DLD-139 NOT PRECEDENTIAL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 United 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 

Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

March 21, 2019

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

(Filed August 14, 2019)

_________

OPINION*

_________

PER CURIAM

Pro se appellant Edward Kennedy appeals from the dismissal of his complaint for 

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
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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 criminalizes harassment. He argues that he is entitled to 

challenge the statute as “one of the people of Pennsylvania” because the statute “exceeds 

the Commonwealth of Pennsylvania[’s] . . . jurisdiction” and thus “the Plaintiff (and all 

of we the people) is injured” 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. Ultimately, 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 this appeal pursuant to 28 U.S.C. § 1291.

1

 We exercise 

 

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 “Generally, an order which dismisses a complaint without prejudice is neither final nor 

appealable because the deficiency may be corrected by the plaintiff 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 apply “where 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 amend 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 standing 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 156, 162 (3d Cir. 2007) (“[T]he 
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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 district 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 judiciary 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 establish 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 raise “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 public 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).
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Kennedy’s complaint raises only a generalized grievance, alleging that a state 

statute is unconstitutional because it somehow injures the public. Kennedy has not 

explained why he believes that 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.