ORDER OF 6/3/21 THAT UPON CONSIDERATION OF PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS (ECF NO. 4) AND PRO SE AMENDED COMPLAINT (ECF NO. 5), IT IS ORDERED THAT: LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED PURSUANT TO 28 U.S.C. 1915. THE AM ENDED COMPLAINT IS DEEMED FILED. THE CLERK OF COURT IS DIRECTED TO SUBSTITUTE "UPS 15 E. ORGEON AVE, PHILADELPHIA, PA 19148 FOR "HUMAN RESOURCES DEPARTMENT OF UPS" IN THE CAPTIONED OF THIS CASE. THE AMENDED COMPLAINT IS DISMISSED IN PA RT WITH PREJUDICE AND IN PART WITHOUT PREJUDICE FOR FAILURE TO STATE A CLAIM PURSUAT TO 28 U.S.C. 1915(e)(2)(B)(ii) FOR THE REASONS STATED IN THE COURT'S MEMORANDUM AS FOLLOWS: a. ALL CLAIMS PURSUANT TO TITLE VII, 42 U.S.C. 2000e AGAINST DEFENDA NTS FRONT BOOTH SECURITY AGENT AT UPS AND SECURITY SUPERVISOR FOR UPS ARE DISMISSED WITH PREJUDICE. b. ALL CLAIMS PURSUANT TO TITLE VII, 42 U.S.C. 2000e AGAINST DEFENDANT HUMAN RESOURCES DEPARTMENT FOR UPS, DEEMED TO BE RICE'S EMPLOYER UPS 15. E . OREGON AVENUE, PHILADELPHIA, PA. 19148 ARE DISMISSED WITHOUT PREJUDICE. c. ALL STATE LAW LAW CLAIMS ARE DISMISSED WITHOUT PREJUDICE. RICE IS GIVEN LEAVE TO AMEND WITHIN 30 DAYS OF THE DATE OF THIS ORDER IN THE EVENT HE CAN STATE A PLAUSIBLE BASIS F OR A CLAIM AGAINST AN APPROPRIATE DEFENDANT. 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 BASI S FOR RICE'S CLAIMS AGAINST EACH OTHER. THE SECOND AMENDED COMPLAINT SHALL BE A COMPLETE DOCUMENET THAT DOES NOT RELY ON THE INITIAL COMPLAINT, AMENDED COMPLAINT,OR ANY OTHER PAPERS FILED IN THIS CASE TO STATE A CLAIM. WHEN DRAFTING HIS SECOND A MENDED COMPLAINT, RICE SHOULD BE MINDFUL OF THE COURT'S REASONING FOR DISMISSING THE CLAIMS IN HIS AMENDED COMPLAINT AS EXPLAINED IN THE COURT'S MEMORANDUM. RICE MAY NOT REASSERT A CLAIM THAT HAS ALREADY BEEN DISMISSED WITH PREJUDICE. UPON THE FILING OF A SECOND AMENDED COMPLAINT,THE CLERK SHALL NOT MAKE SERVICE UNTIL SO ORDERD BY THE COURT.THE CLERKOF COURT IS DIRECTED TO SEND RICE A BLANK COPY OF THIS COURT'S CURRENT STANDARD FORM TO BE USED BY A SELF-REPRESENTED LITIGANT FILING AN EMPLOYMENT DISCRIMINATION ACTION BEARING THE ABOVE-CAPTIONED CIVIL ACTION NUMBER. RICE MAY USE THIS FORM TO FILE HIS SECOND AMENDED COMPLAINT IF HE CHOOSES TO DO SO. ETC. SIGNED BY JUDGE: JOSEPH F. LEESON JR ON 6/3/21. 6/3/21 ENTERED AND COPIES E-MAILED. (DT)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
KEVIN K. RICE,
FRONT BOOTH SECURITY
AGENT AT UPS, et al.,
AND NOW, this 3rd day of June, 2021, upon consideration of Plaintiff Kevin Rice’s
Motion to Proceed In Forma Pauperis (ECF No. 4) and his pro se Amended Complaint (ECF
No. 5), it is ORDERED that:
Leave to proceed in forma pauperis is GRANTED pursuant to 28 U.S.C. § 1915.
The Amended Complaint is DEEMED filed.
The Clerk of Court is DIRECTED to substitute “UPS 15 E. Oregon Ave.
Philadelphia, PA 19148” for “Human Resources Department of UPS” in the caption of this case.
The Amended Complaint is DISMISSED IN PART WITH PREJUDICE AND
IN PART 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 as follows:
a. All claims pursuant to Title VII, 42 U.S.C. § 2000e, et seq. against Defendants
Front Booth Security Agent at UPS and Security Supervisor for UPS are
DISMISSED WITH PREJUDICE.
All claims pursuant to Title VII, 42 U.S.C. § 2000e, et seq. against Defendant
Human Resources Department for UPS, deemed to be Rice’s employer UPS
15 E. Oregon Ave. Philadelphia, PA 19148, are DISMISSED WITHOUT
c. All state law claims are DISMISSED WITHOUT PREJUDICE.
Rice is given leave to amend within thirty (30) days of the date of this Order in
the event he can state a plausible basis for a claim against an appropriate defendant. 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 Rice’s claims against each defendant. The second amended complaint shall be a
complete document that does not rely on the initial Complaint, Amended Complaint, or any other
papers filed in this case to state a claim. When drafting his second amended complaint, Rice
should be mindful of the Court’s reasons for dismissing the claims in his Amended Complaint as
explained in the Court’s Memorandum. Rice may not reassert a claim that has already been
dismissed with prejudice. Upon the filing of a second amended complaint, the Clerk shall not
make service until so ORDERED by the Court.
The Clerk of Court is DIRECTED to send Rice blank copy of this
Court’s current standard form to be used by a self-represented litigant filing an employment
discrimination action bearing the above-captioned civil action number. Rice may use this form
to file his second amended complaint if he chooses to do so. This form is also available on the
Court’s website, http://www.paed.uscourts.gov/documents/forms/frmcempf.pdf.
If Rice 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”).
If Rice fails to file any response to this Order, the Court will conclude that
Rice 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/ Joseph F. Leeson, Jr.
JOSEPH F. LEESON, JR.
United States District Judge
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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