NOT PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

N O : 05-2415

C A R L DWAYNE CRAWFORD,

Appellant

v. E D W A R D M. FRIMEL; VITO D. ROSELLI;

K E I T H R. HOLDSWORTH; MICHAEL CARBONELL;

K E V IN MCSHANE; JAMES R. MELINSON

O n Appeal From the United States District Court

F o r the Eastern District of Pennsylvania

(D .C . Civ. No. 05-cv-00118)

D istric t Judge: Honorable Mary A. McLaughlin

S u b m itte d Under Third Circuit L.A.R. 34.1(a)

J u ly 5, 2006

B e f o re : MCKEE, FUENTES AND NYGAARD, CIRCUIT JUDGES

(F ile d July 26, 2006)

OPINION

P E R CURIAM A p p e llan t Carl Crawford appeals from a District Court order denying his request to p ro c e e d in forma pauperis ("IFP") in his civil rights action brought under Bivens v. Six U n k n o w n Named Agents on the Federal Bureau of Narcotics, 403 U.S. 388 (1971). For th e reasons that follow, we will vacate the District Court's order and remand the matter f o r further proceedings.

I. Facts and Procedural History O n January 11, 2005, Crawford filed a Bivens action against five FBI agents and U n ite d States Magistrate Judge James R. Melinson alleging that the Defendants conspired to issue a warrant and search his home without probable cause. He seeks release from c u sto d y, the expungement of his record, and monetary damages. He also filed a c o m p l e te d application to proceed IFP with the necessary attachments.

T w o days later, the District Court issued a memorandum implicitly finding that C raw fo rd is eligible to proceed IFP and that $20.76 would be deducted from Crawford's p ris o n account. Crawford v. Frimel, No. 05-cv-00118, Mem. and Order (E.D. Pa. Jan. 14, 2 0 0 5 ). However, the District Court denied the motion because Crawford "may not have k n o w n when he brought this action that he must pay the filing fee, and that even if the full f ilin g fee, or any part of it, has been paid, the Court must dismiss the case if it finds that th e action" falls within 28U.S.C. § 1915(e)(2). The District Court then issued the fo llo w ing order: 1. T h e petition is DENIED WITHOUT PREJUDICE to its reassertion in ac co rd a n ce with the terms of this order; 2. If plaintiff files with the Court within twenty (20) days from the date of this o rd e r a notice that he wishes to proceed with this action and thereby o b lig a te himself to pay the $150 filing fee, this action will be reinstated; and 3. T h e Clerk of Court shall CLOSE this case statistically.

Id . The Court sent Crawford notice of the order, but the order was returned by the P o s ta l Service as undeliverable. On April 19th, Crawford gave notice of a change of a d d re ss . The District Court immediately forwarded a copy of the January 14, 2005 order to Crawford's new address. Crawford quickly responded with a document titled "Petition to Appeal To Proceed in forma pauperis," which the District Court entered on April 29, 2 0 0 5 . The District Court treated the document as a notice of appeal (NOA) from the o rd e r entered on January 14, 2005. We granted Crawford's request to proceed IFP on a p p e al, but sent him a letter explaining that the appeal might be dismissed for lack of ju ris d ic tio n because the order is not final or appealable. See Borelli v. City of Reading, 5 3 2 F.2d 950, 951-52 (3d Cir. 1976).

O n July 27, 2005, we entered the following order: It appears that Appellant's notice of appeal was filed more than sixty days after the D is tric t Court's order entered January 14, 2005 became final at the expiration of th e twenty-day period in which Appellant had to respond. See Fed. R. App. P.

4 (a )(1 )(A ); Penn West Assoc., Inc. v. Cohen, 371 F.3d 118, 128 n.9 (3d Cir. 2004) (e x p la in in g that a dismissal without prejudice becomes final at the conclusion of th e designated period). We remand to the District Court for the purposes of d e te rm in in g whether Appellant satisfies the requirements of either Federal Rule of A p p e lla te Procedure 4(a)(5) or 4(a)(6). The Clerk shall transmit to the District C o u rt Appellant's document entitled "Petition To Appeal To Proceed in forma p a u p e ris " which the District Court may wish to construe as either a motion for ex te n s io n of time to file an appeal under Federal Rule of Appellate Procedure 4 (a )(5 ) or a motion to reopen the time to file an appeal under Federal Rule of A p p e lla te Procedure 4(a)(6). In the meantime, we retain jurisdiction and postpone ru lin g on whether to dismiss for lack of jurisdiction.

O n remand, the District Court held that Crawford fulfilled the requirements of Rule 4 (a )(5 ) and granted his motion to appeal out of time. We then entered a briefing s c h e d u le . Crawford timely filed his pro se brief and filed a motion for the appointment of c o u n se l on appeal as well as a motion to supplement the pleadings and add additional d e f e n d a n ts. The Appellees filed a motion to dismiss the appeal for lack of appellate ju ris d ic tio n or as untimely and also filed their appellate brief. Crawford submitted a re p ly. The matter is now ripe for review.

