In the
United States Court of Appeals
For the Seventh Circuit

No. 98-3891

NORM LEMARCIER FURNACE,

Plaintiff-Appellant,

v.

BOARD OF TRUSTEES OF SOUTHERN
ILLINOIS UNIVERSITY, et al.,

Defendants-Appellees.



Appeal from the United States District Court
for the Southern District of Illinois.
No. 98-4244-JLF--James L. Foreman, Judge.


ARGUED February 17, 2000--DECIDED JUNE 26,
2000




  Before HARLINGTON WOOD, JR., COFFEY, and
RIPPLE, Circuit Judges.

  HARLINGTON WOOD, JR., Circuit Judge. In
January 1997, plaintiff-appellant Norm
Lemarcier Furnace was enrolled in the
Medical, Dental Education Preparatory
Program at Southern Illinois University
("SIU" or "the university"). Furnace was
found guilty by a student judicial board
of various violations of SIU’s student
disciplinary code and was placed on
disciplinary suspension for three years.
Furnace filed a pro se complaint in the
United States District Court for the
Southern District of Illinois against SIU
and various SIU officials alleging
violations of due process, intentional
and negligent infliction of emotional
distress, libel, slander, and "violations
of university policy." On October 28,
1998, the district court dismissed
Furnace’s complaint without prejudice
under 28 U.S.C. sec. 1915(e)(2) (B)(ii)
for failure to state a claim on which
relief could be granted. Furnace filed a
notice of appeal on November 5, 1998./1
I.   BACKGROUND

  In January 1997, Furnace, a twenty-nine
year old African-American male student in
SIU’s graduate level pre-med program, was
living in a university-owned apartment in
Carbondale, Illinois. On January 17,
1997, SIU police officers searched
Furnace’s apartment pursuant to a search
warrant and seized several items of
personal property. Furnace was
subsequently arrested by SIU police and
was charged by the Jackson County State’s
Attorney’s Office with computer fraud and
unlawful use of a credit card based on
allegations that Furnace used the
internet to order goods which were
charged to the credit card of another
student. Furnace, who was represented by
an attorney from the Jackson County
Public Defender’s Office, denied any
wrongdoing and refused to accept any plea
agreement offered to him.

  On January 21, 1997, Furnace was
informed by an assistant housing
supervisor that he was being evicted from
his apartment based on his arrest. On
February 6, 1997, Furnace received a
letter from the SIU Student Judicial
Affairs department alleging violations of
SIU’s student disciplinary code. These
violations were the same as the criminal
charges pending against Furnace, and
Furnace’s criminal attorney asked the
university to postpone any student
disciplinary action until the criminal
charges were resolved. The university
denied the request, and on March 26,
1997, a student judicial board convened
to consider the charges against Furnace.
The student judicial hearing began at
7:00 p.m. and continued until 1:40 a.m.
on March 27, at which time the panel
adjourned to deliberate. After several
hours of deliberation, the panel,
composed entirely of SIU students, found
Furnace guilty of all of the charges
filed against him and recommended that
Furnace be placed on disciplinary
suspension for three years.

  Furnace appealed the panel
recommendation as allowed by the
university’s student code. Furnace
claimed that the panel did not base its
recommendation on either substantial
evidence or on a preponderance of the
evidence presented. Furnace further
argued that some relevant evidence was
not presented at the hearing and that the
students on the panel acted
inappropriately, detracting from the
seriousness of the matter. The panel
recommendation was upheld by the director
of student development, an associate vice
chancellor, and ultimately by Donald
Beggs, chancellor of the university. On
September 2, 1997, Furnace was informed
that he was suspended from the university
for three years with the suspension to
run retroactively from July 26, 1997. On
November 20, 1997, the Jackson County
State’s Attorney’s Office dropped its
charges against Furnace. All of the items
seized from Furnace were returned to him
pursuant to a March 6, 1998 order by a
state court judge.

II.   ANALYSIS

  As an initial matter, we must determine
whether we have jurisdiction to decide
Furnace’s appeal. Furnace filed both his
complaint and a motion to proceed in
forma pauperis on July 29, 1998. On
October 28, 1998, the district court
issued a memorandum and order on
Furnace’s motion to proceed in forma
pauperis. The court found that Furnace
qualified as indigent under 28 U.S.C.
sec. 1915; however, the court recognized
that under 28 U.S.C. sec.
1915(e)(2)(B)(ii) it had an obligation to
"dismiss the case at any time" if it
determined that the action failed to
state a claim on which relief could be
granted. After analysis, the district
court dismissed Furnace’s federal claims
for failure to state a claim. The court
then dismissed Furnace’s supplemental
state law claims for lack of jurisdiction
and stated, "Accordingly, plaintiff’s
[M]otion to Proceed In Forma Pauperis
(Doc. 2) pursuant to 28 U.S.C. sec. 1915
is DENIED, and plaintiff’s complaint is
hereby DISMISSED WITHOUT PREJUDICE. The Clerk
of the Court shall enter judgment
accordingly." In accordance with the
court’s order, the clerk of the court, on
October 28, filed a document entitled
"Judgment in a Civil Case" which
provided: "It is ordered and adjudged
that plaintiff’s complaint is hereby
DISMISSED WITHOUT PREJUDICE." On November 5,
1998, Furnace filed a notice of appeal
appealing the district court’s memorandum
and order which denied his motion to
proceed in forma pauperis and dismissed
his complaint without prejudice.
  Under 28 U.S.C. sec. 1291, the courts of
appeals have jurisdiction over appeals
from "final decisions" of the district
courts./2 Appellees contend that there
is no final, appealable order in this
case, first, because the district court
dismissed only Furnace’s complaint and
not the entire action and, secondly,
because the dismissal was without
prejudice.

