ALD-228 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-2457

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PATRICK D. TILLIO, SR., Appellant

v.

DR. ROCIO NELL; NORRISTOWN STATE HOSPITAL; DEPARTMENT OF 

PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA; CHESTER 

COUNTY COURT; DELAWARE COUNTY COURT; MONTGOMERY COUNTY 

EMERGENCY SERVICE

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 2-12-cv-02420)

District Judge: Honorable Cynthia M. Rufe

____________________________________

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

July 19, 2012

Before: SLOVITER, FISHER and WEIS, Circuit Judges

(Opinion filed: July 30, 2012 )

_________

OPINION

_________

PER CURIAM.

Patrick D. Tillio, Sr. (“Tillio”), proceeding pro se and in forma pauperis, appeals 

from the District Court‟s May 7, 2012 order dismissing his complaint. We will 

summarily affirm.
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I.

In April 2012, Tillio filed an application to proceed in forma pauperis and a 

complaint alleging that several defendants were violating his civil rights by conducting 

surveillance on him and his son. (Dkt. No. 3.) On May 7, 2012, the District Court 

granted Tillio leave to proceed in forma pauperis, but dismissed his “rambling and 

unclear” complaint without prejudice. (Dkt. No. 2.) Tillio was granted leave to amend 

his complaint within thirty days.

Rather than filing an amended complaint, Tillio filed a Notice of Appeal on May 

21, 2012. The Clerk notified Tillio of a potential jurisdictional defect pursuant to Borelli 

v. City of Reading, 532 F.2d 950 (3d Cir. 1976) (per curiam), and that his appeal would 

be submitted for possible summary action. Tillio did not respond.

II.

Normally, an order that “dismisses a complaint without prejudice is neither final 

nor appealable” under 28 U.S.C. § 1291. Borelli, 532 F.2d at 951. Such an order 

becomes final and appealable, though, if the plaintiff “declares his intention to stand on 

his complaint” instead of amending it. Id. at 952.

There is no “clear rule for determining when a party has elected to stand on his or 

her complaint.” Hagan v. Rogers, 570 F.3d 146, 151 (3d Cir. 2009). However, when the 

District Court has provided a set amount of time within which to amend, and the plaintiff 

fails to do so, the Court may conclude that the plaintiff elected to stand on his Complaint. 

Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 n.5 (3d Cir 1992); see also Hagan, 570 
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F.3d at 151 (concluding that plaintiffs stood on their complaints because they filed 

notices of appeal rather than amending within specified time period); Frederico v. Home 

Depot, 507 F.3d 188, 193 (3d Cir. 2007) (same). 

Tillio filed a Notice of Appeal, instead of amending his complaint, within the 

thirty-day window provided by the District Court. Therefore, Tillio elected to stand on 

his complaint, and the order of the District Court is final and appealable. We have 

jurisdiction over his appeal.

Having determined that jurisdiction is proper, we will summarily affirm the 

decision of the District Court if no substantial question is presented on appeal. 3d Cir. 

LAR 27.4 and I.O.P. 10.6. We agree with the District Court that Tillio‟s complaint does 

not meet the pleading requirements of Federal Rule of Civil Procedure 8(a). He claimed 

that “this women Dr. Nell” and the Horsham and Lower Merion Police Departments were 

violating his civil rights through “scam surveillance.” (Dkt. No. 3, pp. 3-4.) He does not 

describe any factual basis for Dr. Nell‟s alleged liability, nor does he name any individual 

police officers or state a factual basis for the police departments‟ alleged liability. Even 

given the most liberal reading, Tillio‟s complaint does not contain the requisite “short and 

plain statement of the claim showing that [he] is entitled to relief.” Fed. R. Civ. P. 

8(a)(2). Dismissal was therefore appropriate. See Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009) (a complaint does not suffice “if it tenders „naked assertion[s]‟ devoid of „further 

factual enhancement‟”) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 557 (2007)). 
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III.

The District Court properly dismissed Tillio‟s complaint and allowed him leave to 

amend. We will summarily affirm the order of the District Court because no substantial 

question is presented by this appeal. 3d Cir. LAR 27.4 and I.O.P. 10.6.