DLD-304 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 13-1891

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ALEJANDRO IZQUIERDO,

Also on behalf of the Minors G, A, M and J

v.

STATE OF NEW JERSEY; NEW JERSEY DIVISION OF YOUTH AND FAMILY 

SERVICES; NEW JERSEY OFFICE OF THE PUBLIC DEFENDER

Alejandro Izquierdo,

 Appellant

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On Appeal from the United States District Court for the District of New Jersey

(D.N.J. Civ. No. 2-12-cv-07298)

District Judge: Honorable Dickinson R. Debevoise

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Submitted for Possible Dismissal Due to a Jurisdictional Defect, 

Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2), or

Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6

June 27, 2013

Before: AMBRO, SMITH and CHAGARES, Circuit Judges

(Opinion filed: July 25, 2013 )

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OPINION

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PER CURIAM

Alejandro Izquierdo filed a pro se complaint in the District Court asserting that the 

Defendants violated his constitutional rights during proceedings regarding his son and 

other minors. He also filed an application to proceed in forma pauperis (“IFP”) with the 

complaint. By order entered January 14, 2013, the District Court denied Izquierdo’s IFP 

application on the ground that the court “must abstain because the claims are [the] subject 

of litigation in the state courts.” Izquierdo apparently wrote the court seeking 

reconsideration (the letter-motion does not appear on the docket), and the court wrote 

back, explaining its prior order regarding abstention. The court entered an order denying 

the motion for reconsideration the same day, February 28, 2013. Izquierdo filed a notice 

of appeal on March 22, 2013.

We have jurisdiction under 28 U.S.C. § 1291. See Abdul-Akbar v. McKelvie, 239 

F.3d 307, 311 (3d Cir. 2001) (“[A]n order denying leave to proceed I.F.P. is a final, 

collateral order appealable under 28 U.S.C. § 1291”). Because Izquierdo filed a timely 

motion for reconsideration in the District Court, as determined by the January 31, 2013, 

date noted in the court’s letter, see Fed R. Civ. P. 59(e), the scope of our review extends 

to both the order denying the IFP application, as well as the order denying 

reconsideration. See Fed. R. App. P. 4(a)(4)(A)(iv).

We review the District Court’s decision to deny leave to proceed IFP for an abuse 

of discretion. See Deutsch v. United States, 67 F.3d 1080, 1083 (3d Cir. 1995). We 
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conclude that the District Court abused its discretion in this case. In this Circuit, leave to 

proceed IFP is determined solely on the basis of indigence.

1

 Id. at 1084 n.5. If a plaintiff 

is unable to pay the filing fee, leave to proceed IFP should be granted. Id. If leave is 

granted, the District Court then may decide whether to dismiss the complaint under 28 

U.S.C. § 1915(e)(2). Id. What a District Court generally may not do, however, is deny 

leave to proceed IFP on the basis of non-financial considerations. See Sinwell v. Shapp, 

536 F.2d 15, 19 (3d Cir. 1976). Here, the District Court did not deny Izquierdo’s 

application due to financial considerations, but rather on the basis that the court would 

likely abstain from adjudicating the claims. The District Court may ultimately be correct 

regarding abstention, but we express no opinion on the issue. Further, we acknowledge 

that the court may have intended to warn Izquierdo that, even if he elected to proceed, his 

complaint would be dismissed. Nonetheless, this perceived deficiency in Izquierdo’s 

complaint does not justify denying leave to proceed IFP on non-financial grounds.

Accordingly, we will summarily vacate the District Court’s orders denying 

Izquierdo leave to proceed IFP and denying reconsideration. On remand, the District 

Court should decide the IFP application on financial grounds alone and then conduct such 

further proceedings as may be necessary consistent with this opinion. See 3d Cir. L.A.R. 

27.4; I.O.P. 10.6.

 

1 We have left open the possibility that “extreme circumstances” may justifying denying 

IFP status to an otherwise eligible applicant. Deutsch, 67 F.3d at 1084 n.5. Such 

circumstances are not present here.