CLD-145 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 19-3177 ___________

AMRO A. ELANSARI, Appellant

v.

ALTRIA; BRITISH AMERICAN TOBACCO; IMPERIAL TOBACCO; JAPAN TOBACCO ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 2-19-cv-03415) District Judge: Honorable Mark A. Kearney ____________________________________

Submitted for Possible Dismissal Due to a Jurisdictional Defect or Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 March 20, 2020 Before: JORDAN, KRAUSE, and MATEY, Circuit Judges

(Opinion filed: March 25, 2020) ___________

OPINION* ___________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM

Amro A. Elansari appeals from the order of the District Court dismissing his

complaint. We will affirm.

I.

Elansari is a frequent pro se litigant. In this case, he filed suit pro se against four

tobacco companies. His cursory complaint alleged that defendants “keep putting out

toxic—cancer causing—radioactive cigarettes to addict people and have them smoking

on every street and every corner in standard towns and places for me to breathe in,

suffocate, and suffer consequences, while the companies profit.” Elansari further alleged

without elaboration that his injuries consisted of “damage to health pain & suffering.”

He sought compensatory and punitive damages as well as unspecified equitable relief.

By order entered August 5, 2019, the District Court granted Elansari leave to

proceed in forma pauperis, screened his complaint pursuant to

(e)(2)(B),

and dismissed it without prejudice pursuant to § 1915(e)(2)(B)(ii) for failure to state a

claim. In doing so, the District Court explained that Elansari’s allegations were too

generalized to state a claim because he did not allege what products the defendants sold,

how those products injured him, or any facts suggesting that he even has standing to

assert a claim. The District Court granted Elansari leave to file an amended complaint by

September 3, 2019. The District Court also notified him that, if he did not do so, it might

dismiss the case for failure to prosecute without further notice.

2 Elansari did not file an amended complaint or otherwise respond to the District

Court’s order. Thus, by order entered September 9, 2019, the District Court dismissed

the action without prejudice for failure to prosecute and directed its Clerk to close the

case. Elansari appeals.

II.

We have jurisdiction because “a dismissal without prejudice [for failure to

prosecute] that does not give leave to amend and closes the case is a final, appealable

order under

.” Wynder v. McMahon,

(2d Cir. 2004).

Ordinarily, we review dismissals for failure to prosecute for abuse of discretion. See

Briscoe v. Klaus,

(3d Cir. 2008). And ordinarily, District Courts must

consider various factors before dismissing an action on that basis. See

at 258 (citing

Poulis v. State Farm Fire & Cas. Co.,

(3d Cir. 1984)).

In this case, however, the District Court initially dismissed Elansari’s complaint

without prejudice on the merits and notified him that the action was subject to dismissal

if he did not file an amended complaint. Thus, the effect of the District Court’s

subsequent dismissal for failure to prosecute was simply to render final its previous

dismissal for failure to state a claim.1 We review such dismissals de novo, see Fantone v.

1 When a District Court dismisses a complaint without prejudice and with leave to amend, a plaintiff who believes that his or her existing allegations are sufficient can elect to decline amendment. See Weber v. McGrogan,

(3d Cir. 2019). Elansari has done so here because he did not amend his complaint within the time permitted and instead argues on appeal that his allegations are sufficient.

. A 3 Latini,

(3d Cir. 2015); Allah v. Seiverling,

(3d Cir.

2000), and we will do so in this case.

Having done so, we will affirm largely for the reasons explained by the District

Court in its initial order dismissing the complaint. In order to state a claim, even a pro se

plaintiff must allege “sufficient factual matter; accepted as true; to state a claim to relief

that is plausible on its face.” Fantone,

(quoting Ashcroft v. Iqbal,

(2009)). Elansari has not done that here. In particular, Elansari’s cursory

complaint is devoid of allegations plausibly suggesting either that he has suffered a

legally cognizable injury or that defendants are responsible for that injury. Elansari

argues with little elaboration that his existing allegations are sufficient but, for these

reasons, they are not.

III.

For these reasons, we will affirm the final judgment of the District Court on the

ground that Elansari’s complaint failed to state a claim on which relief can be granted.

plaintiff who takes that approach is not necessarily “failing to prosecute.” Thus, to avoid confusion, a District Court faced with this situation should simply enter an order converting its previous dismissal without prejudice into a dismissal with prejudice on the merits.

at 241 (quoting Borelli v. City of Reading,

, 951 n.1 (3d Cir. 1976)). 4