CLD-058 NOT PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

___________ 

No. 23-2851 

___________ 

DONALD D. HIGGS, 

 Appellant 

v. 

GARY LANIGAN; 

JOHN DOE(S), employees of JPay; 

JPAY COMPANY 

____________________________________ 

On Appeal from the United States District Court 

for the District of New Jersey

(D.C. Civil Action No. 1-18-cv-08087) 

District Judge: Honorable Renee Marie Bumb 

____________________________________ 

Submitted for Possible Dismissal 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 

January 18, 2024 

Before: KRAUSE, FREEMAN, and SCIRICA, Circuit Judges 

(Opinion filed: February 13, 2024) 

_________ 

OPINION*

_________ 

PER CURIAM 

*

 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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 Donald D. Higgs, proceeding pro se, appeals the District Court’s dismissal of his 

civil rights action for failure to prosecute. For the reasons that follow, we will summarily 

affirm the District Court’s dismissal. 

I 

 In 2018, Higgs filed a federal civil rights complaint under 42 U.S.C. § 1983 while 

incarcerated at Bayside State Prison (“Bayside”). DC ECF 1. He alleged that the named 

defendants had unlawfully retaliated against him for exercising his First Amendment 

rights. Id. In November 2018, the Court issued a screening order pursuant to 28 U.S.C. § 

1915(a) in which, inter alia, it dismissed without prejudice all claims save those against 

defendant Smith and granted Higgs in forma pauperis status. DC ECFs 2, 3. 

Simultaneously, the Clerk of the District Court sent Higgs a letter explaining how to 

obtain service of process by the U.S. Marshals Service (USMS) and explaining that the 

burden of ensuring service occurred rested with Higgs. DC ECF 4. The Clerk received 

Higgs’ completed USM 285 form in December, but erroneously issued summonses only 

to those defendants who had already been dismissed from the action. DC ECF 5, 6. 

 Two subsequent orders sent by the Court to Higgs in January and February 2019 

were returned because Higgs was no longer incarcerated at Bayside, and no forwarding 

address was on file. DC ECFs 8-10. Unknown to the Court, Higgs had been transferred 

to Northern State Prison. DC ECF 20. Because the order reopening the case was returned 

and the Court had not heard from Higgs, in February 2019 the District Court dismissed 

Higgs’ complaint without prejudice under Local Civil Rule 10.1(a), which requires 
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parties to keep the Court appraised of any changes in address. DC ECFs 10, 11. The copy 

of this Order sent to Higgs was also returned as undeliverable. DC ECF 13. 

 More than four years after the order dismissing Higgs’ claim, Higgs filed a motion 

to reopen. DC ECF 16. The Court granted the motion but ordered Higgs to show cause as 

to why the complaint should not be dismissed for failure to prosecute under FRCP 41(b). 

DC ECF 17. In response, Higgs claimed that he had notified the Court via a letter that he 

had been transferred to Northern State Prison and argued that the case should remain 

open and defendant Smith should be served to correct the Court’s clerical error regarding 

service. DC ECF 18. After carefully considering the factors set forth in Poulis v. State 

Farm Fire & Cas. Co., the District Court determined that five of six supported dismissal 

of Higgs’ action for failure to prosecute. DC ECF 20, citing 747 F.2d 863, 868 (3d Cir. 

1984). 

In particular, the Court emphasized that Higgs had been responsible for the 

progress of his case. DC ECF 20 at 6, citing Briscoe v. Klaus, 538 F.3d 252, 258 (3d Cir. 

2008). The Court reasoned that while a clerical error had initially impeded service of 

process, Higgs’ failure to inquire about the status of his case for over four years, or twice 

the length of the statute of limitations for his claim, created substantial prejudice to the 

remaining defendant, who was never notified of the suit. Id. at 6-8, citing Dique v. New 

Jersey State Police, 603 F.3d 181, 185 (3d Cir. 2010). The Court also noted that Higgs 

had reached out and resumed prosecution of another pending matter, Higgs v. Myers, in 

June 2019, but failed to resume or inquire about the instant action. Id. at 8. The Court 

considered other sanctions to be ineffective and issued the order in question dismissing 
4 

the case. Id. The only Poulis factor which arguably cut against dismissal was the merit of 

Higgs’ remaining claims, which had survived screening under 28 U.S.C. § 1915A. Id. at 

8-9. Based on this analysis, the District Court dismissed Higgs’ case with prejudice for 

failure to prosecute. Id. This appeal followed. 

II 

We have jurisdiction under 28 U.S.C. § 1291 and review a District Court’s 

decision to dismiss a plaintiff’s case under Federal Rule of Civil Procedure 41(b) for an 

abuse of discretion. Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002). Summary 

action is appropriate if there is no substantial question presented in the appeal. See 3d 

Cir. L.A.R. 27.4. We may summarily affirm a District Court’s decision “on any basis 

supported by the record” if the appeal fails to present a substantial question. Murray v. 

Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam). 

In exercising its discretion to dismiss for failure to prosecute, a district court must 

first consider a variety of factors, including “(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). 
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III 

On appeal, Higgs again argues that he properly completed USM 285 to effectuate 

service, and that he complied with the District Court’s change of address rules by sending 

a letter notifying the Clerk of his impending transfer to Northern State Prison. CA ECF 8. 

Notwithstanding Higgs’ efforts, we cannot say that the District Court abused its 

discretion in dismissing the case. 

The letter the Clerk sent to Higgs along with the USM 285 forms plainly states 

that the litigant must inquire of the USMS as to whether service has been made. DC ECF 

4. And following any attempt to advise the District Court of his change of address, Higgs 

failed to inquire about this litigation for over four years, or twice the length of the statute 

of limitations for his action against a defendant who was never served and was thus 

unaware of the need to mount a defense. DC ECF 20 at 7. “[S]tatutes of limitations serve 

compelling policy interests,” including “... protect[ing] defendants from having to 

confront controversies in which the search for truth may be thwarted by the loss of 

evidence, the fading of memories, or the disappearance of witnesses,” and to relieve 

courts of the burden of stale claims. National Iranian Oil Co. v. Mapco Intern., 983 F.2d 

485, 493 (3d Cir. 1992) (citations omitted). As the District Court observed, Higgs’ 

inactions frustrated these interests. 

Accordingly, we will affirm the judgment of the District Court.