2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-11-2003

Redmond v. Gill

Precedential or Non-Precedential: Precedential

Docket No. 03-1806

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Recommended Citation

"Redmond v. Gill" (2003). 2003 Decisions. Paper 12.

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PRECEDENTIAL

Filed December 11, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 03-1806 and 03-1807

MICHAEL A. REDMOND,

Appellant in No. 03-1806

v.

WARDEN JEFF GILL, as Employees of Mercer Co. Prison;

CORRECTION OFFICER TERRY RAINES; JAMES

EPSTEIN, Mercer Co. District Attorney; CORRECTION

OFFICER PHILIP HARTSOCK; GENE BRENNEMAN, Mercer

Co. Commissioner

MICHAEL A. REDMOND,

Appellant in No. 03-1807

v.

WARDEN JEFF GILL, As Employed by the Mercer Co.

Prison; SGT. DOYLE WHENRY; JAMES P. EPSTEIN,

Mercer Co. District Attorney; GENE BRENNEMAN, Mercer

Co. Commissioner

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civ. Nos. 02-02111 and 02-02112)

District Judge: Honorable Arthur J. Schwab

Submitted For Possible Dismissal Under 28 U.S.C.

§ 1915(e)(2)(B) or Summary Action Under Third Circuit

LAR 27.4 and I.O.P. 10.6

September 25, 2003
Before: SLOVITER, MCKEE AND SMITH, CIRCUIT JUDGES

(Filed: December 11, 2003)

OPINION OF THE COURT

PER CURIAM:

On December 9, 2002, Michael A. Redmond, a pro se

litigant presently incarcerated at Mercer County Prison, in

Mercer, Pennsylvania, filed a § 1983 action accompanied by

an application for leave to proceed in forma pauperis (IFP).1

By order entered December 30, 2002, the District Court

granted IFP status and directed Redmond to sign either an

authorization form allowing the prison to deduct payments

from his account or a form stating he had chosen to

withdraw the action. Redmond did neither, within the

twenty-day period provided by the Court. As a result, the

District Court dismissed Redmond’s complaint without

prejudice, noting that he was permitted to re-file within the

applicable limitations period by paying the full filing fee of

$150.00. Redmond filed a notice of appeal with this Court.

Redmond was advised that the appeal would be

considered for possible dismissal due to a jurisdictional

defect. Ordinarily, an order that dismisses a complaint or

denies an in forma pauperis motion without prejudice is

neither final nor appealable. Borelli v. City of Reading, 532

F.2d 950, 951 (3d Cir. 1976). Here, the District Court

granted Redmond’s motion to proceed in forma pauperis

but then dismissed his complaint without prejudice

because he did not comply with the procedural

requirements set forth in the court’s order granting IFP

status. If that order had provided Redmond an opportunity

to comply with those requirements and have his motion

reconsidered, so that he could cure the defect, we would

not have jurisdiction under Borelli. However, the District

Court did not allow Redmond to cure the defect in his

filing. Rather, it allowed Redmond to proceed with this

1. We have consolidated the appeal at No. 03-1806 with the appeal at

No. 03-1807 because they present the very same facts and legal issues.

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complaint only by paying the full filing fee. As a result, the

order is appealable because it terminated the action and

precluded Redmond from proceeding IFP. Sinwell v. Shapp,

536 F.2d 15 (3d Cir. 1976)(order denying motion to proceed

IFP is appealable because it has the effect of terminating

the action); Deutsch v. United States, 67 F.3d 1080, 1083

(3d Cir. 1995)(although court did not specify whether

§ 1915 (d) dismissal was with or without prejudice, order

was final and appealable “because an in forma pauperis

plaintiff must be afforded appellate review of a

determination that he is required to pay all or a portion of

the court costs and filing fees to file a claim.”). 

The District Court dismissed Redmond’s complaint solely

because of Redmond’s failure to supply the appropriate

authorization papers within the twenty-day period provided

in the Court’s December 30, 2002 order. We, therefore,

review the District Court’s order for an abuse of discretion.

Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d

Cir. 1984); see also, Taylor v. Delatoore, 281 F.3d 844, 847

(9th Cir. 2002) (dismissal under § 1915 for lack of

prosecution or for failure to obey an order of the court is

reviewed for an abuse of discretion). 

Although Redmond references the District Court’s final

order in his notice of appeal, it is not clear on this record

whether Redmond received the December 30, 2002 order

or, if he did, whether he received the order and requisite

authorization form in sufficient time to return the form

within twenty days. Redmond did provide the District Court

with a change of address while this action was pending; in

fact, the District Court’s order dismissing the complaint

notes his prior address rather than his new address. Under

these circumstances, we can not characterize Redmond’s

conduct as a willful failure to respond to the December 30,

2002 order that evidences an intent to flout the District

Court’s instructions. Because it is as likely that Redmond

did not receive the District Court’s order directing him to

submit the authorization form, we believe it was an abuse

of discretion to dismiss this action as a sanction and to

require Redmond to prepay the full filing fee in order to

proceed with his civil rights claims against these

defendants. Although we have found no case precisely on

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point, we agree with the reasoning of those courts of

appeals that have required district courts to provide an

adequate opportunity for a prisoner to comply with a PLRA

fee order prior to dismissing an action for failure to

prosecute. See, e.g., Wilson v. Sargent, 313 F.3d 1315 (11th

Cir. 2002)(before dismissing a complaint for failure to pay

an initial partial filing fee, the district court is required to

ascertain whether the plaintiff has attempted to comply

with the fee order); Hatchet v. Nettles, 201 F.3d 651 (5th

Cir. 2000)(it is an abuse of discretion to dismiss an action

for failure to comply with an initial partial filing fee order

without making some inquiry regarding whether the

prisoner has complied with the order by submitting any

required consent forms within the time allowed for

compliance). 

Accordingly, we will vacate the District Court’s February

20, 2003, order and will remand this matter to the District

Court for further consideration. See 3d Cir. I.O.P. 10.6. On

remand, the District Court shall provide Redmond with

another copy of the authorization form and allow him

additional time to submit the form. Redmond’s motion for

the appointment of counsel is denied without prejudice to

his filing that motion in the District Court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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