  "[I]f a judgment entry dismisses only
the complaint, it is not a final
judgment." Paganis v. Blonstein, 3 F.3d
1067, 1070 (7th Cir. 1993). "To determine
whether a judgment is final, the language
of the judgment itself is controlling."
Id. at 1069 (citing Benjamin v. United
States, 833 F.2d 669, 671 (7th Cir.
1987)). In Paganis, we held that a
judgment reading "judgment by dismissal .
. . is entered in favor of defendants .
. . against plaintiffs" constituted
language of sufficient finality to
satisfy 28 U.S.C. sec. 1291, noting that
"[t]he judgment entry did not simply
grant a motion, nor did it say ’the
plaintiffs’ complaint is dismissed.’" Id.
at 1070. In the present case, the
judgment stated only that Furnace’s
complaint was dismissed and specified
that the dismissal was without prejudice.
We need not determine whether 28 U.S.C.
sec. 1915(e)(2)’s requirement that "the
case" be dismissed necessitates the
dismissal of the entire action or merely
of the complaint because in the present
case it is clear from the language of the
judgment and the order that the court
dismissed only Furnace’s complaint and
not the entire action. The October 28
judgment entry does not constitute a
final judgment under 28 U.S.C. sec. 1291.


  Moreover, while "this court has not
accorded talismanic importance to the
fact that a complaint . . . was dismissed
’without prejudice,’" United States v.
City of Milwaukee, 144 F.3d 524, 528 n.7
(7th Cir. 1998), generally, an order dis
missing a complaint without prejudice
"’is not appealable because the plaintiff
may file an amended complaint.’" Kaplan
v. Shure Bros., Inc., 153 F.3d 413, 417
(7th Cir. 1998) (quoting Farrand v.
Lutheran Bhd., 993 F.3d 1253, 1254 (7th
Cir. 1993)). We have noted that under
"special circumstances" the dismissal of
a complaint without prejudice may
constitute adequate finality for appeal.
Principal Mut. Life Ins. Co. v.
Cincinnati TV 64 Ltd. Partnership, 845
F.2d 674, 676 (7th Cir. 1988) (citing
Akins v. Bd. of Governors, 840 F.2d 1371,
1375 n.2 (7th Cir.) vacated, 488 U.S. 920
(1988), reinstated in relevant part, 867
F.2d 972 (7th Cir. 1988); Benjamin, 833
F.2d 669). This exception applies when it
is clear from the record that the
district court "found that the action
could not be saved by any amendment of
the complaint which the plaintiff could
reasonably be expected to make." Id.
(internal quotations and citations
omitted); see also LeBlang Motors, Ltd.
v. Subaru of America, Inc., 148 F.3d 680,
687 (7th Cir. 1998) ("If the dismissal
was without prejudice, then it was not a
’final decision’ unless LeBlang could not
file another complaint."); City of
Milwaukee, 144 F.3d at 528 n.7
(collecting cases). There is nothing in
the record of the present case to suggest
that the district court determined that
Furnace’s complaint could not be saved by
amendment or that Furnace was unable to
make any rational argument to support his
claim for relief. In fact, counsel for
Furnace stated at oral argument that he
believed amendment could cure the defects
that the district judge had pointed out
in its order dismissing the complaint and
asserted that Furnace wanted the
opportunity to return to the district
court to amend the complaint. The
district court’s dismissal without
prejudice of Furnace’s complaint lacks
sufficient finality for appeal./3

  Having determined that the district
court dismissed only Furnace’s complaint
and not the entire action, we find that
the district court has not yet entered a
final order terminating the litigation.
See Benjamin, 833 F.2d at 672. As
previously noted, we lack appellate
jurisdiction until the district court
enters a final decision in a case.
Furnace’s appeal is therefore dismissed
for lack of jurisdiction.

APPEAL DISMISSED.



/1 Furnace filed his initial brief on appeal pro se,
but on July 28, 1999, this court appointed
counsel to represent Furnace on appeal. Appointed
counsel filed a supplemental brief on October 7,
1999, a reply brief on December 22, 1999, and
represented Furnace at oral argument.

/2 A district court’s denial of in forma pauperis
status is normally immediately appealable under
the collateral order doctrine. West v. Macht, 197
F.3d 1185, 1188 (7th Cir. 1999). To satisfy the
collateral order doctrine, an appealed from order
must (1) conclusively determine the disputed
question; (2) resolve an important issue
completely separate from the merits of the
action; and (3) be effectively unreviewable on
appeal from a final judgment. Wingerter v.
Chester Quarry Co., 185 F.3d 657, 662-63 (7th
Cir. 1998). In the present case, the court
expressly found that Furnace qualified as
indigent under the statute but denied his motion
based on the fact that it was dismissing his
complaint without prejudice for failure to state
a claim on which relief may be granted. As we
will discuss, the district court’s dismissal of
the complaint without prejudice is not conclusive
because it leaves Furnace with the option
ofamending his complaint. The collateral order
doctrine is not satisfied.

/3 Furnace points to the district court’s December
4, 1998 order entered on his motion for leave to
proceed in forma pauperis on appeal as evidence
that the district court viewed the proceedings
before it to be at an end. In that order, the
court refers to its October 28, 1998 memorandum
and order and the accompanying entry of judgment
as "the entry of judgment in defendant’s favor
and the dismissal of plaintiff’s claims."
However, as was the case in Principal Mutual Life
Insurance Company, 845 F.2d at 676, this
interpretation does not alter either the scope of
the original judgment or the fact that Furnace is
free to refile.
