Edward Kennedy v. Commonwealth of Pennsylvania

DLD-139 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-3274
___________
EDWARD THOMAS KENNEDY,
Appellant
v.
COMMONWEALTH OF PENNSYLVANIA
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 5:18-cv-04071)
District Judge: Honorable Gerald J. Pappert
____________________________________
Submitted for Possible Dismissal Due to a Jurisdictional Defect or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
March 21, 2019
Before: JORDAN, GREENAWAY, JR. and NYGAARD, Circuit Judges
(Filed August 14, 2019)
_________
OPINION*
_________
PER CURIAM
Pro se appellant Edward Kennedy appeals from the dismissal of his complaint for
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
lack of standing. For the reasons that follow, we will summarily affirm the District
Court’s judgment.
In September 2018, Kennedy filed a complaint in the District Court, challenging a
Pennsylvania statute that criminalizes harassment. He argues that he is entitled to
challenge the statute as “one of the people of Pennsylvania” because the statute “exceeds
the Commonwealth of Pennsylvania[’s] . . . jurisdiction” and thus “the Plaintiff (and all
of we the people) is injured” due to a “loss of rights.” Compl. at 1. Additionally,
Kennedy contends that “prosecuting attorneys employed by the [Commonwealth] settle
95% or mo[r]e of all criminal cases based on reliable sources plaintiff believes are
credible.” Id. at 2. Ultimately, the District Court screened Kennedy’s complaint
pursuant to 28 U.S.C. § 1915(e)(2)(B) and dismissed it without prejudice after
concluding that Kennedy lacked standing to pursue his claims. Kennedy timely appealed.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.1 We exercise
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“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,” unless “the plaintiff cannot amend or declares his intention to stand on
his complaint.” Borelli v. City of Reading, 532 F.2d 950, 951-52 (3d Cir. 1976) (per
curiam). However, this principle does not apply “where the district court has dismissed
based on justiciability and it appears that the plaintiff[] could do nothing to cure the[]
complaint.” Presbytery of N.J. of Orthodox Presbyterian Church v. Florio, 40 F.3d 1454,
1461 n.6 (3d Cir. 1994). In this case, the District Court dismissed Kennedy’s complaint
without prejudice and granted him 30 days to amend his complaint in an abundance of
caution due to his pro se status, but there was no apparent basis upon which Kennedy
could establish that he had standing to proceed. Further, even if the rule of Borelli
applied here, Kennedy chose not to amend his complaint within the time given by the
District Court and instead pursued this appeal, indicating his intention to stand on his
complaint. See Pa. Family Inst., Inc. v. Black, 489 F.3d 156, 162 (3d Cir. 2007) (“[T]he
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plenary review over the District Court’s dismissal of Kennedy’s complaint for lack of
standing. N. Jersey Brain & Spine Ctr. v. Aetna, Inc., 801 F.3d 369, 371 (3d Cir. 2015).
We may summarily affirm a district court’s decision “on any basis supported by the
record” if the appeal fails to present a substantial question. See Murray v. Bledsoe, 650
F.3d 246, 247 (3d Cir. 2011) (per curiam).
Article III of the Constitution limits the power of the federal judiciary to the
resolution of cases and controversies. U.S. Const. art. III, § 2. “That case-or-controversy
requirement is satisfied only where a plaintiff has standing.” Sprint Commc’ns Co., L.P.
v. APCC Servs., Inc., 554 U.S. 269, 273 (2008). To establish Article III standing, a
plaintiff must demonstrate: “(1) . . . an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable
judicial decision.” Cottrell v. Alcon Labs., 874 F.3d 154, 162 (3d Cir. 2017). The
alleged injury to the plaintiff must be “actual or imminent, not conjectural or
hypothetical.” Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 278 (3d Cir. 2014).
Accordingly, a plaintiff lacks standing to raise “a generally available grievance about
government” that “claim[s] only harm to his and every citizen’s interest in proper
application of the Constitution and laws, and seek[s] relief that no more directly and
tangibly benefits him than it does the public at large.” Lujan v. Defs. of Wildlife, 504
U.S. 555, 573-74 (1992).
§ 1291 finality requirement should be given a practical rather than a technical
construction.”) (internal quotation marks omitted).
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Kennedy’s complaint raises only a generalized grievance, alleging that a state
statute is unconstitutional because it somehow injures the public. Kennedy has not
explained why he believes that the statute is unconstitutional, or how the existence of the
statute has harmed him in any way. Accordingly, because we agree that Kennedy lacks
standing to pursue his claims, we will summarily affirm the District Court’s judgment.
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