dissenting.
I believe that the district court’s imposition of the extreme sanction of dismissal constituted an abuse of discretion. As both majority and the parties recognize, the question of appropriate sanction is influenced, if not determined, by the content of our disposition in Hicks v. Feeney, 770 F.2d 375 (3d Cir.1975) (Hicks II). Under the circumstances, an order precluding plaintiff from establishing both actual and punitive damages would have provided an appropriate Rule 37(b) sanction. Accordingly, I respectfully dissent.
I.
On motion for summary judgment, the district court in Hicks v. Feeney, 596 F.Supp. 1504, 1508 (D.Del.1984) (Hicks I), considered whether defendant’s failure to comply with the Delaware Involuntary Commitment Statute, 16 Del Code Ann. ch. 50 (1983), resulted in a deprivation of plaintiff’s constitutionally protected liberty interest in contravention of 42 U.S.C. § 1983. Relying on Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), the court held that Hicks’ right to procedural due process was not violated based upon the existence of adequate state post-deprivation remedies. Id. at 1512. In the alternative, the district court additionally held that Feeney was entitled to qualified immunity. Id. at 1515.
On appeal, we reasserted the district court’s conclusion that absent the application of Parratt, DSH’s confinement procedures violated Hicks’ liberty interest:
Both sides agreed in open court that the procedure followed to commit Hicks violated a liberty interest protected by the fourteenth amendment. In light of Supreme Court precedent, any other position would be untenable. See Vitek v. Jones, 445 U.S. 480, 491 S.Ct. 1254, 1262, 63 L.Ed.2d 552 (1980) (involuntary commitment from prison to a mental hospital requires due process protection) (other citations omitted).
Hicks, 770 F.2d at 377. However, we reversed the court’s reliance on Parratt, observing that DSH’s court commitment procedure constituted an established “state custom or usage” requiring a pre-depriva*158tion hearing.1 Id. at 378-79. Next, we asserted that the district court’s holding entitling Feeney to qualified immunity was predicated upon an incorrect interpretation of People of Three Mile Island v. Nuclear Reg. Com’rs, 747 F.2d 139 (3d Cir.1984). We rejected the court’s insistence upon a strict factual nexus between applicable precedent and the case before it in favor of “a more flexible approach requiring some factual correspondence and demanding that officials apply well developed legal principles to the instant case.” Id. at 379-80. Accordingly, this court vacated the district court’s order and remanded only the immunity claim for reconsideration. Id. at 380.
Remarkably, both the majority and the district court somehow conclude that Hicks II failed to establish, as a matter of law, whether the plaintiff was deprived of liberty without due process of law. In response to plaintiff’s argument that absent resolution of the immunity question, Hicks II determined Feeney’s liability, the majority observes:
Reviewing Hicks II, we do not find such a holding. In Hicks II we held that the district court erred in applying the post-deprivation remedy to section 1983 violations of Parratt v. Taylor, supra.
(Maj. op. at 155).
The majority wholly ignores the effect of our rejection of Parratt, which necessarily implies a violation of the due process clause. Parratt held that when officials act in a random and unauthorized fashion, the state is unable to anticipate the circumstances in which a property loss will occur, and therefore is unable to provide a hearing before the deprivation takes place. See Hicks, 770 F.2d at 378. Thus, the district court in Hicks I asserted that because DSH officers were not acting pursuant to established state custom or usage, the availability of post-deprivation state remedies satisfied the due process clause. Based upon our conclusion that Parratt was inapplicable, we held that the plaintiff was entitled to a pre-deprivation hearing before he could be involuntarily confined. Because the parties conceded that Hicks was not accorded the requisite hearing, our holding can only be interpreted to establish the deprivation of a constitutionally protected liberty interest.
My conclusion is additionally supported by our instruction to the district court to consider on remand only the issue of Fee-ney’s qualified immunity. Id. at 380. Had a legal or factual element of Hicks’ liberty deprivation remained undetermined, our directive undoubtedly would have acknowledged it. Instead, this court’s instruction recognized that, in addition to the extent of plaintiff’s damages, the only remaining issue in the litigation was Feeney’s immunity. Thus, as plaintiff’s counsel cogently observes, the denial of Hicks’ liberty interest became “the law of the case” on remand. See Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d 943, 950 (3d Cir.1985) (on remand, trial court may not reconsider those issues not expressly or implicitly disposed of by appellate decision). As we observed in Cowgill v. Raymark Industries, Inc., 832 F.2d 798, 802 (3d Cir.1987), “[w]hen a court of appeals reverses a judgment and remands for further consideration of a particular issue, leaving other determinations of the trial court intact, the unreversed determinations of the trial court normally continue to work an estop-pel.”
