Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-29-2007

Pruden v. Bower
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3075




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Recommended Citation
"Pruden v. Bower" (2007). 2007 Decisions. Paper 173.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/173


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DLD-3                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 07-3075
                                     ___________

                                 RONALD PRUDEN,
                                        Appellant

                                           v.

                        DR. BOWER; DR. BREZOVSKAYA;
                                 DR. ALTERMAN
                      ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                               (D.C. Civil No. 07-cv-0778)
                     District Judge: Honorable A. Richard Caputo
                     ____________________________________

        Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
        or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   October 4, 2007
        Before: BARRY, CHAGARES and VANANTWERPEN, Circuit Judges

                         (Opinion filed : November 29, 2007)
                                      _________

                                       OPINION
                                      _________

PER CURIAM

      Appellant, Ronald Pruden, appeals from the order of the United States District

Court for the Middle District of Pennsylvania dismissing his motion to proceed in forma

pauperis as moot. For the reasons that follow, we will summarily vacate and remand.
       On April 26, 2007, Appellant filed a complaint pursuant to 42 U.S.C. § 1983 and a

motion to proceed in forma pauperis in the District Court. On May 1, 2007, the District

Court clerk’s office entered an administrative order informing Appellant that his action

could not proceed because his motion to proceed in forma pauperis was filed on an out-

of-date form. The order provided that Appellant’s complaint would be dismissed unless,

within thirty days, he either properly completed an in forma pauperis application or paid

the filing fee. A current in forma pauperis form was enclosed with the order. On June 7,

2007, thirty-seven days after the entry of the administrative order, the District Court

dismissed Appellant’s complaint without prejudice because Appellant neither submitted a

revised in forma pauperis application nor paid the filing fee. The next day, the District

Court received Appellant’s revised motion to proceed in forma pauperis. On June 21,

2007, the District Court denied Appellant’s motion to proceed in forma pauperis as moot.

Appellant appeals.

       “Ordinary, an order that dismisses a complaint or denies an in forma pauperis

motion without prejudice is neither final nor appealable.” Redmond v. Gill, 352 F3d 801,

803 (3d Cir. 2003). Here, the District Court dismissed Appellant’s complaint without

prejudice because he had failed to comply with the requirements set forth in the

administrative order. The day after the dismissal of his complaint, the District Court

received Appellant’s revised in forma pauperis application. Instead of re-opening

Appellant’s case, the District Court denied his in forma pauperis motion as moot.

Because the denial of Appellant’s motion to proceed in forma pauperis as moot has the

                                              2
effect of terminating the action, the order is final and appealable. See 

have jurisdiction pursuant to 28 U.S.C. § 1291.

          The District Court’s dismissal of Appellant’s complaint was without prejudice;

accordingly, the District Court’s order contemplates the re-filing of Appellant’s in forma

pauperis application in compliance with the requirements set forth in the May 1, 2007

administrative order. Appellant’s revised in forma pauperis application was sent prior to

the entry of the order dismissing his complaint and was received by the District Court one

day after the dismissal of his complaint. Upon consideration of Appellant’s current

situation as a pro se inmate, we conclude that the District Court abused its discretion by

failing to construe Appellant’s in forma pauperis application as a motion to re-open the

action.

          Because this appeal presents no substantial question, we will summarily vacate the

District Court’s order and remand for further proceedings. See Third Circuit LAR 27.4

and I.O.P. 10.6.




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