DLD-139 NOT PRECEDENTIAL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

(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

We exercise

1 “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,

(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,

, 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,

, 162 (3d Cir. 2007) (“[T]he 2 plenary review over the District Court’s dismissal of Kennedy’s complaint for lack of

standing. N. Jersey Brain & Spine Ctr. v. Aetna, Inc.,

(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,

(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.,

(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.,

(3d Cir. 2017). The

alleged injury to the plaintiff must be “actual or imminent, not conjectural or

hypothetical.” Blunt v. Lower Merion Sch. Dist.,

(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,

(1992).

§ 1291 finality requirement should be given a practical rather than a technical construction.”) (internal quotation marks omitted). 3 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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