2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-28-2010

Surf Moore v. State of NJ

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1775

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Recommended Citation

"Surf Moore v. State of NJ" (2010). 2010 Decisions. Paper 1116.

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ALD-225 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-1775

___________

SURF MOORE,

Appellant

v.

STATE OF NEW JERSEY

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 09-cv-04595)

District Judge: Honorable Garrett E. Brown, Jr.

____________________________________

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

June 17, 2010

Before: SLOVITER, AMBRO AND SMITH, Circuit Judges

(Opinion filed: June 28, 2010)

_________

OPINION

_________

PER CURIAM

Appellant, Surf Moore, proceeding pro se, appeals from the District Court’s dismissal

of his complaint as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). For the reasons
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stated herein, we will summarily vacate and remand.

In September 2009, Moore filed a complaint in the United States District Court for

the District of New Jersey challenging a fine imposed under New Jersey law. Although the

complaint is vague and confusing, it appears that Moore alleged a due process violation in

response to an arrest following his failure to pay a fine. However, Moore provided the court

with only these minimal facts in his complaint and cited verbatim 28 U.S.C. § 1343, 28

U.S.C. § 2462, the Fourteenth Amendment, and the Fifth Amendment. Before directly

quoting each of the above-mentioned statutes and constitutional amendments, Moore asserted

two major claims: 1) the New Jersey statute is vague and uncertain; and 2) the New Jersey

statute is in conflict with a federal statute. The District Court dismissed the complaint as

frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) for the following reasons: 1) Moore failed

to provide a “short and plain statement of the claim showing that the pleader is entitled to

relief” in accordance with Fed. R. Civ. P. 8(a)(2); and 2) he failed to state “sufficient factual

matter” to show that any potential claims are facially plausible. See Ashcroft v. Iqbal, 129

S. Ct. 1937, 1948-49 (2009). Moore filed a timely notice of appeal. 

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

has been granted in forma pauperis status pursuant to 28 U.S.C. § 1915, we review this

appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). An appeal must be

dismissed under § 1915(e)(2)(B) if it has no arguable basis in law or fact. See Neitzke v.

Williams, 490 U.S. 319, 325 (1989). We may take summary action on an appeal if it presents
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no substantial question. See 3d Cir. LAR 27.4. 

When the District Court dismisses a complaint for failure to state a claim under 28

U.S.C. § 1915(e)(2), the District Court must allow the litigant leave to amend his complaint

unless any amendment would be inequitable or futile. See Grayson v. Mayview State Hosp.,

293 F.3d 103, 106 (3d Cir. 2002). Here, the District Court correctly concluded that Moore’s

complaint failed to state a claim, but it failed to offer Moore an opportunity to file an

amended complaint in order to clarify his allegations. See id.; see also Phillips v. County

of Allegheny, 515 F.3d 224, 231-36 (3d Cir. 2008) (clarifying that the pleading standards

under Rules 8 & 12(b)(6) require that the District Court must give a plaintiff the opportunity

to amend her complaint prior to dismissal, unless amendment would be futile). While we

agree that Moore’s pleadings failed to establish sufficient factual background to ascertain

whether a basis for the claims exist, an amended complaint providing additional details may

reveal information that will allow the court to determine a basis for Moore’s claims. We

therefore conclude that, without a finding of futility, the District Court should uphold its

obligation to allow Moore to file an amended complaint. 

Accordingly, because there is no substantial question presented, we will summarily

vacate and remand this appeal with instructions to the District Court to grant Moore leave

to amend his complaint. See 3d Cir. LAR 27.4 & I.O.P. 10.6.