The majority attempts to justify its conclusion that Hicks II failed to decide the due process issue by noting: “We made no findings as to whether a hearing took place and if not, why not.” (Maj. op. at 155). The majority’s response is inexplicable given the fact that Hicks II constituted an appeal from a summary judgment order; the parties conceded that no hearing occurred prior to Hicks’ confinement. Finally, the majority’s inquiry into “why” DSH failed to accord Hicks a hearing is irrelevant, or at least, not within the scope of plaintiff’s knowledge. In light of the foregoing, I now consider the issue of appropriate sanction.
*159II.
As the majority observes, it is well settled that a district court has discretion to issue sanctions for failure to comply with discovery orders. Ali v. Sims, 788 F.2d 954, 957 (3d Cir.1986); National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976). However, we have additionally noted that “dismissal is a drastic sanction;” a court should be reluctant to deprive a litigant of the right to have his claim adjudicated on the merits. Titus v. Mercedes Benz of North America, 695 F.2d 746, 749 (3d Cir.1982). Accordingly, the following factors are relevant in determining a proper 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 v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir.1984). Two additional criteria limit the exercise of a court’s discretion — the sanction must be “just” and must be “specifically related to the particular ‘claim’ which was at issue in the order to provide discovery.” Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707, 102 S.Ct. 2099, 2107, 72 L.Ed.2d 492 (1982). I agree with the majority’s conclusion that three of the Poulis factors — namely, party responsibility, history of dilatoriness, and willful party conduct, weigh in favor of dismissal. However, my analysis of the remaining factors leads to the imposition of a less severe sanction.
As a result of Hicks II, the remaining issues properly before the district court on remand were the extent of plaintiff’s damages, and whether Feeney was entitled to qualified immunity. Importantly, Hicks’ refusal to testify to the details of his confinement prejudiced Feeney only in his attempt to defend against proof of damages. The majority suggests, however, that Hicks’ conduct somehow precluded Feeney from establishing qualified immunity:
Certainly Hicks II announced some controlling legal principles but it is equally clear that Hicks could not have obtained any judgment until the qualified immunity issue was resolved. Even though the discovery does not on its face seem related to the qualified immunity issue, that issue was never reached and until it was decided no judgment was entered nor could one be properly entered for Hicks.
Since Hicks was not entitled to any judgment while qualified immunity remained open he could not obtain damages, nominal or otherwise, on this record.
(Maj. op. at 155 n. 4).
Although the existence of qualified immunity would have indeed barred plaintiff’s recovery, it is unclear how Hicks’ refusal to testify in any way prejudiced Feeney in establishing that defense. Because qualified immunity is an affirmative defense, the burden of proof is on the party seeking to invoke it. See Skehan v. Board of Trustees of Bloomsburg State College, 538 F.2d 53, 61-62 (3d Cir.), cert. denied, 429 U.S. 979, 97 S.Ct. 490, 50 L.Ed.2d 588 (1976). The Supreme Court has asserted that a party is entitled to qualified immunity as long as his actions do not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Mitchell v. Forsyth, 472 U.S. 511, 524, 105 S.Ct. 2806, 2814, 86 L.Ed.2d 411 (1985) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). Because the qualified immunity inquiry is predicated upon determining what the defendant knew about extant legal norms at the time of the alleged liberty deprivation, Feeney could not have been prejudiced by plaintiffs refusal to be deposed. The evidence, if any, relating to that defense lay solely in Feeney’s control. Contrary to the majority’s conclusion, the district court could have determined the immunity issue on the record before it and rendered final judgment accordingly.
*160I agree with the majority’s conclusion that Hicks’ unwillingness to be deposed prejudiced Feeney’s ability to defend against proof of damages.2 However, given Hicks II’s establishment of a due process violation, fairness dictates that barring plaintiff from proving both actual and punitive damages constitutes a proper alternative sanction to dismissal. See Coca-Cola Bottling Co. of Shreveport, Inc. v. Coca-Cola Co., 110 F.R.D. 363 at 369 (existence of alternate sanctions most important Poulis factor). Because the district court's discovery order was relevant only to damages, the proposed alternative sanction negates any prejudice resulting from Hicks’ conduct. See Insurance Corp. of Ireland, 456 U.S. at 707, 102 S.Ct. at 2106. On the other hand, dismissal under these circumstances effectively condones defendant’s liberty deprivation, thereby contravening our strong presumption against sanctions that decide the issues of a case. See Ali, 788 F.2d at 958.
