                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-3091
                                       ___________

                                     PAUL BISHOP,
                                                Appellant

                                             v.

                UNITED STATES DEPARTMENT OF AGRICULTURE
                   _______________________________________

                     On Appeal from the United States District Court
                               for the District of New Jersey
                              (D.C. Civil No. 3-15-cv-03658)
                       District Judge: Honorable Freda L. Wolfson
                     _______________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     July 6, 2016

             Before: FUENTES, VANASKIE and SCIRICA, Circuit Judges

                              (Opinion filed: July 13, 2016)

                                        _________

                                        OPINION*
                                        _________


PER CURIAM

       Appellant, Paul Bishop, appeals from the District Court’s order dismissing his


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
action. We will vacate the District Court’s judgment and remand the matter for further

proceedings.

       On June 1, 2015, Bishop, proceeding pro se, filed a motion to proceed in forma

pauperis and a complaint against the United States Department of Agriculture alleging

employment discrimination. He listed his address as 22 Sunnyside Lane in Hillsborough,

New Jersey, with a zip code of 08844. The District Court granted Bishop’s motion to

proceed in forma pauperis in an order entered on June 2, 2015. The District Court

ordered the Clerk to file the complaint and to issue a summons. The court also directed

the U.S. Marshal to serve upon the defendant a copy of the complaint, summons, and the

June 2nd order.

       On June 16, 2015, a notification that had been mailed to Bishop by the Clerk of

the District Court was returned by the post office as undeliverable. The copy of the

returned envelope filed on the docket does not appear to include any mailing address.1

On June 18, 2015, a copy of the summons was similarly returned as undeliverable. A

copy of that returned envelope bears a handwritten address listing the proper street

address and township name, but the wrong zip code. The District Court subsequently

entered an order on July 24, 2015, dismissing the case sua sponte without prejudice. The

District Court referenced the two documents that had been returned as undeliverable.



1
  It could be that the address included on the correspondence – which was correct – was
intended to show through the “window” of the envelope, and serve as an address label.
On the record as it exists, however, we cannot make any definitive determinations.
                                             2
The court noted that D.N.J. Civ. R. 10.1 requires litigants to apprise the court of any

address change, and provides that the failure to do so may result in the imposition of

sanctions. The District Court concluded that dismissal of the case was appropriate here,

where Bishop’s failure to provide an accurate mailing address made “adjudication of the

case impossible.” See D. Ct. Order at 1. Bishop filed a timely notice of appeal.2

       We have jurisdiction pursuant to 28 U.S.C. § 1291. “Generally, an order which

dismisses a complaint without prejudice 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, 532 F.2d 950, 951 (3d Cir. 1976) (per curiam). In this case,

however, Bishop cannot meaningfully correct the error that led to the dismissal of his

case. Bishop argues that he has lived at his Hillsborough residence uninterrupted since

January of 1996, that he provided the District Court with an accurate mailing address, and

that the undeliverable mail was the result of mailing errors made by District Court

Clerk’s Office. His arguments are supported by the information in the record. Bishop is

not able to rectify the sanctioned conduct identified in the District Court’s order where



2
  After Bishop filed his notice of appeal, he filed a motion pursuant to Fed. R. Civ. P.
60(b) to vacate the order dismissing his case and a motion to appoint counsel. In a text
order entered on December 2, 2015, the District Court denied as moot Bishop’s motions
to vacate and to appoint counsel based on the filing of his notice of appeal. Bishop’s
motion to vacate was not filed within 28 days of entry of the District Court’s final order
and thus did not toll the time for appeal. See Fed. R. App. P. 4(a)(4). While Bishop’s
notice of appeal was timely filed from the District Court’s dismissal order entered on July
24, 2015, he did not file a notice of appeal from the subsequent order entered by the
District Court on December 2nd. Therefore, the propriety of that order is not before us.
                                               3
the information provided to the District Court was (and continues to be) accurate. See id.

at 951-52 (“Only if the plaintiff cannot amend or declares his intention to stand on his

complaint does the order become final and appealable.”). We are satisfied that the

District Court’s order is final within the meaning of § 1291. See, e.g., Wynder v.

McMahon, 360 F.3d 73, 76 (2d Cir. 2004) (“a dismissal without prejudice [for failure to

prosecute] that does not give leave to amend and closes the case is a final, appealable

order under 28 U.S.C. § 1291”).

       The District Court’s order dismissing the case as a sanction for failing to comply

with D.N.J. Civ. R. 10.1 can properly be construed as a dismissal for failure to prosecute,

or to comply with procedural rules or court orders. See Fed. R. Civ. P. 41(b); Donnelly

v. Johns-Manville Sales Corp., 677 F.2d 339, 340-41 (3d Cir. 1982) (holding that a

district court may sua sponte dismiss for failure to prosecute or comply with procedural

rules or court orders).3 This Court reviews a District Court’s order dismissing a case for

failure to prosecute for abuse of discretion. See Briscoe v. Klaus, 538 F.3d 252, 257 (3d

Cir. 2008). Under the circumstances of this case, we conclude that the District Court did

not exercise its sound discretion in dismissing Bishop’s case as a sanction for his failing

to file a notice of change of address pursuant to D.N.J. Civ. R. 10.1.

       Bishop bore no personal responsibility for the return of the mailings from the




3
  The District Court relied on this Court’s non-precedential opinion in McLaren v. N.J.
State Dep’t of Educ., 462 F. App’x 148, 149 (3d Cir. 2012), which affirmed its dismissal
                                             4
District Court Clerk as undeliverable. See, e.g., Poulis v. State Farm Fire & Cas. Co.,

747 F.2d 863, 868 (3d Cir. 1984). Bishop complied with his duty to provide the District

Court an up-to-date mailing address and has maintained the same address at all times

since instituting this action. The record reflects that the return of mail by the post office

as undeliverable resulted from errors made by the District Court Clerk’s office. When

the mail was returned as undeliverable, the District Court contacted Bishop by phone and

left a message that Bishop promptly returned. See Aplt’s Informal Br. 1, ¶ 5A; see also

Rule 60(b) Mot. (D. Ct. docket entry # 11) at 9, 18. Bishop assured the court that the

mailing address he provided was accurate. There is no indication in the record that the

District Court made any further attempt to contact Bishop or provided any warning that

his case might be dismissed for failure to prosecute. We note that there have been no

delivery problems with mailings to Bishop from this Court using that same address.

       Given the record in this case, we conclude that the District Court abused its

discretion in dismissing the case as a sanction for Bishop’s failure to provide the Court

with an accurate mailing address. Accordingly, we will vacate the District Court’s order

of dismissal and remand the case with directions to reinstate the complaint and that

plaintiff be afforded an opportunity to reserve the complaint at the defendant’s correct

address in accordance with the rules of court.




without prejudice for failure to prosecute in a case where documents mailed to the
plaintiff had been returned as undeliverable.
                                              5
