Barry E. Shelley v. GEORGE PATRICK, Superintendent

ALD-090 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-3947
BARRY E. SHELLEY
v.
GEORGE PATRICK, Superintendent;
RANDALL E. BRITTON, Superintendent;
NANCY SMITH, Mail Inspector Supervisor;
NOREEN GREENLEAF, Corrections Health Care Administrator;
ELMER W. YOUNKIN, Corrections Health Care Administrator;
PRISON HEALTH CARE ADMINISTRATION/STAFF;
ERNEST OBROCK, Dentist, PHS William Civiello;
MICHELLE DRISKEL, Corrections Counselor;
MICHELLE IVICIC, Unit Manager, Management of Units
(W.D. Pa. No. 3-09-cv-00181)
BARRY E. SHELLEY
v.
JEFFREY L. MULLEN, Adult Probation/Parole (Supervisor);
SCOTT W. WALKER, Adult Probation/Parole (Officer);
EDWARD BAKALE, Adult Probation/Parole (Officer);
WALTER M. FELA, P.S.I. Investigator (Officer)
(W.D. Pa. No. 3-09-cv-00182)
Barry E. Shelley, Appellant
On Appeal from the United States District Court

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for the Western District of Pennsylvania
District Judge: Honorable Maurice B. Cohill
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit L.A.R 27.4 and I.O.P. 10.6
January 7, 2010
Before: SLOVITER, AMBRO and SMITH, Circuit Judges
(Opinion filed: January 20, 2010)
OPINION
PER CURIAM
Barry E. Shelly, proceeding in forma pauperis, appeals from an order of the
District Court for the Western District of Pennsylvania denying his motions to proceed in
forma pauperis and dismissing his complaints for failure to prosecute under Fed. R. Civ.
P. 41(b). For the reasons that follow, we will summarily vacate and remand to the
District Court for further proceedings. See 3d Cir. L.A.R 27.4; I.O.P. 10.6.
I.
On July 2, 2009, Shelley filed a motion to proceed in forma pauperis (“IFP”) in the
Western District of Pennsylvania with a civil complaint against prison administration and
staff for alleged violations of his constitutional rights. (W.D. Pa. No. 09-cv-00181). The
crux of his action is the claim that prison health personnel failed to provide adequate
treatment for a problem with his right foot, which left him unable to walk properly, and
for a cavity that went untreated for two years such that he became unable to eat without a

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1 These two actions were never formally consolidated, but it appears that the District
Court has been treating them as such, entering identical dismissal orders on September
10, 2009, that include both civil action numbers in the caption (09-cv-181 and 09-cv-
182). Shelley’s notice of appeal likewise references both civil action numbers, and this
judgment shall govern both cases.
2 It is unclear whether Shelley ever received this order as it appears to have been sent
to the wrong address. The order reflects that it was sent to SCI Houtzdale on August 31,
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“parcel plate.” (Compl. 2.) On July 9, 2009, Shelley filed a separate motion in the
Western District to proceed IFP with a civil complaint against several parole officers for
allegedly revoking his parole incident to a false arrest, failing to consider him for re-
parole, and making him serve time in excess of his sentence. (W.D. Pa. No. 09-cv-
00181). In both cases, the District Court ordered Shelley to submit a new address
(because it appeared that he had been released from prison) and either pay the filing fee or
submit a valid IFP motion within twenty days.1 Shelley complied, and on August 13,
2009, he submitted an IFP application in which he indicated that he had no employment,
no income or assets, and no dependents. He also included an inmate account statement
dated July 8, 2009, that reflected a negative (-) balance of $308.80.
On August 13, 2009, the Magistrate Judge issued a Report and Recommendation
(“R&R”) recommending that Shelley’s motion be denied in each case because his IFP
application was “inadequate to justify in forma pauperis status” and because his
underlying complaints were “futile.” (Aug. 13, 2009, R&R 1-2.) On August 25, 2009,
Shelley requested additional time to object to the R&R. The Magistrate Judge denied
Shelley’s request without explanation on August 31, 2009. 2 On September 10, 2009, after

