THOMPSON v. WETZEL

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

BRIAN THOMPSON, : Plaintiff, : : v. : No. 20-cv-3550 : JOHN WETZEL, et al., : Defendants. :

O R D E R AND NOW, this 17th day of December, 2020, upon consideration of Plaintiff Brian Thompson’s Motion to Proceed In Forma Pauperis (ECF No. 4), his Prisoner Trust Fund Account Statement (ECF No. 5), and his pro se Complaint (ECF No. 1), it is ORDERED that: 1. Leave to proceed in forma pauperis is GRANTED pursuant to 28 U.S.C. § 1915. 2. Brian Thompson, #JQ-0773, 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-Phoenix or other appropriate official to assess an initial filing fee of 20% of the greater of (a) the average monthly deposits to Thompson’s inmate account; or (b) the average monthly balance in Thompson’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 Thompson’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 Thompson’s inmate account until the fees are paid. Each payment shall refer to the docket number of this case. 3. The Clerk of Court is directed to SEND a copy of this Order to the Superintendent of SCI-Phoenix. 4. The Complaint is DEEMED filed. 5. The Complaint is DISMISSED IN PART WITH PREJUDICE AND IN PART

WITHOUT PREJUDICE for the reasons stated in the Court’s Memorandum as follows: a. The Eighth Amendment, Fourth Amendment, and Fourteenth Amendment claims, and all official capacity claims, are DISMISSED WITH PREJUDICE. b. The First Amendment claim and supervisor liability/failure to train claim are DISMISSED WITHOUT PREJUDICE and with leave to re-file in an amended complaint. 6. Thompson may file an amended complaint within thirty (30) days of the date of this Order only as to those claims 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 Thompson’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, Thompson should be mindful of the Court’s reasons for dismissing the claims in his 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. 7. The Clerk of Court is DIRECTED to send Thompson a blank copy of the Court’s form complaint for a prisoner filing a civil rights action bearing the above civil action number. Thompson may use this form to file his amended complaint if he chooses to do so. 8. If Thompson does not wish to file an amended complaint and instead intends to stand on his original Complaint, 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”). 9. If Thompson fails to file any response to this Order, the Court will conclude that

Thompson intends to stand on his Complaint and will issue a final order dismissing this case.1

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.”). 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/ Joseph F. Leeson, Jr.__________________ JOSEPH F. LEESON, JR. United States District Judge