have considered his amendments in reaching our decision. Bush’s motions to enter
default judgment, motion to appoint a special master, and motion to compel arbitration,
for summary judgment, and for appointment of counsel for arbitration are denied. The
document entitled “Violation of Federal Rule[] of Civil Procedure Rule
37[(b)](2)(A)(vi)(vii) [for] Sanctions . . . and Oral Argument [under] Fed. R. [App.] P.
34” appears to be a motion requesting oral argument and requesting that this Court
sanction Appellees for not filing a brief. This motion is also denied.
6