BLD-042                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 10-3091
                                     ___________

                                  MELVIN LINDSEY,
                                                Appellant

                                           v.

          DONNA ROMAN; ROBERT WADDELL; JENNIE MACKNIGHT;
           SALLY GENNARINI; JOHN KERESTES; JEFFREY A. BEARD;
              PENNSYLVANIA DEPARTMENT OF CORRECTIONS
                   ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                              (M.D. Pa. No. 10-cv-00953)
                     District Judge: Honorable James M. Munley
                     ____________________________________

             Submitted for Possible Dismissal Due to a Jurisdictional Defect
             or 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
                                   November 18, 2010

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

                           (Opinion filed: December 1, 2010)
                                       _________

                                       OPINION
                                       _________

PER CURIAM

      Melvin Lindsey, an inmate presently confined by the Pennsylvania Department of

Corrections, appeals from orders of the District Court dismissing his complaint without
prejudice and denying his subsequent motion for reconsideration. For the reasons that

follow, we will affirm the judgment of the District Court.

                                             I.

       In April 2010, Lindsey filed this civil rights complaint under 42 U.S.C. § 1983.

By administrative order dated May 6, 2010, the District Court gave Lindsey thirty days to

either pay the $350.00 filing fee or complete an application to proceed in forma pauperis

(IFP). Lindsey filed an incomplete IFP application – it did not include an authorization

form – two weeks later. In June 2010, the District Court dismissed Lindsey‟s civil action

without prejudice because “[t]hirty (30) days have elapsed from the date of our Order and

the Plaintiff has neither filed an authorization form nor requested an extension of time in

which to do so.”

       Lindsey then moved for reconsideration of the District Court‟s order, claiming that

his failure to timely file a complete IFP application was due to forces “beyond his

control.” Lindsey attached to his motion a filled-out authorization form. In July 2010,

the District Court denied the motion for reconsideration, concluding that “petitioner fails

to rely on one of three major grounds for reconsideration . . . and merely reargues matters

addressed by the court and disposed of in the previous order.”1 The District Court


   1
     The District Court did not consider whether Lindsey‟s motion for reconsideration
   could be construed as a motion for relief from judgment, based on excusable neglect,
   under Federal Rule of Civil Procedure 60(b)(1). Any error was harmless, however,
   because Lindsey‟s allegations – that his failure to file an authorization form was the
   result “of a lack of information and misfiling” – are belied by the record. See Nara v.
   Frank, 

, 193-94 (3d Cir. 2007) (“The test for „excusable neglect‟ is
                                             2
instructed that Lindsey “may file a new action.” The District Court reinforced that

instruction in a footnote to its order, stating that its previous “dismissal was without

prejudice to plaintiff‟s right to refile the action with the appropriate forms.” Lindsey

appealed.

                                              II.

       We must first consider our jurisdiction. The District Court dismissed Lindsey‟s

civil action without prejudice. The general rule is that a without-prejudice dismissal “is

neither final nor appealable because the deficiency may be corrected by the plaintiff

without affecting the cause of action.” Borelli v. City of Reading, 

, 951 (3d

Cir. 1976) (per curiam). Here, however, the District Court‟s July 2010 order made clear

to Lindsey that the defect in his filing could not be cured in the civil action at issue, and

that he would have to “file a new action” to advance his civil rights claims. See Deutsch

v. United States, 

, 1083 (3d Cir. 1995). Therefore, we have jurisdiction

under 28 U.S.C. § 1291 notwithstanding the District Court‟s without-prejudice dismissal.

                                              III.

       A District Court‟s dismissal for failure to pay fees is reviewed for abuse of

discretion. See Jones v. Zimmerman, 

, 78 (3d Cir. 1985). That same

standard is used in reviewing the denial of a motion for reconsideration. See United



   equitable, and requires us to weigh the „totality of the circumstances.‟”) (citation
   omitted).


                                               3
States v. Dupree, 

, 732 (3d Cir. 2010). We may take summary action if an

appeal presents no substantial question. See 3d Cir. LAR 24.7; I.O.P. 10.6.

       We conclude that the District Court did not abuse its discretion in dismissing

Lindsey‟s civil action for failure to either pay the associated filing fee or file a completed

IFP application. Lindsey‟s IFP application was plainly lacking an authorization form,

even though the District Court‟s May 6, 2010 administrative order explained to Lindsey

that the form was a necessary component. The administrative order also indicated that

“[a]n application to proceed in forma pauperis and an authorization form [were]

enclosed” in the District Court‟s mailing.

       We also conclude that the District Court did not abuse its discretion in denying

Lindsey‟s motion for reconsideration. “The purpose of such a motion is to correct a clear

error of law or to prevent a manifest injustice in the District Court‟s original ruling.”

. The District Court committed no error of law in dismissing

Lindsey‟s case. Moreover, we cannot say that there was some manifest injustice latent in

the District Court‟s decision; Lindsey can refile his complaint, accompanied by the

documents that are required to obtain IFP status, at any time within the applicable

limitations period.2


   2
    Based on Lindsey‟s allegations, the earliest complained-of civil rights violation
   appears to have occurred “on or about August 14, 2009.” Despite the time exhausted
   while Lindsey pursued this appeal, he should have no difficulty with timely refiling
   his complaint. See Smith v. Holtz, 

, 111 n.2 (3d Cir. 1996) (“In § 1983
   cases, federal courts apply the state personal injury statute of limitations, which in
   [Pennsylvania] is two years.”) (citations omitted).
                                              4
      Accordingly, we will summarily affirm the judgment of the District Court.

Appellant‟s motion for remand under Rule 27, Fed. R. App. P., is denied.




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