Benjamin Smith v. Officer Shady

Amended CLD-131 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-4536
___________
BENJAMIN SMITH,
Appellant
v.
OFFICER SHADY; SGT. KARCHNER; LT. KNEPP; LT. DALE;
MR. KESTETTER; LT. KEARN; MUHAMMAD AJJEH-CHAPLAIN;
CAPTAIN EATON; MR. DICKSON; FRANCIS DOUGHERTY; FRANKLIN
TENNIS; DAVID VAUGHN; JEFFREY BEARD; EARL WALKER
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 05-cv-02663)
District Judge: Honorable John E. Jones III
____________________________________
Submitted for Possible Dismissal Due to a Jurisdictional Defect
or Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit
LAR 27.4 and I.O.P. 10.6
February 14, 2008
Before: AMBRO, FUENTES and JORDAN, Circuit Judges
(Opinion filed: March 4, 2008)
_________
OPINION
_________
PER CURIAM
Benjamin Smith appeals the District Court’s order dismissing his § 1983 action.

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The procedural history of this case and the details of Smith’s claims are well known to the
parties, set forth in the District Court’s thorough opinion, and need not be discussed at
length. Briefly, Smith filed a complaint alleging sexual assault, inadequate investigation,
and retaliation. On May 1, 2007, Smith refused to be deposed by appellees’ counsel
despite counsel’s warning that appellees would move to have the case dismissed as a
sanction. The District Court denied appellees’ motion for sanctions to the extent that it
sought dismissal but warned Smith that a failure to be deposed would result in the
dismissal of his case. On June 11, 2007, Smith appeared for the deposition but refused to
participate and gave non-responsive answers. The District Court granted appellees’
motion for sanctions and dismissed the action by order entered October 25, 2007.
Smith’s notice of appeal, dated November 25, 2007, was received by the District Court on
December 3, 2007.
Smith’s notice of appeal was not received by the District Court until after the time
to appeal expired on Monday, November 26, 2007. However, because Smith swore under
penalty of perjury that it was given to prison officials for mailing on November 26, 2007,
we find that the notice of appeal was timely filed. See Fed. R. App. P. 4(c). Thus, we
have jurisdiction over the appeal.
Because appellant is proceeding in forma pauperis on this appeal, we must analyze
his appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). Under §
1915(e)(2)(B), we must dismiss an appeal if the action (i) is frivolous or malicious, (ii)

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fails to state a claim upon which relief may be granted, or (iii) seeks monetary damages
from a defendant with immunity. An action or appeal can be frivolous for either legal or
factual reasons. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
We review the District Court’s order dismissing the action for as a sanction for an
abuse of discretion. Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 868 (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, 747 F.2d at
867-8 (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.
Id. at 868 (emphasis omitted). 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.
We agree with the District Court that Smith was personally responsible for his
refusal to submit to the deposition and that the appellees were prejudiced by his conduct.
Smith’s bad faith was evidenced by the lack of merit of his reasons for refusing and the
verbal games he played at the second deposition. His prior refusal to submit to a
deposition demonstrates his history of dilatoriness. As for the effectiveness of other

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While we do not reach the merits of Smith’s claims, we note that his allegations that1
an appellee scratched his penis causing it to bleed in four places and hurt for ten days
were not mentioned in his grievance or original complaint. As for Smith’s claims that his
cable service was turned off in retaliation for complaining about the alleged sexual
assault, we note that it appears from his own grievances that the service was turned off
because he did not have sufficient funds in his account. As for his claims that his legal
mail was opened in retaliation, it appears that his mail was opened according to prison
policy.
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sanctions, the District Court noted that its prior warning and disallowance of Smith’s
discovery requests were ineffective sanctions for his refusal to participate in his first
deposition. The District Court noted that, based on the pleadings, Smith’s claims may
have merit. However, the District Court found that the balance of the Poulis factors1
weighed in favor of dismissal. We agree.
For the above reasons as well as those set forth by the District Court, we will
dismiss the appeal under 28 U.S.C. § 1915(e)(2)(B).

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