                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-27-2009

Fred Vining v. Applied Power Tech
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3855




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Recommended Citation
"Fred Vining v. Applied Power Tech" (2009). 2009 Decisions. Paper 1652.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1652


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BLD-104                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-3855
                                      ___________

                              FRED DOUGLAS VINING,
                                               Appellant

                                            v.

                     APPLIED POWER TECHNOLOGY;
          PENNSYLVANIA DEPARTMENT OF LABOR AND INDUSTRY;
               WORKERS COMPENSATION APPEALS BOARD
                  ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                (D.C. No. 02-cv-02065)
                     District Judge: Honorable Gary L. Lancaster
                     ____________________________________

         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
                                   February 12, 2009

              Before: McKEE, FISHER and CHAGARES, Circuit Judges

                                 (Filed: March 27, 2009)
                                       __________

                                       OPINION
                                      __________

PER CURIAM

      On March 18, 2005, this Court affirmed the District Court’s grant of a motion to

dismiss Vining’s original case under Federal Rule of Civil Procedure 12(b)(1) for lack of
subject matter jurisdiction. Vining, proceeding pro se, then filed on October 12, 2005, a

motion to reopen the case in the District Court, stating only that the “District Court

decision conflicts with decision of the Third Circuit Court of Appeals.” The District

court denied his motion without explanation on October 18, 2005. Nearly three years

later, Vining filed a motion to proceed in forma pauperis and a motion for leave to file an

amended complaint, both of which the District Court denied without explanation. Vining

then filed the instant appeal on September 11, 2008, and this Court granted his IFP

motion.

       We have appellate jurisdiction over this appeal under 28 U.S.C. § 1291, and

review it for possible dismissal under 28 U.S.C. § 1915(e)(2)(B). An appeal must be

dismissed under 28 U.S.C. § 1915(e)(2)(B) if it has no arguable basis in law or fact.

Neitzke v. Williams, 490 U.S. 319, 325 (1989). Because we determine that the appeal is

lacking in arguable legal merit, we will dismiss it under 28 U.S.C. § 1915(e)(2)(B).

       Vining’s motions are subject to the requirements of Fed. R. Civ. P. 7(b)(1), which

states that motions must “be in writing unless made during a hearing or trial; state with

particularity the grounds for seeking the order; and state the relief sought.” However,

Vining offered the District Court nothing in support of any of his motions. The District

Court had no basis on which to reopen his case, grant his IFP motion, or grant him leave

to amend his complaint. Similarly, this Court finds nothing, construing his submissions

as broadly as possible, that demonstrates the District Court erred in dismissing Vining’s



                                              2
motions. See Alston v. Parker, 363 F.3d 229, 234 (3d Cir. 2004)(“pro se complaints in

particular should be construed liberally.”).

       As a result, we determine that Vining’s appeal is lacking in arguable legal merit,

and will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).




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