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


4-26-2007

Rhett v. Disman
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2903




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Recommended Citation
"Rhett v. Disman" (2007). 2007 Decisions. Paper 1201.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1201


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                                           NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                          No. 06-2903


                        ERIC J. RHETT,
                           Appellant

                               v.

COMMISSIONER BEATRICE DISMAN; GERARD P. DEVEAUX, Esq.;
     DEBBIE MYERS; CYNTHIA NOWLIN; MARY NOWLIN;
            BRUCE A. HENDERSON, Welfare Director;
        ARNOLD KOSTER, Esq.; APPEALS COUNCIL-SSA;
      M.D. FADI J. BEJJANI; M.D. DOUGLAS D. BRADLEY;
      HI-TECH TRAINING SCHOOL; M.D. MONICA MEHTA;
             OFFICE OF HEARING & APPEALS SSA;
 M.D. HOWARD M. PECKER; THALODY MEDICAL ASSOCIATES;
          UNION COUNTY DIV OF SOCIAL SERVICES


         On Appeal From the United States District Court
                   For the District of New Jersey
                   (D.C. Civ. No. 02-cv-05539)
         District Judge: Honorable Joseph A. Greenaway


           Submitted Under Third Circuit LAR 34.1(a)
                        April 25, 2007

   Before: FISHER, ALDISERT AND WEIS, CIRCUIT JUDGES

                     (Filed: April 26, 2007)


                           OPINION
PER CURIAM

       Appellant, Eric Rhett, appeals the judgment of the United States District Court for

the District of New Jersey dismissing his amended complaint. For the reasons that

follow, we will vacate and remand.

       In 2002, Appellant filed a motion to proceed in forma pauperis and a complaint

seeking review of the denial of supplemental social security disability benefits. The

District Court took no action in the matter between 2002 and 2004. In April 2004,

Appellant filed a request for a final appealable order and numerous other motions. No

action was taken by the District Court and no motions were decided. Appellant filed a

notice of appeal to this Court. C.A. No. 05-2334. On October 25, 2005, we dismissed the

appeal for lack of appellate jurisdiction, but directed the District Court to transfer the case

to another District Judge within forty-five (45) days for expedited consideration. Id. In

the interim, while his appeal was pending, Appellant filed two amended complaints. The

first amended complaint was filed on June 17, 2005, and the second was filed on July 5,

2005, without leave of court. On May 22, 2006, the District Court sua sponte dismissed

Appellant’s first amended complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure

to state a claim upon which relief may be granted. 1



   1
     Appellant filed his original complaint in November 2002. In October 2005, the
District Court granted Appellant’s motion to proceed in forma pauperis and ordered his
complaint filed nunc pro tunc. The District Court’s dismissal of Appellant’s amended
complaint occurred in May 2006, over three years after Appellant filed the original
complaint and motion to proceed in forma pauperis.

                                               2
          We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our review

of a district court’s dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) is plenary. Allah v.

Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). “[W]e must accept as true the factual

allegations in the complaint and all reasonable inferences that can be drawn therefrom.”

Id. (quoting Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)).

          The District Court dismissed Appellant’s first amended complaint because it was

unable to discern any cognizable causes of action. The District Court further held that

Appellant’s amended complaint failed to provide a short and plain statement of his claims

that would sufficiently provide the defendants with fair notice.

          While we agree it appears that Appellant’s first amended complaint fails to state

any cognizable claims, Appellant attached to that document his original complaint, in

which it is clear that, at a minimum, he was seeking review of the denial of supplemental

social security disability benefits. In its opinion dismissing Appellant’s first amended

complaint. The District Court concluded that any amendment to the first amended

complaint would be futile and dismissed the action with prejudice. The District Court did

not address any of the allegations in the original complaint. Furthermore, although the

second amended complaint was filed without leave of court, the District Court neither

considered whether a request for leave was implicit in that filing nor examined the

contents of that complaint when determining whether any further amendment would be

futile.

          We have held that, plaintiffs, whose complaints fail to state a claim, “are entitled

                                                 3
to amend their complaint unless doing so would be inequitable or futile.” Grayson v.

Mayview State Hosp., 293 F.3d 103, 111 (3d Cir. 2002). The District Court concluded

that further amendment of this complaint would be futile. We disagree. Appellant is a

pro se litigant, who attempted to file an amended complaint but failed to incorporate his

amended complaint (instead, attaching the initial complaint to the “amended” complaint).

       An examination of the record indicates the many difficulties and confusion facing

the District Court because of the pro se nature of these proceedings. In an abundance of

caution, however, we will vacate the judgment and remand for the District Court to

construe the entire document as the amended complaint, or to permit Appellant to

incorporate his original complaint into the first amended complaint. This probably would

state a cause of action.

       We will vacate and remand for further proceedings.




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