Concededly, adoption of the alternative sanction would entitle plaintiff to nominal damages based upon defendant’s due process violation, and in the event that the district court rejected Feeney’s qualified immunity defense, to an award of attorney’s fees pursuant to 42 U.S.C. § 1988. See Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 1053, 55 L.Ed.2d 252 (1978) (denial of procedural due process is actionable under section 1983 for nominal damages without proof of actual injury). The majority, however, rejects plaintiff’s entitlement to nominal damages, noting that Hicks’ conduct has improperly transformed this suit into “one for attorney’s fees.”3 (Maj. op. at 157). I disagree. At its essence, this action concerns defendant’s erroneous and unconstitutional confinement of plaintiff at DSM for fifty-four days. The Supreme Court has continually vindicated deprivations of “absolute rights” that have not caused actual injury through the award of nominal damages. See Carey, 435 U.S. at 266, 98 S.Ct. at 1053. As the Court observed in City of Riverside v. Rivera, 477 U.S. 561, 574, 106 S.Ct. 2686, 2694, 91 L.Ed.2d 466 (1986):
And Congress has determined that “the public as a whole has an interest in the vindication of the rights conferred by the statutes enumerated in § 1988, over and above the value of a civil rights remedy to a particular plaintiff....” (citation omitted) Regardless of the form of relief he actually obtains, a successful civil rights plaintiff often secures important social benefits that are not reflected in nominal or relative small damages awards.
Thus, I believe that Hicks’ conduct has not obscured what remains as the preeminent issue in this case — the vindication of a constitutionally protected liberty interest.
The majority attempts to support its narrow construction of the remaining issues in this action by noting that because plaintiff is not a “prevailing party” within the meaning of section 1988, he is not entitled to attorney's fees. (Maj. op. at 157). See Hewitt v. Helms, — U.S. -, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987). The majority correctly implies that Hicks can be a prevailing party only if Feeney is not entitled to qualified immunity. However, as I have already noted, plaintiff’s refusal to be deposed is irrelevant to the resolution of the qualified immunity issue. Thus, plaintiff's failure to attain prevailing party status derives from the district court’s erroneous failure to consider the qualified immunity *161issue on remand, and not from Hicks' conduct.
Finally, I believe that neither the majority nor the district court should have considered counsel’s entitlement to attorney’s fees in determining appropriate sanctions. As the plaintiff observes, Hicks’ entitlement to attorney’s fees “was not a claim which was at issue in the order to provide discovery.” See Insurance Corp. of Ireland, 456 U.S. at 707, 102 S.Ct. at 2107. Indeed, the Supreme Court has asserted that an attorney’s fee award under section 1988 is not “compensation for the injury giving rise to an action. [The] award is uniquely separable from the cause of action to be proved at trial.” White v. New Hampshire Dept. of Empl. Sec., 455 U.S. 445, 452, 102 S.Ct. 1162, 1166, 71 L.Ed.2d 325 (1982).
III.
Therefore, although I would preclude plaintiff from establishing both actual and punitive damages, I would remand the case, as we initially did in Hicks II, for a determination only of Feeney’s entitlement to qualified immunity and for such final disposition as is consistent with this opinion.
. The district court held that Hicks’ confinement resulted from a "random and unauthorized act” of a state officer, rather than from the "state system itself.” See Hicks, 770 F.2d at 378.
. In considering the effect of Hicks’ conduct, the majority observed that Feeney was "prevented from preparing a defense as to the issue of (1) whether his failure to follow constitutionally required procedure caused Hicks’ alleged damages; (2) whether Hicks would have remained at DSH even if the procedures had been followed; and (3) Hicks’ actual damages. (Maj. op. at 155). Each of these factors related to damages and not to liability.
. Similarly, the district court predicated its rejection of an alternative sanction by asserting that Hicks “has lost whatever motivation he may have had to diligently pursue this lawsuit." The court’s conclusion is undermined by its own observation that Hicks’ refusal to be deposed derived from his embarrassment concerning the details of his confinement. Finally, Hicks’ initiative to pursue this litigation is supported by his timely response to defendant’s interrogatories.