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BLD-004 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 ___________ 

 No. 10-1795 

 ___________ 

IN RE: JOHN J. NEALEN, 

 Appellant 

 ____________________________________ 

On Appeal from the United States District Court 

for the Western District of Pennsylvania 

(D.C. Civil No. 09-cv-00072) 

District Judge: Honorable Kim R. Gibson 

 ____________________________________ 

 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 

October 7, 2010 

 Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges

(Opinion filed : October 14, 2010) 

 _________ 

 OPINION 

 _________ 

PER CURIAM 

 John Nealen, proceeding in forma pauperis, appeals from the order of the United 

States District Court for the Western District of Pennsylvania dismissing his appeal for 

lack of prosecution. 
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I. 

 On October 21, 2008, Nealen filed a Chapter 13 bankruptcy petition in the United 

States Bankruptcy Court.1

 On November 7, 2008, the Bankruptcy Court dismissed the 

petition without prejudice because Nealen’s filing had been deficient and he had failed to 

provide the documents necessary to complete the filing within the period specified by the 

Clerk’s Office. Nealen subsequently filed a one-page letter motion titled “Motion to 

Reinstate Case Per Rule 60 F.R.A.P. Motion for 60 Days Additional Time To File Form 

6. Request For Clerk To Provide Said Form 6 To Petitioner./ Americans With Disabilities 

Act Notice of Appeal To The Third Circuit Court of Appeals.” The motion requested 

additional time to file based on the fact that Nealen had requested legal assistance from 

pro bono counsel with no response. He also asserted that he suffered from disabilities 

due to two accidents and high blood pressure. The Bankruptcy Court denied the relief 

requested and ordered that the motion be treated as a Notice of Appeal to the District 

Court. 

Nealen did not file any additional briefing in support of his appeal in the District 

Court. The District Court dismissed the appeal for failure to prosecute and failure to 

1

 This was not Nealen’s first bankruptcy petition. Between November 2007 

 and March 2009, Nealen filed four separate bankruptcy petitions, each of 

 which was dismissed for failure to file documents or comply with 

 procedural rules. See In re Nealen, 407 B.R. 194, 197 (Bankr. W.D. Pa. 

 2009) (summarizing the procedural history of each of Nealen’s bankruptcy 

 cases). 
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follow procedural requirements. The instant appeal followed.2 

II. 

 We have jurisdiction over this appeal under 28 U.S.C. § 1291. We review a 

dismissal for failure to prosecute for abuse of discretion. Jewelcor Inc. v. Asia 

Commercial Co., 11 F.3d 394, 397 (3d Cir. 1993). 

III. 

Under Rule 8001(a) of the Federal Rules of Bankruptcy Procedure, the District 

Court is empowered to dismiss an appeal for failure to prosecute or otherwise follow the 

procedures set out in the Bankruptcy Rules. Fed. R. Bankr. P. 8001(a). In reviewing a 

dismissal for failure to prosecute, we must determine if the District Court properly 

balanced the following six 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 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. Poulis v. State 

Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). Although not all of these 

factors need be met for a district court to find dismissal is warranted, we have always 

 2

 After filing this appeal, Nealen filed motions for reconsideration and 

 Clarification in the District Court. We stayed the appeal pending the 

 District Court’s ruling on those motions. The District Court denied the motions 

on August 5, 2010. Nealen did not appeal. 
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“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.” United States v. 

$8,221,877.16 in United States Currency, 330 F.3d 141, 162 (3d Cir. 2003). Failure to 

consider all of the factors prior to dismissing an action for failure to prosecute constitutes 

an abuse of discretion. See Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 73-74 (3d Cir. 

1987). 

In its order dismissing the appeal, the District Court addressed and weighed each 

of the six Poulis factors. The District Court found that even though Nealen was pro se, 

he was not incompetent and was personally responsible for fulfilling procedural 

requirements. The District Court also found that the Appellee would be prejudiced if the 

appeal went forward on the merits because Nealen had failed to advance any cognizable 

factual or legal argument on appeal, making it difficult for Appellee to formulate a 

response. Nealen’s dilatoriness in failing to file a statement of issues on appeal or 

designate the contents of the record on appeal was also discussed. The District Court 

found that Nealen did not appear to be acting in bad faith, but he had a history of failing 

to complete court filings and follow procedural rules as demonstrated in the District 

Court and the Bankruptcy Court. The District Court evaluated whether an alternative 

sanction such as a monetary penalty would be appropriate, and concluded that such a 

sanction would be unduly harsh given that Nealen was proceeding in forma pauperis. 

Finally, the District Court found that the appeal did not appear to have merit because the 

underlying dismissal stemmed from Nealen’s failure to file necessary documents, and 
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Nealen had provided no briefing or argument to contest the dismissal, other than the onepage letter motion that the Bankruptcy Court construed as a notice of appeal. 

The District Court considered all six Poulis factors and its findings are supported 

by the record. It cannot be said that the District Court abused its discretion in concluding 

that dismissal was warranted. Accordingly, we will affirm the order of the District Court.