BALAS v. STANISH et al

Filing 8

MEMORANDUM AND/OR OPINION ORDER THAT LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED PURSUANT TO 28 U.S.C. § 1915. JOHN BALAS, ALSO KNOWN AS MICHAEL JOHN BALAS, #NH7601, 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 CLERK OF COURT IS DIRECTED TO SEND A COPY OF THIS ORDER TO THE SUPERINTENDENT OF STATE CORRECTIONAL INSTITUTION MERCER. THE COMPLAINT IS DEEMED FILED. THE COMPLAINT IS DISMISSED WITH OUT PREJUDICE FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(E)(2)(B)(II) FOR THE REASONS STATED IN THE COURTS MEMORANDUM. BALAS MAY FILE AN AMENDED COMPLAINT WITHIN THIRTY (30) DAYS OF THE DATE OF THIS ORDER. UPON THE FILING OF AN A MENDED COMPLAINT, THE CLERK SHALL NOT MAKE SERVICE UNTIL SO ORDERED BY THE COURT. THE CLERK OF COURT IS DIRECTED TO SEND BALAS A BLANK COPY OF THE COURTS FORM COMPLAINT FOR A PRISONER FILING A CIVIL RIGHTS ACTION BEARING THE ABOVE CIVIL ACTION NUMBER. BALAS SHOULD USE THIS FORM TO FILE HIS AMENDED COMPLAINT IF HE CHOOSES TO DO SO, ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 2/16/21. 2/16/21 ENTERED AND COPIES OF ORDER AND FORMS NOT MAILED TO PRO SE AND E-MAILED TO SUPT. SCI MERCER.(jpd, )

Case 2:20-cv-05386-ER Document 8 Filed 02/16/21 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOHN BALAS,
Plaintiff,
v.
DR. STANISH, et al.,
Defendants.

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CIVIL ACTION NO. 20-CV-5386

ORDER
AND NOW, this 16th day of February, 2021, upon consideration of Plaintiff John
Balas’s Application 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.

John Balas, also known as Michael John Balas, #NH7601, 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 State Correctional Institution – Mercer or other
appropriate official to assess an initial filing fee of 20% of the greater of (a) the average monthly
deposits to Balas’s inmate account; or (b) the average monthly balance in Balas’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 Balas’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 Balas’s inmate account until the fees
are paid. Each payment shall refer to the docket number for this case.

Case 2:20-cv-05386-ER Document 8 Filed 02/16/21 Page 2 of 4

3.

The Clerk of Court is directed to SEND a copy of this Order to the

Superintendent of State Correctional Institution – Mercer.
4.

The Complaint is DEEMED filed.

5.

The 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.
6.

Balas may file an amended complaint within thirty (30) days of the date of this

Order. 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 Balas’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, Balas 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.
7.

The Clerk of Court is DIRECTED to send Balas a blank copy of the Court’s

form complaint for a prisoner filing a civil rights action bearing the above civil action number.
Balas should use this form to file his amended complaint if he chooses to do so. 1
8.

If Balas 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

This form is available on the Court’s website at
http://www.paed.uscourts.gov/documents2/forms/forms-pro-se.
1

Case 2:20-cv-05386-ER Document 8 Filed 02/16/21 Page 3 of 4

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 Balas fails to file any response to this Order, the Court will conclude that

Balas intends to stand on his 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

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. 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)).

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inferred from inaction after issuance of an order directing him to take action to cure a defective
complaint).
BY THE COURT:
/s/ Eduardo C. Robreno
EDUARDO C. ROBRENO,

J.