ADAMES v. PISTRO ( 2021 )

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ELIAS ADAMES, : Plaintiff, : : V. : CIVIL ACTION NO. 21-CV-2855 : KEVIN PISTRO, et al, : Defendants. : ORDER AND NOW, this 29th day of November, 2021, upon consideration of Plaintiff Elias Adames’s Amended Complaint (ECF No. 8) and Letter (ECF No. 7), it is ORDERED that: 1. The Amended Complaint is DISMISSED WITHOUT PREJUDICE for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for the reasons stated in the Court’s Memorandum. 2. Adames 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 Adames’s claims against each defendant by explaining what each defendant did or did not do to violate Adames’s constitutional rights. The second amended complaint shall be a complete document that does not rely on the initial Complaint, Amended Complaint or other papers filed in this case to state a claim. When drafting his second amended complaint, Adames should be mindful of the Court’s reasons for dismissing the claims in his initial Complaint and Amended Complaint as explained in the Court’s Memoranda. Adames should not submit letters to the Court with additional allegations in support of his claims. Rather, he should include all relevant allegations in his second amended complaint. Upon the filing of a second amended complaint, the Clerk shall not make service until so ORDERED by the Court. 3. The Clerk of Court is DIRECTED to send Adames a blank copy of the Court’s form complaint for a prisoner filing a civil rights action bearing the above civil action number. Adames may use this form to file his amended complaint if he chooses to do so.1 4. If Adames does not wish to amend and instead intends to stand on his Amended 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 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”). 5. If Adames fails to file any response to this Order, the Court will conclude that 1 This form is available on the Court’s website at http://www.paed.uscourts.gov/documents/forms/frmc1983f.pdf. Adames intends to stand on his Amended Complaint and will issue a final order dismissing this case.2 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/Petrese B. Tucker PETRESE B. TUCKER, J. 2 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.