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2009, notwithstanding Shelley’s notice of change of address which was docketed on
August 13, 2009.
3 Although the District Court did not adopt the recommendation of the Magistrate
Judge, it is worth noting that the R&R appears to have improperly considered the merits
of Shelley’s claims in making its recommendation to deny IFP. (See Aug. 13, 2009, R&R
2). IFP determinations generally are made solely on the basis of indigence, without
regard to the potential merit of a complaint. See Deutsch v. United States, 67 F.3d 1080,
1084 n.5 (3d Cir. 1995).
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reviewing the record de novo, the District Court denied Shelley’s motion to proceed in
forma pauperis, and dismissed both complaints without prejudice for failure to prosecute.3
Shelley filed a timely notice of appeal on October 7, 2009. Fed. R. App. P. 4(a)(1).
II.
The District Court denied Shelley’s IFP motions because it found his application
inadequate, and appears then to have dismissed the complaints for failure to prosecute
based on Shelley’s failure to either satisfy the IFP requirements or pay the filing fee.
Denial of a motion to proceed in forma pauperis is a final order over which we have
jurisdiction under 28 U.S.C. § 1291. Sinwell v. Shapp, 536 F.2d 15, 16 (3d Cir. 1976).
We review a district court’s denial of a motion to proceed in forma pauperis for abuse of
discretion. See Bullock v. Suomela, 710 F.2d 102, 103 (3d Cir. 1983). We may take
summary action if the appeal presents no substantial question. See 3d Cir. L.A.R. 24.7;
I.O.P. 10.6.
III.
The in forma pauperis statute provides that the District Court may authorize the

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4 Because Shelley was incarcerated at the time he filed his complaint, he was required
to supply “a certified copy of the trust fund account statement (or institutional equivalent)
for the prisoner for the 6-month period immediately preceding the filing of the complaint.
. ., obtained from the appropriate official of each prison at which the prisoner is or was
confined.” 28 U.S.C. § 1915(a)(2).
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commencement of a civil action without prepayment of fees “by a person who submits an
affidavit that includes a statement of all assets such prisoner possesses that the person is
unable to pay such fees . . . ” 28 U.S.C. § 1915(a)(1). A District Court's decision
whether to grant IFP status is based solely on the economic eligibility of the petitioner.
See Sinwell, 536 F.2d at 19. The court reviews the litigant’s financial statement, and, if
convinced that he or she is unable to pay the court costs and filing fees, the court will
grant leave to proceed in forma pauperis. Deutsche v. United States, 67 F.3d 1080, 1084
n.5 (3d Cir. 1995). Economic eligibility, however, does not require that a litigant subject
himself to complete destitution to maintain his lawsuit. See Jones v. Zimmerman, 752
F.2d 76, 79 (3d Cir. 1985).
Shelley’s IFP application was completed in full, and reflects that he is not
employed, has received no income in the past twelve months, has no savings or assets,
and no dependents. Although no longer incarcerated, Shelley also included an inmate
account statement dated July 8, 2009, which reflects a balance of negative (-) $308.80 at
the time he filed his complaint. See 28 U.S.C. § 1915(a)(2).4 Shelley’s application and
account statement plainly satisfy the financial eligibility requirements of 28 U.S.C. §
1915(a)(1). The District Court thus abused its discretion in denying Shelley’s motion to

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5 Even if the District Court’s denial of IFP had been proper, dismissing Shelley’s
complaint for failure to prosecute would have been error. Before entering a punitive
dismissal, the District Court is required to make explicit findings regarding the six factors
enumerated in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 869 (3d Cir.
1984). See Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 74 (3d Cir. 1987); see also
United States v. $8,221,877.16 in U.S. Currency, 330 F.3d 141, 161 (3d Cir. 2003) (“We
have opined that [the Poulis factors] must be weighed by a district court in determining
whether the harsh sanction of dismissal is justified.”). Here, the District Court did not
make any Poulis analysis, nor does it appear to have considered any of the Poulis factors
in making its decision.
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proceed in forma pauperis.5
IV.
For the foregoing reasons, we will summarily vacate the September 10, 2009 order
of the District Court and remand with instructions to grant Shelley’s motions to proceed
in forma pauperis and allow the cases to proceed.

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