Opinion
Civil Action 23-2429
09-01-2023
WALLACE D. COWARD, Plaintiff, v. PHILA. DEPT. OF PRISONS, et al., Defendants.
ORDER
CYNTHIA M. RUFE, J.
AND NOW, this 1st day of September 2023, upon consideration of Plaintiff Wallace D. Coward's Motion to Proceed In Forma Pauperis [Doc. No. 1], his Prisoner Trust Fund Account Statement (ECF No. 5), and his pro se Complaint [Doc. No. 2], it is ORDERED as follows:
1. Leave to proceed in forma pauperis is GRANTED pursuant to 28 U.S.C. § 1915.
2. The Clerk of Court is DIRECTED to update Plaintiff's address to the facility address of SCI Smithfield, where Plaintiff is currently incarcerated under inmate number QP-7624.
3. Wallace D. Coward, #QP-7624, shall pay the full filing fee of $350 in installments, pursuant to 28 U.S.C. § 1915(b), regardless of the outcome of this case. The Court directs the Superintendent of SCI Smithfield or other appropriate official to assess an initial filing fee of 20% of the greater of (a) the average monthly deposits to Plaintiff's inmate account; or (b) the average monthly balance in Plaintiff's inmate account for the six-month period immediately preceding the filing of this case. The Superintendent or other appropriate official shall calculate, collect, and forward the initial payment assessed pursuant to this Order to the Court with a reference to the docket number for this case. In each succeeding month when the amount in Plaintiff's inmate trust fund account exceeds $10.00, the Superintendent or other appropriate official shall forward payments to the Clerk of Court equaling 20% of the preceding month's income credited to Plaintiff's inmate account until the fees are paid. Each payment shall refer to the docket number for this case.
4. The Clerk of Court is DIRECTED to send a copy of this Order to the Superintendent of SCI Smithfield.
5. The Complaint is DEEMED filed.
6. The Complaint is DISMISSED for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) as follows:
a. All claims against the Philadelphia Department of Prisons are DISMISSED WITH PREJUDICE. The Clerk of Court is DIRECTED to TERMINATE the “Phila. Dept. of Prisons” as a Defendant in this case.
b. The balance of the Complaint is DISMISSED WITHOUT PREJUDICE to Plaintiff filing an amended complaint in accordance with paragraph seven (7) of this Order.
7. Plaintiff may file an amended complaint within thirty (30) days of the date of this Order only as to those claims the Court has dismissed without prejudice. Any amended complaint must identify all defendants in the caption of the amended complaint in addition to identifying them in the body of the amended complaint and shall state the basis for Plaintiff's claims against each defendant. The amended complaint shall be a complete document that does not rely on the initial Complaint or other papers filed in this case to state a claim and should explain the relevant facts underlying each claim that Plaintiff intends to bring. When drafting his amended complaint, Plaintiff should be mindful of the Court's reasons for dismissing the claims in his initial Complaint as explained in the Court's Memorandum. Upon the filing of an amended complaint, the Clerk shall not make service until so ORDERED by the Court.
8. The Clerk of Court is DIRECTED to send Plaintiff a blank copy of the Court's form complaint for a prisoner filing a civil rights action bearing the above civil action number. Plaintiff may use this form to file his amended complaint if he chooses to do so.
This form is available on the Court's website at http://www.paed.uscourts.gov/documents/foims/frmc1983f.pdf.
9. If Plaintiff does not wish to amend his Complaint and instead intends to stand on his Complaint as originally pled, he may file a notice with the Court within thirty (30) days of the date of this Order stating that intent, at which time the Court will issue a final order dismissing the case. Any such notice should be titled “Notice to Stand on Complaint,” and shall include the civil action number for this case. If Plaintiff fails to file any response to this Order, the Court will conclude that Plaintiff intends to stand on his Complaint and will issue a final order dismissing this case.
See Weber v. McGrogan, 939 F.3d 232 (3d Cir. 2019) (quoting Borelli v. City of Reading, 532 F.2d 950, 951 n.1 (3d Cir. 1976)) (“If the plaintiff does not desire to amend, he may file an appropriate notice with the district court asserting his intent to stand on the complaint, at which time an order to dismiss the action would be appropriate.”); In re Westinghouse Sec. Litig., 90 F.3d 696, 703-04 (3d Cir. 1996) (holding “that the district court did not abuse its discretion when it dismissed with prejudice the otherwise viable claims . . . following plaintiffs' decision not to replead those claims” when the district court “expressly warned plaintiffs that failure to replead the remaining claims . . . would result in the dismissal of those claims”).
See Weber, 939 F.3d at 239-40 (explaining that a plaintiff's intent to stand on his complaint may be inferred from inaction after issuance of an order directing him to take action to cure a defective complaint). The six-factor test announced in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984), is inapplicable to dismissal orders based on a plaintiff's intention to stand on her complaint. See Weber, 939 F.3d at 240-41, 241 n.11 (treating the “stand on the complaint” doctrine as distinct from dismissals under Federal Rule of Civil Procedure 41(b) for failure to comply with a court order, which require assessment of the Poulis factors); see also Elansari v. Altria, 799 Fed.Appx. 107, 108 n.1 (3d Cir. 2020) (per curiam). Indeed, an analysis under Poulis is not required when a plaintiff willfully abandons the case or makes adjudication impossible, as would be the case when a plaintiff opts not to amend her complaint, leaving the case without an operative pleading. See Dickens v. Danberg, 700 Fed.Appx. 116, 118 n.2 (3d Cir. 2017) (per curiam) (citations omitted) (“Where a plaintiff's conduct clearly indicates that he willfully intends to abandon the case, or where the plaintiff's behavior is so contumacious as to make adjudication of the case impossible, a balancing of the Poulis factors is not necessary.”); Baker v. Accounts Receivables Mgmt., Inc., 292 F.R.D. 171, 175 (D.N.J. 2013) (collecting cases) (“[T]he Court need not engage in an analysis of the six Poulis factors in cases where a party willfully abandons her case or otherwise makes adjudication of the matter impossible.”).
It is so ORDERED.