Luisa M. Liberto; Jeffrey M. Liberto v. Geisinger Hospital

CLD-021 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-2012
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LUISA M. LIBERTO; JEFFREY M. LIBERTO,
Appellants
v.
GEISINGER HOSPITAL; JANET SHERMAN, Regional Director, Patient Access
Central Region; JAN LETTEER, Human Resources Generalist; CARI DEPACK,
Senior Access Rep.; THERESA PHILLIPS, Patient Access Rep.; WENDY LOW,
Manager, Patient Access Services; DR. DAVID T. FEINBERG; DIANE PARDOE,
Volunteer Coordinator; SHELLY LEE TYSON, Director of Volunteer Services;
JOSH WOLFE, Human Services Generalist; STACEY FISHER, Senior Director,
Guest Services; LISA KOBELIS, PAC; VALERIE MOHUTSKY, Manager, Workman's
Compensation
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 4-17-cv-02320)
District Judge: Honorable Jennifer P. Wilson
____________________________________
Submitted for Possible
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
October 29, 2020
Before: RESTREPO, MATEY, and SCIRICA, Circuit Judges

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(Opinion filed November 24, 2020)
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OPINION*
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PER CURIAM
Appellants Luisa and Jeffrey Liberto, proceeding in forma pauperis and pro se,
appeal from the dismissal of their complaint for failure to prosecute. Because the appeal
presents no substantial question, we will summarily affirm the judgment of the District
Court with one modification. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.
On December 15, 2017, Luisa Liberto and her son, Jeffrey Liberto, initiated an
employment discrimination action in the District Court. The Libertos amended their
complaint. The defendants filed a motion to dismiss the amended complaint or for a
more definite statement under Federal Rules of Civil Procedure 12(b)(6) and (e). On
August 20, 2018, the District Court granted the defendants’ motion and dismissed the
amended complaint without prejudice to the Libertos’ filing a second amended
complaint. Rather than file a new complaint, the Libertos appealed. We dismissed the
appeal for failure to prosecute on February 27, 2020. See C.A. No. 18-2990.
On February 28, 2020, a Magistrate Judge ordered the Libertos to file a second
amended complaint on or before March 27, 2020. The order warned them that failure to
do so could result in the dismissal of the action pursuant to Federal Rule of Civil
Procedure 41. The Libertos did not file a new complaint. On March 30, 2020, the
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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Magistrate Judge recommended dismissing the action for failure to prosecute. The
Libertos did not file objections to the Report and Recommendation (“R&R”). The
District Court adopted the R&R and dismissed the Libertos’ amended complaint with
prejudice. The Libertos appealed. In this Court, they have filed a motion for
appointment of counsel.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review
the District Court’s dismissal of the amended complaint pursuant to Federal Rule of Civil
Procedure 41(b) for an abuse of discretion. Briscoe v. Klaus, 538 F.3d 252, 257 (3d Cir.
2008). Our review is
guided by the manner in which the trial court balanced the following
factors . . . and whether the record supports its findings: (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 . . . 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 & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984) (emphasis
omitted). “Each factor need not be satisfied for the trial court to dismiss a claim.” Ware
v. Rodale Press, Inc., 322 F.3d 218, 221 (3d Cir. 2003). Although “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) (per curiam), such decisions are given “great deference,” Mindek v.
Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992), and a district court may sua sponte dismiss
for failure to prosecute, see Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 341

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(3d Cir. 1982).
We agree with the District Court’s conclusion that the Poulis factors weighed in
favor of dismissal. As the Magistrate Judge’s thorough R&R discussed, the Libertos
were given several opportunities to amend their complaint and put on notice that their
failure to do so could result in dismissal. The appellants have demonstrated a pattern of
seemingly intentional dilatoriness in both the District Court and this Court. Moreover,
the District Court’s attempted lesser sanction (i.e., dismissing the complaint without
prejudice to file an amendment) was ineffective. Indeed, given the Libertos’ failure to
replead, “it is difficult to conceive of what other course the court could have followed.”
In re Westinghouse Sec. Litig., 90 F.3d 696, 704 (3d Cir. 1996) (quotation marks
omitted). Thus, the District Court did not err in dismissing the Libertos’ complaint.
We note, however, that the Libertos’ filings in the District Court and on appeal
indicate that Jeffrey is incompetent to represent himself in federal court. See, e.g., 3d
Cir. ECF No. 7 at 1. Since he was not represented by counsel, the dismissal as to him
should be without prejudice. See Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 883
(3d Cir. 1991).
Accordingly, we will affirm the District Court’s dismissal for failure to prosecute
with the modification that, as to Jeffrey Liberto, the dismissal is without prejudice. The
motion for appointment of counsel is denied as to both appellants.

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