Jeffrey E. Jackson v. TODD CASE, Pfc.

UNREPORTED- NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 03-3500
________________
JEFFREY E. JACKSON,
Appellant
v.
TODD CASE, Pfc.; DOVER
CITY POLICE DEPARTMENT
AND JOHN DOES
________________________________
On Appeal From the United States District Court
For the District of Delaware
(D.C. Civ. No. 98-cv-00138)
District Judge: Honorable Kent A. Jordan
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
February 6, 2004
Before: SLOVITER, NYGAARD AND CHERTOFF, Circuit Judges.
(Filed: February 6, 2004)
_______________________
OPINION
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PER CURIAM
Appellant Jeffrey E. Jackson appeals from an order entered by the United States
District Court for the District of Delaware granting defendants’ motion to dismiss for
failure to prosecute and for failure to comply with a court order. For the reasons that
follow, we will affirm.
In March 1998, Jackson filed a civil rights complaint against Police Officer Todd
Case, the City of Dover Police Department, and John Does. In his complaint, Jackson
asserted that, on November 1, 1996, defendant Todd Case slammed his face into a church
wall and broke his nose, and that, shortly thereafter, Jackson was arrested and
incarcerated on unrelated charges. With the help of a fellow inmate, Jackson filed a
motion for appointment of counsel, which was denied. After Jackson had been released
from prison, the District Court ordered that a scheduling conference be held on October
25, 2001. One week before the conference, Jackson requested that the conference be
postponed so that he could find an attorney. The conference was not postponed and
Jackson did not attend. The District Court scheduled the trial to be held on January 14,
2001, and directed the parties to exchange witness and exhibit lists by December 14,
2001. Jackson failed to submit a witness or exhibit list by the deadline. Defendants’
counsel wrote to Jackson informing him that he had missed the deadline and requesting
his lists. Jackson responded by filing a motion for subpoenas on January 8, 2002. The
District Court conducted a teleconference regarding the motion. In order to ensure the

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service of the subpoenas in time to secure the witnesses for trial, the Court rescheduled
the trial for March 25, 2002.
The District Court entered another scheduling order setting new deadlines.
Jackson once again failed to serve and file his witness and exhibit lists and failed to
respond to a letter from defendants’ counsel informing him that he had missed the
deadline. Three days before the trial, Jackson filed a motion requesting that the trial be
postponed so that he could find an attorney. The District Court denied the motion, after a
teleconference. On March 25, 2002, the trial was cancelled after Jackson telephoned the
District Court and claimed to be ill. Defendants did not learn of the cancellation until
they had arrived at the courthouse.
Subsequently, the District Judge to whom the case was assigned resigned. The
case was reassigned in January 2003. On February 26, 2003, because there had been no
recent activity in the case, the District Court ordered Jackson to show cause why the
action should not be dismissed for failure to prosecute. He responded by requesting an
extension of time to obtain counsel. By order entered March 13, 2003, the District Court
granted his request. Jackson was unable to obtain counsel. On April 11, 2003, the
District Court entered a third amended scheduling order, which required the filing of the
proposed final pre-trial order on July 31, 2003; scheduled the final pre-trial conference
for August 5, 2003; and scheduled trial for August 11, 2003. The order also required
Jackson to submit his portion of the proposed final pre-trial order to defendants’ counsel

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by July 1, 2003. Jackson failed to do so. Defendants’ counsel wrote to Jackson on two
separate occasions requesting that he submit his portion of the proposed final pre-trial
order. Jackson never submitted his portion. Consequently, defendants filed a motion to
dismiss for failure to prosecute and for failure to comply with a court order.
On August 5, 2003, the Court conducted the final pre-trial conference. After
hearing argument on the motion to dismiss, the District Court applied the Poulis factors to
Jackson’s case and concluded that the factors weighed significantly in favor of dismissal.
See Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 866 (3d Cir. 1984). The next
day, the District Court entered an order granting defendants’ motion and dismissing the
case. Jackson appeals. Jackson’s motion to file a supplemental informal brief requests
that the informal brief be considered as a supplemental brief. The Court grants that
motion, and the Clerk is directed to docket it as such. It has been considered in
connection with this appeal.
We review the District Court’s dismissal for abuse of discretion. See Adams v.
Trustees of New Jersey Brewery Employees’ Pension Trust Fund, 29 F.3d 863, 873 (3d
Cir. 1994). To assess the District Court’s exercise of discretion, we must evaluate its
balancing of the following six factors: 1) the extent of the party’s personal responsibility;
2) the prejudice to the adversary caused by the failure to meet scheduling orders; 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; and 6) the

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meritoriousness of the claim or defense. See Poulis, 747 F.2d at 866. Each factor need
not be satisfied for the trial court to dismiss a claim. See Ware v. Rodale Press, Inc., 322
F.3d 218, 221 (3d Cir. 2003).
With respect to personal responsibility, the District Court properly assigned
responsibility for failing to comply with its orders solely to Jackson, because he was
proceeding pro se. The fact that Jackson was unable to find an attorney to represent him
during the District Court proceedings, while regrettable, did not excuse his failure to
comply with the District Court’s scheduling orders.
In considering the second Poulis factor, the District Court concluded that
Jackson’s failure to meet scheduling orders and other pretrial procedures prejudiced the
defendants. We agree. We further agree with the District Court that Jackson’s repeated
attempts to postpone scheduled trial dates evidences a pattern of dilatoriness under the
third Poulis factor and that his failure to comply with court orders amounts to willful
conduct under the fourth Poulis factor.
On appeal, Jackson claims that he did not respond to the District Court’s
scheduling orders because he had forwarded them to the Delaware Correctional Center to
the individual who was filing the paperwork in his case. Jackson’s claim is belied by the
record. Jackson had been released from prison before the District Court issued its first
scheduling order and there is no indication that, subsequent to his release from prison, any
other individual assisted him in filing court documents. Even if Jackson had forwarded

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the orders to someone else, he fails to explain why he continued to do so after the Court
warned him that his case could be dismissed for failure to prosecute.
Regarding the fifth factor, the District Court properly found that a lesser sanction
would not have been an effective alternative. Because Jackson proceeded in forma
pauperis in the District Court, any monetary sanction would have been futile. See
Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002). Finally, we agree with the
District Court that the last factor, whether Jackson’s claim appears meritorious, is best
treated as neutral.
Upon balancing all six factors, it is clear the District Court did not abuse its
discretion in dismissing Jackson’s case for failure prosecute and to comply with its
orders. Accordingly, we will affirm the District Court’s August 6, 2003 order. We
decline to refer Jackson’s motion for an initial en banc hearing to the Court en banc.

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TO THE CLERK:
Please file the foregoing opinion.
/s/ Dolores K. Sloviter
Circuit Judge

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