DLD
- 139 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 18

- 3274

___________ EDWARD THOMAS KENNEDY,

Appellant

v. COMMONWEALTH OF PENNSYLVANIA

____________________________________ On Appeal from the Unite d States District Court for the Eastern District of Pennsylvania (E.D. Pa. No. 5:18

- cv - 04071) District Judge: Honorable Gerald J. Pappert

____________________________________ Submitted for Possible Dismissal Due to a Jurisdictional Defect or Summa ry Act ion Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 March 21, 2019
Before: JORDAN, GREENAWAY, JR. and NYGAARD , Circuit Judges

( F iled August 14 , 2019 )

_________ OPINION *

_________ PER CURIAM Pro se appellant Edward Kennedy appeal s from the dismissal of his complaint for

* This dispos ition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

lack of standing. For the reasons that follow, we will summarily affirm the District Court’s judgment. In September 2018, Kennedy filed a complaint in the District Court , challenging a Pennsylvania statute that cr iminal izes harassment. He argues that he is entitled to challenge the statute as “one of the people of Pennsylvania” because the statute “ exceeds

t he Commonwealth of Pennsylvania[’s]

. . . jurisdiction” and thus “the Plaintiff (and all of we the people) i s inju red” due to a “loss of rights.” Compl. at 1. Additionally, Kennedy contends that “prosecuting attorneys employed by the [Commonwealth] settle 95% or mo[r]e of all criminal cases based on reliable sources plaintiff believes are credible.” Id. at 2. Ulti mately, the District Court screened Kennedy’s complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and dismissed it without prejudice after concluding that Kennedy lacked standing to pursue his claims. Kennedy timely appealed. We have jurisdiction over t his ap peal pursuant to 28 U.S.C. § 1291

. 1 We exercise

1 “Generally, an order which dismisses a complaint without prejudice is neither final nor appealable because the deficiency may be corrected by the plain tiff without affecting the cause of action,” unless “the plaintiff cannot amend or declares his intention to stand on his complaint.” Borelli v. City of Reading , 532 F.2d 950, 951

- 52 (3d Cir. 1976) (per curiam). However, this principle does not app ly “wh ere the district court has dismissed based on justiciability and it appears that the plaintiff[] could do nothing to cure the[] complaint.” Presbytery of N.J. of Orthodox Presbyterian Church v. Florio , 40 F.3d 1454, 1461 n.6 (3d Cir. 1994). In this case, the District Court dismissed Kennedy’s complaint without prejudice and granted him 30 days to ame nd his complaint in an abundance of caution due to his pro se status, but there was no apparent basis upon which Kennedy could establish that he had sta nding to proceed . Further, even if the rule of Borelli applied here, Kennedy chose not to amend his complaint within the time given by the District Court and instead pursued this appeal, indicating his intention to stand on his complaint

. See Pa. Family Inst., Inc. v. Black , 489 F.3d 15 6, 162 (3d Cir. 2007) (“[T]he3

plenary review over the District Court’s dismissal of Kennedy’s complaint for lack of standing. N. Jersey Brain & Spine Ctr. v. Aetna, Inc. , 801 F.3d 369, 371 (3d Cir. 2015). We may summarily affirm a dist rict court’s decision “on any basis supported by the record” if the appeal fails to present a substantial question. See Murray v. Bledsoe , 650 F.3d 246, 247 (3d Cir. 2011) (per curiam). Article III of the Constitution limits the power of the federal judic iary to the resolution of cases and controversies. U.S. Const. art. III, § 2. “That case

- or - controversy requirement is satisfied only where a plaintiff has standing.” Sprint Commc’ns Co., L.P. v. APCC Servs., Inc. , 554 U.S. 269, 273 (2008). To es tablis h Article III standing, a plaintiff must demonstrate: “(1) . . . an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Cottrell v. Alcon Labs. , 874 F.3d 154, 162 (3d Cir. 2017). The alleged injury to the plaintiff must be “actual or imminent, not conjectural or hypothetical.” Blunt v. Lower Merion Sch. Dist. , 767 F.3d 247, 278 (3d Cir. 2014). Accordingly, a plaintiff lacks standing to ra ise “a generally available grievance about government” that “claim[s] only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seek[s] relief that no more directly and tangibly benefits him than it does the publ ic at large.” Lujan v. Defs. of Wildlife , 504 U.S. 555, 573

- 74 (1992).

§ 1291 finality requirement should be given a practical rather than a technical construction.”) (internal quotation marks omitted).4

Kennedy’s complaint raises only a generalized grievance, alleging that a state statute is unconstitutional because it somehow injures the public. Kennedy has not
exp lained why he beli eves t hat the statute is unconstitutional, or how the existence of the
statute has harmed him in any way. Accordingly, because we agree that Kennedy lacks standing to pursue his claims, we will summarily affirm the District Court’s judgment.