Lavon Smith v. Jamie Luther

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-3533
__________
LAVON CECIL SMITH,
Appellant
v.
SUPERINTENDENT JAMIE LUTHER; CHAD WAKEFIELD, Deputy Superintendent;
DR. D DOLL’S SMITHFIELD MEDICAL DEPARTMENT; PERRIGO PIC (R)
MANUFACTURING: CLAY; DIAMOND PHARMACY SERVICES
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 1-20-cv-01621)
District Judge: Honorable Christopher C. Conner
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 17, 2021
Before: RESTREPO, PHIPPS and COWEN, Circuit Judges
(Opinion filed: January 19, 2022)
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OPINION*
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PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
In the District Court, pro se appellant Lavon Smith filed a civil rights complaint
and sought to proceed in forma pauperis (IFP). The District Court, observing that Smith
had just under $600 in his prison account as well as a steady, albeit modest, stream of
income, concluded that Smith was not financially eligible to proceed IFP and denied the
motion (as well as a subsequent request for reconsideration). When Smith did not pay the
filing and administrative fees by the deadline prescribed by the District Court, the Court
dismissed the action. Smith appealed. We will affirm.1
First, in his appellate brief, Smith has not raised any challenges to the District
Court’s IFP decision or dismissal order. He has therefore forfeited any arguments that he
might have. See In re Wettach, 811 F.3d 99, 115 (3d Cir. 2016) (“[B]ecause they fail to
develop [two] argument[s] in their opening brief, the Court holds that the [appellants]
have forfeited these claims.”); Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d
Cir. 2013) (noting that pro se litigants “must abide by the same rules that apply to all
other litigants”).2
Even if Smith had not forfeited any challenges to the District Court’s order, the
District Court acted within its discretion. “In this Circuit, leave to proceed in forma
pauperis is based on a showing of indigence.” Deutsch v. United States, 67 F.3d 1080,
1
We have jurisdiction under 28 U.S.C. § 1291. See Wynder v. McMahon, 360 F.3d 73,
76 (2d Cir. 2004).
2
Smith argues in his brief only that he “never received a Court order” and that “the facts
have never been adjudicated.” However, Smith attached all of the relevant orders to his
notice of appeal.
2
1084 n.5 (3d Cir. 1995); see also Walker v. People Express Airlines, Inc., 886 F.2d 598,
601 (3d Cir. 1989). While paying the filing and administrative fees would not have left
Smith with a large amount of savings, in light of his prison income and the gifts he
receives, we cannot say that the District Court abused its discretion in concluding that
Smith was not entitled to proceed IFP. See generally Bullock v. Suomela, 710 F.2d 102,
103 (3d Cir. 1983).
Moreover, the District Court did not err in dismissing the action without prejudice
after Smith failed to make payment. Cf. 3d Cir. L.A.R. 107.2 (providing that Clerk of
this Court may dismiss appeal for failure to prosecute if appellant does not pay fees
within 14 days of notice); In re Westinghouse Sec. Litig., 90 F.3d 696, 704 (3d Cir. 1996)
(stating that after plaintiff failed to replead after being directed to do so, “it is difficult to
conceive of what other course the court could have followed” apart from dismissing the
complaint (citation and quotation marks omitted)).
Accordingly, we will affirm the District Court’s judgment.
3