II. Jurisdiction and Timeliness of the Appeal W e have jurisdiction to review final orders of the District Court. 28U.S.C. § 1 2 9 1 . The denial of a motion to proceed IFP is a final and appealable order. See AbdulA k b a r v. McKelvie, 239 F.3d 307, 311 (3d Cir. 2001). The parties do not dispute that the D is tric t Court's order dismissing the case without prejudice became final at the expiration o f the twenty-day window. See Penn West Assoc., Inc. v. Cohen, 371 F.3d 118, 128 n.9 (3 d Cir. 2004). Nor do the parties challenge on appeal the propriety of the District C o u rt's order granting an extension of time to file an appeal. However, the Appellees s till seek to dismiss the appeal arguing that the notice of appeal was untimely filed.1 Once the District Court construed Crawford's "Petition to Appeal" to include a re q u e st for an extension of time under Rule 4(a)(5), and granted the motion, the notice of a p p e a l filed on April 29, 2005 became timely filed. The Appellees have not filed a crossa p p e a l challenging the District Court's order granting Crawford an extension of time to f ile an appeal under 4(a)(5), thereby waiving the issue on review. See Helvering v. P f e if f er, 302 U.S. 247, 250-51 (1937) ("[A]n appellee cannot without a cross-appeal a tta c k a judgment entered below."). Thus, we accept that Appellant's April 29, 2005 p e titio n , which was construed as a notice of appeal, is timely, and turn to whether the D is tric t Court abused its discretion in denying Crawford's motion to proceed IFP.

III. IFP W e review a District Court order denying a motion to proceed IFP for abuse of d is c re tio n . See Abdul-Akbar v. Watson, 901 F.2d 329, 331 (3d Cir. 1990). Title 28 U .S .C . § 1915(a) sets forth the conditions that a petitioner must satisfy in order to receive IF P status. See also Roman v. Jeffes, 904 F.2d 192, 194 n.1 (1990). Section 1915(a) provides: (1 ) Subject to subsection (b), any court of the United States may authorize the c o m m e n c em e n t, prosecution or defense of any suit, action or proceeding, c iv il or criminal, or appeal therein, without prepayment of fees or security th e re f o r, by a person who submits an affidavit that includes a statement of a ll assets such prisoner possesses that the person is unable to pay such fees o r give security therefor. Such affidavit shall state the nature of the action, d e f e n s e or appeal and affiant's belief that the person is entitled to redress.

(2 ) A prisoner seeking to bring a civil action or appeal a judgment in a civil a c tio n or proceeding without prepayment of fees or security therefor, in a d d itio n to filing the affidavit filed under paragraph (1), shall submit a c e rtif ie d copy of the trust fund account statement (or institutional e q u iv a le n t) for the prisoner for the 6-month period immediately preceding th e filing of the complaint or notice of appeal, obtained from the a p p ro p ria te official of each prison at which the prisoner is or was confined.

In Sinwell v. Shapp, we explained that it would be improper for a District Court to d e n y a motion for IFP and dismiss a case on "the inappropriate factor of venue rather than o n economic status." 536 F.2d 15, 18-19 (3d Cir. 1976). Although § 1915 was amended to permit a court to dismiss a case as frivolous, Sinwell implies that without express a u t h o r iz a tio n to consider other factors, IFP should be granted or denied based on those re q u ire m e n ts set forth in the rule. See also Roman, 904 F.2d at 194 n.1 (explaining that IF P determinations consist of a two-step inquiry§ 1915(e)).

As the D.C. Circuit explained in In re Green, 669 F.2d 779 (D.C. Cir. 1981), " [ a]p a rt from the necessity of a case-by-case determination of poverty, frivolity or m a lic io u s n e s s , a court may impose conditions upon a litigant­even onerous conditions­so lo n g as they assist the court in making such determinations" and do not deny the litigant h is constitutional right to access the courts. Id. at 786.

H e re District Court did not deny Crawford's IFP status on an assessment of f in a n c ia l eligibility or under § 1915(e). Rather, it acknowledged that Crawford qualifies f o r IFP, but denied the application because Crawford failed to timely respond indicating h is desire to proceed on the complaint. The District Court's order was not imposed with the purpose of assisting the Court in making a financial eligibility determination. Rather, its intent was to give Crawford additional warning that he would still be charged even if th e District Court dismissed the case as frivolous. Although we applaud the District C o u rt's desire to assist a pro se litigant, imposing upon Crawford an additional burden d e ta c h ed from establishing financial eligibility was an abuse of discretion.

A c c o rd in g ly, we will vacate the District Court's order and remand the case for f u rth e r proceedings. Appellant's motion for the appointment counsel on appeal is denied.

Appellees' motion to dismiss is denied.2

1 We have yet to decide whether the time to file a notice of appeal is jurisdictional o r a "claim-processing" rule subject to waiver. See Eberhart v. United States, __U.S.__,

1 2 6 S. Ct. 403 (2005). However, we need not address that issue here because the tim e lin e s s of the notice of appeal is not at issue in this case.

2 The Appellees filed a motion to dismiss, repeating the argument in their brief. T h e Appellees' motion is meritless, ignores and omits key facts, and incorrectly applies o b v iou s rules of date tabulation. The Appellees, through counsel, argue that Crawford's n o tice of appeal is untimely because he fails to satisfy Federal Rule of Appellate P r o c e d u re 4(a)(6). Inexplicably, the Appellees completely ignore this Court's remand o rd e r and the District Court's order granting a Rule 4(a)(5) extension. Indeed, they even f a il to mention Rule 4(a)(5) at all in either their motion to dismiss or their appellate brief. It is as if the Appellees overlooked the past year of litigation in this case.