DLD-133                                                  NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                                No. 11-4159
                                ___________

                       DONALD MERRILL WERTZ,
                                     Appellant

                                      v.

COUNTY OF BLAIR, PENNSYLVANIA; PRESIDENT JUDGE JOLENE KOPRIVA;
JUDGE CARPENTER; JUDGE MILLIRON; BLAIR COUNTY COMMISSIONERS;
                          JUDGE DOYLE
               ____________________________________

                On Appeal from the United States District Court
                   for the Western District of Pennsylvania
                        (D.C. Civil No. 3-10-cv-00276)
                  District Judge: Honorable Kim R. Gibson
                 ____________________________________

                    Submitted for Possible Summary Action
               Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 March 8, 2012
          Before: AMBRO, JORDAN and VANASKIE, Circuit Judges


                       (Opinion filed: March 13, 2012)
                                 _________

                                  OPINION
                                  _________

PER CURIAM




                                      1
       Donald Merrill Wertz was civilly committed to a mental institution in 1983 after

he was found not guilty of murder by reason of insanity. In November 2010, Wertz filed

a pro se complaint in the District Court pursuant to 42 U.S.C. § 1983 alleging that his

Fourteenth Amendment rights had been violated in connection with a re-commitment

hearing that took place in June 2009. Specifically, Wertz claimed that the court, in

reaching its decision to recommit him, relied in part on unsubstantiated testimony that he

“drove [his] car in[to] a group of people and shot at a lady” in 1978. (Compl., Dist. Ct.

Dkt. # 6, ¶ IV.) As relief, Wertz asked that the “false evidence” be “removed from [his]

records,” and requested money damages as well as his immediate release. (Id.)

       On December 7, 2010, the Magistrate Judge entered an order instructing Wertz to

provide the following documents to the Clerk of Court on or before December 28, 2010:

proper instructions and U.S. Marshal Form 285 for service upon the defendants; a

completed notice and waiver of summons; and a copy of the complaint for each

defendant. 1 When Wertz failed to file the requested documents, the Magistrate Judge

issued an order to show cause why the case should not be dismissed. In the order, the

Magistrate Judge instructed Wertz to submit a response on or before January 20, 2011.

       Wertz failed to respond to the show cause order. As a result, the Magistrate Judge

considered whether the complaint should be dismissed pursuant to Rule 41(b) of the

Federal Rules of Civil Procedure. See Fed. R. Civ. P. 41(b) (authorizing dismissal for


       1
      The docket report indicates that the forms were forwarded to Wertz on
December 16, 2010.
                                             2
failure to prosecute or comply with court’s orders). After reviewing the factors set forth

in Poulis v. State Farm Fire and Casualty Co., 

, 868 (3d Cir. 1984), the

Magistrate Judge recommended that Wertz’s complaint be dismissed. The District Court

agreed, and, by order entered August 9, 2011, dismissed the complaint with prejudice. 2

Wertz now appeals from the District Court’s order.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review

the District Court’s order for an abuse of discretion. 

. We have

reviewed the record and are compelled to conclude that the Magistrate Judge and District

Court misconstrued some of Wertz’s claims in determining that dismissal was

appropriate under the Poulis framework. In her Report and Recommendation, the

Magistrate Judge stated that Wertz’s complaint challenged the underlying civil

commitment order that was entered after his 1983 conviction, and the District Court

agreed. While Wertz’s complaint can be understood to challenge the 1983 commitment

order, it also raises a challenge to the 2009 re-commitment hearing. To the extent that the

Magistrate Judge and the District Court did not consider that aspect of the pro se

complaint, they misread Wertz’s allegations.

       Accordingly, we will vacate the District Court’s August 9, 2011 order and

summarily remand this matter for further proceedings. See Third Cir. LAR 27.4 and



       2
        Although the District Court’s order did not specify that dismissal was with
prejudice, a dismissal under Rule 41(b) operates as an adjudication on the merits
unless the order states otherwise. See Fed. R. Civ. P. 41(b).
                                             3
I.O.P. 10.6. We express no opinion as to the merit of Wertz’s claims or the weight to be

afforded to any of the Poulis factors. 3




       3
        To the extent that Wertz states in his complaint that he seeks immediate
release from civil commitment, we note that his sole federal remedy is a writ of
habeas corpus. See Preiser v. Rodriguez, 

, 500 (1973).
                                            4