Opinion
Civil Action 23-CV-0383
04-19-2023
KAREN ELIZABETH JENKINS and JASON SCOTT PETTY, Plaintiffs, v. TYLER DEVOE, et al., Defendants.
ORDER
KAI SCOTT, J.
AND NOW, this17 th day of April, 2023, upon consideration of Plaintiff Jason Scott Petty's Motion for Leave to Proceed In Forma Pauperis (ECF No. 1), his Prisoner Trust Fund Account Statement (ECF No. 3), and his pro se Complaint (ECF No. 2), it is ORDERED that:
1. Leave to proceed in forma pauperis is GRANTED pursuant to 28 U.S.C. § 1915.
2. Jason Scott Petty, #44599, 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 Warden of Chester County Prison or other appropriate official to assess an initial filing fee of 20% of the greater of (a) the average monthly deposits to Petty's inmate account; or (b) the average monthly balance in Petty's inmate account for the six-month period immediately preceding the filing of this case. The Warden 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 Petty's inmate trust fund account exceeds $10.00, the Warden or other appropriate official shall forward payments to the Clerk of Court equaling 20% of the preceding month's income credited to Petty's inmate account until the fees are paid. Each payment shall refer to the docket number for this case.
3. The Clerk of Court is DIRECTED to send a copy of this Order to the Warden of Chester County Prison.
4. The Complaint is DEEMED filed.
5. For the reasons stated in the Court's Memorandum, the Complaint is DISMISSED as follows:
a. Claims brought on behalf of Karen Elizabeth Jenkins are DISMISSED WITHOUT PREJUDICE;
b. Petty's claims against the West Caln Township Police Department are DISMISSED WITH PREJUDICE for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii); and
b. Petty's remaining claims brought against Defendants Shaw, Oher, and Devoe are DISMISSED WITHOUT PREJUDICE for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
6. The Clerk of Court is DIRECTED to TERMINATE both Karen Elizabeth Jenkins and the West Caln Township Police Department as parties in this matter.
7. Petty may file an amended complaint within thirty (30) days of the date of this Order 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 Petty'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, Petty 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 Petty a blank copy of the Court's form complaint for a prisoner filing a civil rights action bearing the above civil action number. Petty 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. go v/documents/form s/frmc 1983 f. pdf.
9. If Petty 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.l (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”).
10. The Clerk of Court is DIRECTED to send Petty blank copies of this Court's current standard form for filing a petition pursuant to 28 U.S.C. § 2254 in accordance with his February
11. If Petty fails to file any response to this Order, the Court will conclude that Petty 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 plaintiffs 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 plaintiffs intention to stand on his complaint. See Weber, 939 F.3d at 241 & n.l 1 (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.l (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 his complaint, leaving the case without an operative pleading. See Dickens v. Danberg, 700 Fed.Appx. 116, 118 (3d Cir. 2017) (per curiam) (“Where a plaintiffs conduct clearly indicates that he willfully intends to abandon the case, or where the plaintiffs 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) (“[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.” (citing cases)).