                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 17-3456
                                     ____________

                                   JAY L. THOMAS,
                                                Appellant

                                            v.

                        COMMISSIONER SOCIAL SECURITY
                        __________________________________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                              (D.N.J.. No. 2-16-cv-03392)
                      District Judge: Honorable Claire C. Cecchi
                      __________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   February 9, 2018

            Before: VANASKIE, COWEN and NYGAARD, Circuit Judges

                            (Opinion filed: February 9, 2018)
                                    ____________

                                      OPINION*
                                     ____________


PER CURIAM

      Jay L. Thomas appeals from an order of the District Court dismissing his amended

complaint without prejudice. For the reasons that follow, we will vacate that order and

the order which preceded it and remand for further proceedings.
       On June 10, 2016, Thomas filed a complaint pro se in the United States District

Court for the District of New Jersey against the Commissioner of Social Security

pursuant to 42 U.S.C. § 405(g) (“Any individual, after any final decision of the

Commissioner of Social Security made after a hearing to which he was a party,

irrespective of the amount in controversy, may obtain a review of such decision by a civil

action commenced . . . in the district court of the United States for the judicial district in

which the plaintiff resides.”). On June 15, 2016, the District Court granted Thomas’s

application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a)(1) and directed

the Clerk of the District Court to file the complaint without prepayment of filing fees.

The order did not direct the Clerk of Court to provide Thomas with United States

Marshals Service (“USMS”) Form 285 for service upon the Commissioner nor instruct

Thomas to provide the Marshals Service with a copy of his complaint, a waiver of service

form, and a properly filled-out USMS Form 285. A Summons was issued but the

Marshals Service was not directed to serve the Summons on the Commissioner (or the

United States Attorney), and, in fact, service was not effectuated. Thereafter, on July 7,

2016, Thomas filed an item which was treated as an amended complaint (but which was

more in the nature of a supplement to his original complaint). Service of this amended

complaint was never effectuated either.

       On November 2, 2016, the Clerk of the District Court issued a Notice of Call for

Dismissal pursuant to the local civil rules, explaining that, unless Thomas could

demonstrate good cause, the matter would be dismissed for lack of prosecution. Thomas

filed various responses to the Clerk’s order between January and August 2017. In an

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order filed on the civil docket on August 23, 2017, the District Court granted Thomas 60

days to either: (1) file a second amended complaint; or (2) request that the Court dismiss

the case without prejudice. The Court advised Thomas that he had not proven that he had

properly served the Commissioner within 90 days of the summons being issued, and

warned him that the action could be dismissed under Fed. R. Civ. P. 4(m) if he did not

effectuate service. The Court explained that, if Thomas chose to file a second amended

complaint, he would have to serve the second amended complaint on the defendant

within 90 days and file proof of service on the docket.

       Subsequently, on September 29, 2017, Thomas requested that the Court dismiss

his civil action without prejudice, see Docket Entry No. 16. In an order entered on

October 17, 2017, the District Court dismissed Thomas’s complaint without prejudice.

       Thomas filed a timely notice of appeal, seeking review of the August 23, 2017

order, in which the District Court gave him the “option” either to proceed with his civil

action or discontinue it without prejudice. We have jurisdiction under 28 U.S.C. § 1291.1

       We will vacate the District Court’s order dismissing Thomas’s amended complaint

without prejudice and the August 23, 2017 order which preceded it and remand the

matter for further proceedings. In his Informal Brief, Thomas contends that the District

1
  Barring exceptions that do not apply to this case, the jurisdiction of federal courts of
appeal is limited to review of “final decisions of the district courts of the United States.”
28 U.S.C. § 1291. “[A]n 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). “Only if the plaintiff cannot amend or declares his intention to stand
on his complaint does the order become final and appealable.” Id. at 951-52. We
conclude that the order dismissing the amended complaint without prejudice is final and
appealable under the circumstances presented here.
                                              3
Court erred in requiring him to effectuate service or suffer a dismissal without prejudice.

Appellant’s Informal Brief, at 5-6. The Commissioner does not disagree. Generally, the

“plaintiff is responsible for having the summons and complaint served within the time

allowed by Rule 4(m).” Fed. R. Civ. P. 4(c)(1). But, pursuant to Rule 4(c)(3) of the

Federal Rules of Civil Procedure, when a plaintiff is authorized to proceed in forma

pauperis under 28 U.S.C. § 1915, the District Court must order that service “be made by a

United States marshal or deputy marshal or by a person specially appointed by the court.”

Fed. R. Civ. P. 4(c)(3).

       Here, because Thomas was granted in forma pauperis status under 28 U.S.C. §

1915, the District Court erred in advising him that, if he chose to file a second amended

complaint, he would have to serve it on the defendant within 90 days and file proof of

service on the docket. Although ultimately Thomas requested dismissal without

prejudice, his choice to accept dismissal without prejudice was not an informed one, due

to the Court’s error. The matter is thus properly remanded to the District Court to permit

service by the Marshals Service pursuant to Fed. R. Civ. P. 4(c)(3). See Thompson v.

Maldonado, 309 F.3d 107, 109 n.2 (2d Cir. 2002) (stating that the “Clerk of the District

Court . . . ordinarily provides this form to indigent plaintiffs upon the filing of a

complaint. If properly filled out and returned, the form instructs the [Marshals Service]

to serve process on the defendant.”); see also Welch v. Folsom, 925 F.2d 666, 670 (3d

Cir. 1991) (recognizing that plaintiffs proceeding in forma pauperis are entitled to rely

upon service by the U.S. Marshal).



                                               4
      For the foregoing reasons, we will vacate the order dismissing the amended

complaint without prejudice and the order which proceeded it and remand for further

proceedings.




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