Opinion
Civil Action 23-CV-0534
04-14-2023
BENJAMIN CUNNINGHAM, Plaintiffs, v. U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, et al., Defendants.
ORDER
CHAD F. KENNEY, J.
AND NOW, this 14th day of April, 2023, upon consideration of Plaintiff Benjamin Cunningham's Motion to Proceed In Forma Pauperis (ECF No. 1), his pro se Complaint (ECF No. 2), and his Motion for Summary Judgment (ECF No.4) it is ORDERED that:
1. Leave to proceed in forma pauperis is GRANTED pursuant to 28 U.S.C. § 1915.
2. The Complaint is DEEMED filed.
3. Cunningham's Freedom of Information Act (“FOIA”) claims against Defendants Beltran, Barker and Nixon, his claim for money damages for violations of FOIA, his claims under 42 U.S.C. § 1983, and his claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 392 (1971) are DISMISSED WITH PREJUDICE for the reasons stated in the Court's Memorandum.
4. The remainder of the Complaint is DISMISSED WITHOUT PREJUDICE for the reasons stated in the Court's Memorandum.
5. Cunningham may file an amended complaint within thirty (30) days of the date of this Order. 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 Cunningham'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. When drafting his amended complaint, Cunningham 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.
6. The Clerk of Court is DIRECTED to send Cunningham a blank copy of this Court's current standard form to be used by a self-represented litigant filing a civil action bearing the above-captioned civil action number. Cunningham may use this form to file his amended complaint if he chooses to do so.
7. If Cunningham 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. See Weber v. McGrogan, 939 F.3d 232 (3d Cir. 2019) (“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.” (quoting Borelli v. City of Reading, 532 F.2d 950, 951 n.1 (3d Cir. 1976))); 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”).
8. If Cunningham fails to file any response to this Order, the Court will conclude that Cunningham intends to stand on his Complaint and will issue a final order dismissing this case. 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).
9. Cunningham's Motion for Summary Judgment is DENIED WITHOUT PREJUDICE as premature.