Eric Moultrie v. Luzerne County Prison

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3215
ERIC MOULTRIE,
Appellant,
v.
LUZERNE COUNTY PRISON; COL. PIETHOUSKI;
SGT. JOHN DOE; LIEUTENANT COL. LYNCH;
DR. JOHN DOE; NURSE JOHN DOE
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 3:06-cv-01153)
District Judge: Honorable A. Richard Caputo
Submitted Under Third Circuit LAR 34.1(a)
MARCH 19, 2008
Before: SLOVITER, BARRY AND GREENBERG, CIRCUIT JUDGES.
(Opinion Filed April 7, 2008)
OPINION
PER CURIAM
Plaintiff, Eric Moultrie, an inmate at the State Correctional Institute in Greensburg,
Pennsylvania, appeals from the District Court’s dismissal of his complaint against various
prison officials filed pursuant to 42 U.S.C. § 1983. Moultrie’s complaint alleges

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constitutional violations arising from the use of excessive force by a correctional officer,
which occurred after Moultrie became involved in an argument and altercation with
another inmate. He also alleges that prison staff were deliberately indifferent to his
medical needs that arose from the incident, in violation of the Eighth and Fourteenth
Amendments.
On May 7, 2007, Defendants filed a Motion for Summary Judgment to which
Moultrie failed to respond. By Order of June 18, 2007, the District Court directed
Moultrie to file a Brief in Opposition and Counter-Statement of Facts to Defendants’
Motion within twenty days. The Order warned Moultrie that the Court would dismiss the
case under Federal Rule of Civil Procedure 41(b) if he failed to comply with the Court’s
directive and that any appeal of the Order would be deemed frivolous. Moultrie did not
comply with the Court’s Order within the required time period, nor did he request an
extension of time in which to submit the required briefing. Consequently, the Court
dismissed his case for failure to prosecute and failure to comply with the Court’s Order.
See Fed. R. Civ. P. 41(b). By orders dated July 26, 2006 and May 21, 2007, the Court
also denied Moultrie’s motions for appointment of counsel. Moultrie filed a timely notice
of appeal.
We review the District Court’s Order dismissing the case for abuse of discretion.
Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002). “While we defer to the
District Court’s discretion, dismissal with prejudice is only appropriate in limited
circumstances and doubts should be resolved in favor of reaching a decision on the

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merits.” Id. We have emphasized that dismissal is “extreme,” and therefore “must be a
sanction of last, not first, resort.” Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863,
869 (3d Cir. 1984).
Prior to the dismissal of an action, to effectuate our review of whether dismissal
was proper, we require that the District Court make explicit findings regarding the factors
enumerated in Poulis. See Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 74 (3d Cir. 1987);
see also United States v. $8,221,877.16 in U.S. Currency, 330 F.3d 141, 161 (3d Cir.
2003) (“We have opined that [the Poulis factors] must be weighed by a district court in
determining whether the harsh sanction of dismissal is justified”). The Poulis factors that
the District Court must consider are:
(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.
Poulis, 747 F.2d at 868 (emphasis in original).
On appeal, this Court must determine whether the District Court properly balanced
the Poulis factors and whether the record supports its findings. Livera v. First Nat’l State
Bank of N.J., 879 F.2d 1186, 1194 (3d Cir. 1989) (citing Hicks v. Feeney, 850 F.2d 152
(3d Cir. 1988)); see also Emcasco, 834 F.2d at 74 (noting that “[i]n order that we may
properly exercise our function of reviewing for abuse of discretion, we have [ ] required
the district court to make explicit findings concerning the factors it must consider in

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1 We note that evidence in the record is relevant to the sixth factor of the Poulis
analysis, as well as the merits of one or more of Moultrie’s claims. For example, with
regard to the deliberate indifference claim, Defendants have submitted the uncontradicted
affidavit of Nurse John Burke who chronicles the medical treatment that Moultrie
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rendering judgment by . . . dismissal”).
Here, the District Court neither cited Poulis nor evaluated the history of this case
in light of the Poulis factors before dismissing pursuant to Rule 41(b). Appellees rely on
Ware v. Rodale Press, Inc., 322 F.3d 218, 220 (3d Cir. 2003), to argue that dismissal is
warranted despite the District Court’s failure to expressly apply Poulis. In Ware, the
Court noted that each factor of Poulis, “need not be satisfied for the trial court to dismiss
a claim.” Id. at 221 (citation omitted). However, in Ware, the district court explained its
findings with regard to each of the six Poulis factors, and based its conclusion on a
balance of those findings. Id. at 222. Although we allowed in Ware that not every factor
need be satisfied, we nonetheless observed that each factor “should be weighed by the
district courts in order to assure that the ‘extreme’ sanction of dismissal . . . is reserved for
the instances in which it is justly merited.” Id. at 221-22 (citation omitted); see also
$8,221,877.16 in U.S. Currency, 330 F.3d at 162 (explaining that “we have always
required consideration and balancing of all six of the factors, and have recommended the
resolution of any doubts in favor of adjudication on the merits”).
Appellees concede that the District Court made no express finding on the second
factor regarding prejudice, nor the sixth factor regarding the meritoriousness of
Moultrie’s claim.1 And although the District Court’s order can be read to cursorily

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received subsequent to his altercation with another inmate.
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address factor number three, Moultrie’s history of dilatoriness, the Court makes no
explicit finding as to factors one and four, his personal responsibility and willfulness in
failing to prosecute his claim, and fails to conduct the required analysis of factor five,
alternative sanctions. Because the District Court did not explain its findings with regard
to any of the six Poulis factors, or conduct the requisite balancing, we must conclude that
the District Court erred in dismissing Moultrie’s complaint. See Livera, 879 F.2d at
1194. Given the record presented, we will forego the opportunity to conduct our own
Poulis test as it would require factual findings outside the parameters of our review. See
id.
By failing to conduct the Poulis balancing test, the District Court abused its
discretion; therefore, a remand to the District Court for consideration of the Poulis factors
is required. See id. at 1188; see also $ 8,221,877.16 in U.S. Currency, 330 F.3d at 162
(remanding so that district court could consider two factors it had not considered, rather
than re-balancing all factors at appellate stage). Accordingly, we will vacate the District
Court’s order entered July 13, 2007, and remand the case to the District Court for further
proceedings. On remand, the District Court may consider whether the matter may be ripe
for summary judgment on, at least, the deliberate indifference claim, in light of Nurse
Burke’s affidavit.
Finally, Appellant challenges the District Court’s denials of his motions for the

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appointment of counsel, which we review for abuse of discretion. See Tabron v. Grace, 6
F.3d 147, 158 (3d Cir. 1993). Both of the District Court’s memoranda denying
Moultrie’s motions for appointment of counsel identify and analyze the relevant Tabron
factors and we cannot conclude at this stage in the proceedings that its denials constitute
an abuse of discretion. However, if the District Court concludes on remand that dismissal
of Moultrie’s complaint is unwarranted, the Court should also reconsider its denial of
Moultrie’s motions for appointment of counsel.
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