Henry Unseld Washington v. City of Reading, 532 F.2d 950, 951-52 3d Cir. 1976 per curiam . Here, the Court…

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HLD-35 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3034
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HENRY UNSELD WASHINGTON,
Appellant
vs.
JAMES L. GRACE; DAVID J. WAKEFIELD; DORINA VARNER;
MELVIN S. LOCKETT; R. M. LAWLER; HARRY WILSON; LINDA HARRIS;
MARK KRYSEVIG; CAROL SCIRE; S. GLUNT; BARTLEY; RHODES;
DOBRYZINSKI; PEASTRACK; KOVAL; RITCHER; JOHN S. SCHAFFER;
WILLIAM S. STICKMAN; MICHAEL A. FARNAN; ALAN B. FOGEL;
FISHER; CAPT. MANCHAS; CAPT. KAUFFMAN; CAPT. SCOTT NICKELSON;
LT. EWING; LT. T. HOLTZ; LT. R. COOPER; SEG. JOHNSON;
MIRABELLA; LILLA; B. BUTLER; B. SMITH; HOSLER; MCCLAIN
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 07-cv-0867)
District Judge: Honorable John E. Jones III
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
January 30, 2009
Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges
(Opinion filed: November 25, 2009)
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OPINION
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The District Court dismissed the case without prejudice, but it appears to have done1
so with respect to an any future action Washington might file with the Court. Generally,
where a District Court has dismissed a complaint without prejudice, the dismissal is not
appealable under 28 U.S.C. § 1291 unless the litigant cannot cure the defect or where the
litigant declares an intention to stand on the complaint, whereupon the District Court's
order becomes final. Borelli v. City of Reading, 532 F.2d 950, 951-52 (3d Cir. 1976) (per
curiam). Here, the Court expressly closed the present action, barring any further
amendments to Washington’s complaint, and effectively dismissing the action with
prejudice. In addition, we conclude that the District Court’s dismissal here was final as
its effect was to require Washington to either pay a new filing fee outright or to commit
anew to paying a filing fee in installments pursuant to the in forma pauperis statute, 28
U.S.C. § 1915. Cf. Welch v. Folsom, 925 F.2d 666, 668 (3d Cir. 1991). We also
understand Washington’s course of conduct as an assertion that he satisfied the
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PER CURIAM.
Henry Washington appeals from an order of the District Court dismissing
his complaint. For the reasons that follow, we will vacate the District Court's order and
remand for further proceedings.
On May 14, 2007, Washington filed a complaint pursuant to 42 U.S.C. §
1983. The District Court determined that the complaint failed to comply with Fed. R.
Civ. P. 8 and 20 and dismissed it without prejudice in a July 2, 2007 Order. The Order
provided Washington with an opportunity to amend his complaint within twenty days and
further outlined the specific procedural flaws in his complaint. Following the District
Court’s granting of two extensions, Washington filed an amended complaint on August
16, 2007. The District Court subsequently entered an order dismissing Washington’s
action for failure to comply with Fed. R. Civ. P. 8, 10, and 20. Washington appeals.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We1

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requirements of filing a complaint, a legal question we may review. See Borelli, 572 F.2d
at 952 (noting that a without prejudice dismissal may be final if the plaintiff stands on his
complaint). The District Court did not explicitly consider limitations problems that
Washington would face in any newly filed complaint. If any claims would now be time-
barred, the District Court’s without-prejudice dismissal would now be final for that
reason as well. Fassett v. Delta Kappa Epsilon, 807 F.2d 1150, 1157. (3d Cir. 1986).
Federal Rule of Civil Procedure 20 allows a plaintiff to join defendants in one action2
if he asserts a right to relief arising out of the same transaction or occurrence. Fed. R. Civ.
P. 20. However, Rule 21 provides that misjoinder of parties is not grounds for dismissal
of an action. Fed. R. Civ. P. 21; Sabolsky v. Budzanoski, 457 F.2d 1245, 1249 (3d Cir.
1972). Thus, the District Court erred in dismissing Washington’s complaint on this basis.
In any event, we understand the District Court’s dismissal to have been primarily
predicated on Rule 8.
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review the District Court's decision for abuse of discretion. In re Westinghouse Sec.
Litig., 90 F.3d 696, 702 (3d Cir. 1996). Despite the deferential standard of review
afforded Rule 8 dismissals, we conclude that the District Court erred in dismissing
Washington’s amended complaint.2
Rule 8(a) requires a short and plain statement setting forth: (1) the grounds
upon which the court’s jurisdiction rests; (2) the claim(s) showing that the pleader is
entitled to relief; and (3) a demand for judgment for the relief sought by the pleader. See
Fed. R. Civ. P. 8; see also In re Westinghouse Sec. Litig., 90 F.3d at 702. In a § 1983
case, a plaintiff need only satisfy the liberal notice pleading requirement of Rule 8.
Abbott v. Latshaw, 164 F.3d 141, 149 (3d Cir. 1998). Courts are to construe complaints
so "as to do substantial justice," Fed. R. Civ. P. 8(e), keeping in mind that pro se
complaints in particular should be construed liberally. Dluhos v. Strasberg, 321 F.3d 365,
369 (3d Cir. 2003).

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The District Court concluded that the amended complaint should be
dismissed under Rule 8, not only because of its length, but because its statements were
neither short nor plain. The Court additionally concluded that Washington failed to
comply with Rule 10(b) which requires, inter alia, that a party “state claims or defenses in
numbered paragraphs, each limited as far as practicable to a single set of
circumstances...” See Fed. R. Civ. P. 10(b).
Although Washington's amended complaint is lengthy, at nearly 80 pages,
and lacks clarity in some places, we do not agree that it violated the basic pleading
requirements under Rule 8. At a minimum, the amended complaint provided defendants
with “fair notice” of Washington’s claims. Bell Atlantic Corp. v. Twombly, 127 S. Ct.
1955, 1964 (2007). In its July 2 Order dismissing Washington’s original complaint, thend
District Court noted that the complaint violated Rule 8 because it “contain[ed] no factual
allegations to speak of and aver[ed] only generally that each of the Defendants failed to
uphold their duties.”
In his amended complaint, Washington significantly reduced the number of
defendants in the case. At the beginning of the amended complaint, he set forth a list of
the constitutional violations at issue. In each numbered paragraph, he matched the
constitutional violations with specific defendants. In the majority of the paragraphs,
Washington described the facts supporting the claim and the dates on which the alleged
violations occurred. Furthermore, the District Court’s own order suggests it was able to

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discern the outlines of Washington’s claims concerning alleged deprivation of religious
rights, medical care and access to the courts. (July 2, 2007 Order at p.1, n.1, dkt. #7)
Indeed, another of the District Court’s orders suggests it thought the amended complaint
might be sufficiently meritorious to be worthy of appointment of pro bono counsel.
(January 15, 2008 Order at p.8, n.2, dkt. #25).
For these reasons, we do not agree that the defendants were incapable of
answering Washington’s amended complaint. See Alston v. Parker, 363 F.3d 229, 233
(3d Cir. 2004). While the amended complaint may not be clear in all respects, it is not
unintelligible. We find that it met the notice pleading requirement under Rule 8.
Accordingly, we will vacate the District Court's order and remand this case
for further proceedings. The motion for appointment of counsel is denied without
prejudice. Washington may request appointment of counsel in the District Court.
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