GLD-246 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-2381
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PATRICK DANIEL TILLIO, JR.,
Appellant
v.
LOWER MERION POLICE;
LOWER MERION POLICE DEPARTMENT
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-12-cv-02419)
District Judge: Honorable Mary A. McLaughlin
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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
August 2, 2012
Before: FUENTES, GREENAWAY, JR. and BARRY, Circuit Judges
(Opinion filed: August 30, 2012)
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OPINION
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PER CURIAM
Patrick Daniel Tillio, Jr. (“Tillio”), proceeding pro se and in forma pauperis,
appeals from the District Court‟s order dismissing his complaint. We will summarily
affirm.
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I.
In April 2012, Tillio filed an application to proceed in forma pauperis and a
complaint alleging that the Lower Merion Police were violating his civil rights and
working with people to take his father‟s home. (Dkt. No. 3.) By order entered May 8,
2012, the District Court granted Tillio leave to proceed in forma pauperis but dismissed
his complaint without prejudice. (Dkt. No. 2.) Tillio was granted leave to amend his
complaint within thirty days.
Rather than filing an amended complaint, Tillio filed a notice of appeal on May
11, 2012. The Clerk notified Tillio of a potential jurisdictional defect pursuant to Borelli
v. City of Reading, 532 F.2d 950 (3d Cir. 1976) (per curiam), and that his appeal would
be submitted for possible summary action. Tillio did not respond.
II.
Normally, an order that “dismisses a complaint without prejudice is neither final
nor appealable” under 28 U.S.C. § 1291. Borelli, 532 F.2d at 951. Such an order
becomes final and appealable, though, if the plaintiff “declares his intention to stand on
his complaint” instead of amending it. Id. at 952.
There is no “clear rule for determining when a party has elected to stand on his or
her complaint.” Hagan v. Rogers, 570 F.3d 146, 151 (3d Cir. 2009). However, when the
District Court has provided a set amount of time within which to amend, and the plaintiff
fails to do so, the Court may conclude that the plaintiff elected to stand on his complaint.
Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 n.5 (3d Cir 1992); see also Hagan, 570
F.3d at 151 (concluding that plaintiffs stood on their complaints because they filed
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notices of appeal rather than amending within specified time period); Frederico v. Home
Depot, 507 F.3d 188, 193 (3d Cir. 2007) (same).
Tillio filed a notice of appeal, instead of amending his complaint, within the thirty-
day window provided by the District Court. Therefore, Tillio elected to stand on his
complaint, and the order of the District Court is final and appealable. We have
jurisdiction over his appeal.
Having determined that jurisdiction is proper, we may summarily affirm the
decision of the District Court if no substantial question is presented on appeal. 3d Cir.
LAR 27.4 and I.O.P. 10.6. We agree with the District Court that Tillio‟s complaint does
not meet the pleading requirements of Federal Rule of Civil Procedure 8(a). He claimed
that the Lower Merion Police were “going against [his] civil rights” and “work with
people take home from dad.” (Dkt. No. 3, p. 3.) Tillio did not state any particularized
basis for the Lower Merion Police Department‟s liability, nor did he identify individual
police officers who may have violated his rights. He named two individuals as additional
defendants but did not describe any factual basis for their liability. Tillio also claimed
that the police and others were trying to take his father‟s home. The District Court
correctly determined that “he does not have standing to raise claims based on injury
sustained by his father.” (Dkt. No. 2, p. 2.)
In sum, Tillio‟s complaint did not contain the requisite “short and plain statement
of the claim showing that [he] is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Dismissal
was therefore appropriate. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (complaint
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does not suffice “if it tenders „naked assertion[s]‟ devoid of „further factual
enhancement‟”) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
III.
The District Court properly dismissed Tillio‟s complaint and allowed him leave to
amend. We will summarily affirm the order of the District Court because no substantial
question is presented by this appeal. 3d Cir. LAR 27.4 and I.O.P. 10.6.
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