                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             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Precedential or Non-Precedential: Precedential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
                                  2


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.
                              3


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
                                4


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
