HALL v. KENNEY et al, No. 2:2020cv03724 - Document 10 (E.D. Pa. 2020)
Court Description: MEMORANDUM OPINION ORDER THAT LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED. TERRY G. HALL SHALL PAY THE FULL FILING FEE OF $350 IN INSTALLMENTS REGARDLESS OF THE OUTCOME OF THIS CASE. THE COURT DIRECTS THE WARDEN OF CURRAN FROMHOLD CORRECTIONAL FACILITY TO ASSESS AN INITIAL FILING FEE OF 20% AS OUTLINED HEREIN. THE CLERK OF COURT IS DIRECTED TO SEND A COPY OF THIS ORDER TO THE WARDEN OF CURRAN FROMHOLD CORRECTIONAL FACILITY. THE AMENDED COMPLAINT IS DEEMED FILED. THE AMENDED COMPLAINT IS DISMISSED WITHOUT PREJUDICE. HALL MAY FILE A SECOND AMENDED COMPLAINT WITHIN 30 DAYS. THE CLERK OF COURT IS DIRECTED TO SEND HALL A BLANK COPY OF THE COURT'S FORM COMPLAINT FOR A PRISONER FILING A CIVIL RIGHTS ACTION, ETC. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 9/9/20. 9/9/20 ENTERED AND COPIES NOT MAILED TO PRO SE WITH COMPLAINT FORMS; NOT MAILED TO WARDEN; E-MAILED.(amas, )
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HALL v. KENNEY et al Doc. 10 Case 2:20-cv-03724-MSG Document 10 Filed 09/09/20 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA TERRY G. HALL, Plaintiff, v. MAYOR JIM KENNEY, et al., Defendants. : : : : : : : CIVIL ACTION NO. 20-CV-3724 ORDER AND NOW, this 9th day of September, 2020, upon consideration of Plaintiff Terry G. Hall’s Motion to Proceed In Forma Pauperis (ECF No. 4), and his pro se Amended Complaint (ECF No. 5), it is ORDERED that: 1. Leave to proceed in forma pauperis is GRANTED pursuant to 28 U.S.C. § 1915. 2. Terry G. Hall, #615130, 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 Curran Fromhold Correctional Facility or other appropriate official to assess an initial filing fee of 20% of the greater of (a) the average monthly deposits to Hall’s inmate account; or (b) the average monthly balance in Hall’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 Hall’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 Hall’s inmate account until the fees are paid. Each payment shall refer to the docket number for this case. Dockets.Justia.com Case 2:20-cv-03724-MSG Document 10 Filed 09/09/20 Page 2 of 3 3. The Clerk of Court is directed to SEND a copy of this Order to the Warden of Curran Fromhold Correctional Facility. 4. The Amended Complaint is DEEMED filed. 5. The Amended Complaint is DISMISSED WITHOUT PREJUDICE for the reasons stated in the Court’s Memorandum Opinion. 6. Hall may file a second amended complaint within thirty (30) days of the date of this Order. Any second amended complaint must identify all defendants in the caption of the second amended complaint in addition to identifying them in the body of the second amended complaint and shall state the basis for Hall’s claims against each defendant. The second amended complaint shall be a complete document that does not rely on the initial Complaint, the Amended Complaint or other papers filed in this case to state a claim. When drafting his second amended complaint, Hall should be mindful of the Court’s reasons for dismissing the claims in his Amended Complaint as explained in the Court’s Memorandum. Upon the filing of a second amended complaint, the Clerk shall not make service until so ORDERED by the Court. 7. The Clerk of Court is DIRECTED to send Hall a blank copy of the Court’s form complaint for a prisoner filing a civil rights action bearing the above civil action number. Hall may use this form to file his second amended complaint if he chooses to do so. 8. If Hall does not wish to file a second amended complaint and instead intends to stand on his Amended 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 Amended 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 Case 2:20-cv-03724-MSG Document 10 Filed 09/09/20 Page 3 of 3 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”). 9. If Hall fails to file any response to this Order, the Court will conclude that Hall intends to stand on his Amended Complaint and will issue a final order dismissing this case. 1 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). BY THE COURT: /s/ Mitchell S. Goldberg MITCHELL S. GOLDBERG, J. 1 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 his complaint. See Weber, 939 F.3d at 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 F. App’x 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 his complaint, leaving the case without an operative pleading. See Dickens v. Danberg, 700 F. App’x 116, 118 (3d Cir. 2017) (per curiam) (“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.”).
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