2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-1-2010

Melvin Lindsey v. Jeffrey Beard

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-3091

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Recommended Citation

"Melvin Lindsey v. Jeffrey Beard" (2010). 2010 Decisions. Paper 162.

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BLD-042 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-3091

___________

MELVIN LINDSEY,

Appellant

v.

DONNA ROMAN; ROBERT WADDELL; JENNIE MACKNIGHT;

SALLY GENNARINI; JOHN KERESTES; JEFFREY A. BEARD;

PENNSYLVANIA DEPARTMENT OF CORRECTIONS

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(M.D. Pa. No. 10-cv-00953)

District Judge: Honorable James M. Munley

____________________________________

Submitted for Possible Dismissal Due to a Jurisdictional Defect

or 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

November 18, 2010

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

(Opinion filed: December 1, 2010)

_________

OPINION

_________

PER CURIAM

Melvin Lindsey, an inmate presently confined by the Pennsylvania Department of 

Corrections, appeals from orders of the District Court dismissing his complaint without 
2

prejudice and denying his subsequent motion for reconsideration. For the reasons that 

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

I.

In April 2010, Lindsey filed this civil rights complaint under 42 U.S.C. § 1983. 

By administrative order dated May 6, 2010, the District Court gave Lindsey thirty days to 

either pay the $350.00 filing fee or complete an application to proceed in forma pauperis

(IFP). Lindsey filed an incomplete IFP application – it did not include an authorization 

form – two weeks later. In June 2010, the District Court dismissed Lindsey‟s civil action 

without prejudice because “[t]hirty (30) days have elapsed from the date of our Order and 

the Plaintiff has neither filed an authorization form nor requested an extension of time in 

which to do so.” 

Lindsey then moved for reconsideration of the District Court‟s order, claiming that 

his failure to timely file a complete IFP application was due to forces “beyond his 

control.” Lindsey attached to his motion a filled-out authorization form. In July 2010, 

the District Court denied the motion for reconsideration, concluding that “petitioner fails 

to rely on one of three major grounds for reconsideration . . . and merely reargues matters 

addressed by the court and disposed of in the previous order.”1 The District Court 

 

1

The District Court did not consider whether Lindsey‟s motion for reconsideration 

could be construed as a motion for relief from judgment, based on excusable neglect, 

under Federal Rule of Civil Procedure 60(b)(1). Any error was harmless, however, 

because Lindsey‟s allegations – that his failure to file an authorization form was the 

result “of a lack of information and misfiling” – are belied by the record. See Nara v. 

Frank, 488 F.3d 187, 193-94 (3d Cir. 2007) (“The test for „excusable neglect‟ is 
3

instructed that Lindsey “may file a new action.” The District Court reinforced that 

instruction in a footnote to its order, stating that its previous “dismissal was without 

prejudice to plaintiff‟s right to refile the action with the appropriate forms.” Lindsey 

appealed.

II.

We must first consider our jurisdiction. The District Court dismissed Lindsey‟s 

civil action without prejudice. The general rule is that a without-prejudice dismissal “is 

neither final nor appealable because the deficiency may be corrected by the plaintiff 

without affecting the cause of action.” Borelli v. City of Reading, 532 F.2d 950, 951 (3d 

Cir. 1976) (per curiam). Here, however, the District Court‟s July 2010 order made clear 

to Lindsey that the defect in his filing could not be cured in the civil action at issue, and 

that he would have to “file a new action” to advance his civil rights claims. See Deutsch 

v. United States, 67 F.3d 1080, 1083 (3d Cir. 1995). Therefore, we have jurisdiction 

under 28 U.S.C. § 1291 notwithstanding the District Court‟s without-prejudice dismissal.

III.

A District Court‟s dismissal for failure to pay fees is reviewed for abuse of 

discretion. See Jones v. Zimmerman, 752 F.2d 76, 78 (3d Cir. 1985). That same 

standard is used in reviewing the denial of a motion for reconsideration. See United 

 

equitable, and requires us to weigh the „totality of the circumstances.‟”) (citation 

omitted). 

 
4

States v. Dupree, 617 F.3d 724, 732 (3d Cir. 2010). We may take summary action if an 

appeal presents no substantial question. See 3d Cir. LAR 24.7; I.O.P. 10.6. 

We conclude that the District Court did not abuse its discretion in dismissing 

Lindsey‟s civil action for failure to either pay the associated filing fee or file a completed 

IFP application. Lindsey‟s IFP application was plainly lacking an authorization form, 

even though the District Court‟s May 6, 2010 administrative order explained to Lindsey 

that the form was a necessary component. The administrative order also indicated that 

“[a]n application to proceed in forma pauperis and an authorization form [were] 

enclosed” in the District Court‟s mailing.

We also conclude that the District Court did not abuse its discretion in denying 

Lindsey‟s motion for reconsideration. “The purpose of such a motion is to correct a clear 

error of law or to prevent a manifest injustice in the District Court‟s original ruling.” 

Dupree, 617 F.3d at 732. The District Court committed no error of law in dismissing 

Lindsey‟s case. Moreover, we cannot say that there was some manifest injustice latent in 

the District Court‟s decision; Lindsey can refile his complaint, accompanied by the 

documents that are required to obtain IFP status, at any time within the applicable 

limitations period.

2

 

2 Based on Lindsey‟s allegations, the earliest complained-of civil rights violation 

appears to have occurred “on or about August 14, 2009.” Despite the time exhausted 

while Lindsey pursued this appeal, he should have no difficulty with timely refiling 

his complaint. See Smith v. Holtz, 87 F.3d 108, 111 n.2 (3d Cir. 1996) (“In § 1983 

cases, federal courts apply the state personal injury statute of limitations, which in 

[Pennsylvania] is two years.”) (citations omitted).
5

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

Appellant‟s motion for remand under Rule 27, Fed. R. App. P., is denied.