IN RE: BILLY GOWANS JR.

• Court: District Court, E.D. Pennsylvania
• Decided: February 28, 2025
• Docket: 2:24-cv-06169
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BILLY GOWANS, JR., : Plaintiff, : : v. : CIVIL ACTION NO. 24-CV-6169 : ZACHARY AXSOM, et al., : Defendants. :

ORDER AND NOW, this 28th day of February, 2025, upon consideration of Plaintiff Billy Gowans, Jr.’s pro se Amended Complaint (ECF No. 9), and Motion for Leave to Proceed In Forma Pauperis (ECF No. 13), it is ORDERED that: 1. Leave to proceed in forma pauperis is GRANTED pursuant to 28 U.S.C. § 1915. 2. The Amended Complaint is DISMISSED WITHOUT PREJUDICE for the reasons stated in the Court’s Memorandum. 3. Gowans may file a second amended complaint within thirty (30) days of the date of this Order only as to claims brought on his own behalf. Any second 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 Gowans’s claims against each defendant. The second amended complaint must also provide as much identifying information for the defendants as possible, including the Defendant’s first name, last name, and, where relevant, the Defendant’s position or title. The second amended complaint shall be a complete document that does not rely on any other documents or exhibits filed in this case to state a claim. When drafting his second amended complaint, Gowans should be mindful of the Court’s reasons for dismissing the claims in his Amended Complaint as explained in the Court’s Memorandum. 4. Upon the filing of a second amended complaint, the Clerk shall not make service until so ORDERED by the Court.

5. The Clerk of Court is DIRECTED to send Gowans a blank copy of the Court’s form complaint for a non-prisoner filing a civil rights action bearing the above civil action number. Gowans may use this form to file his amended complaint if he chooses to do so. 6. If Gowans 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 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”). 7. If Gowans fails to file any response to this Order, the Court will conclude that Gowans 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/ John Milton Younge JOHN M. YOUNGE, 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.”); 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)).