CLARK v. THE WARDEN AND ALL PRISON GUARDS et al

Filing 7

MEMORANDUM ORDER THAT LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED. LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED. DORIAN CLARK, ALSO KNOWN AS STEVEN JACOBS, SHALL PAY THE FULL FILING FEE OF $350 IN INSTALLMENTS REGARDLESS OF THE OUTCOME OF THI S CASE. THE CLERK OF COURT IS DIRECTED TO UPDATE THE DOCKET TO REFLECT CLARK'S CURRENT ADDRESS AT THE PHILADELPHIA INDUSTRIAL CORRECTIONAL CENTER. THE CLERK OF COURT IS DIRECTED TO SEND A COPY OF THIS ORDER TO THE WARDEN OF THE PHILADELPHIA INDU STRIAL CORRECTIONAL CENTER. THE COMPLAINT IS DEEMED FILED. THE COMPLAINT IS DISMISSED FOR FAILURE TO STATE A CLAIM AS OUTLINED HEREIN. CLARK MAY FILE AN AMENDED COMPLAINT WITHIN 30 DAYS. UPON THE FILING OF AN AMENDED COMPLAINT THE CLERK SHALL NOT MAK E SERVICE UNTIL SO OREDERED. THE CLERK IS DIRECTED TO SEND CLARK A BLANK COPY OF THIS COURT'S FORM COMPLAINT FOR A PRISONER FILING A CIVIL RIGHTS ACTION. FURTHER INFORMATION OUTLINED HEREIN. SIGNED BY HONORABLE NITZA I QUINONES ALEJANDRO ON 5/5/22. 5/6/22 ENTERED AND COPIES NOT MAILED TO PRO SE.(amas)

Case 2:21-cv-05498-NIQA Document 7 Filed 05/05/22 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DORIAN CLARK,
a/k/a Steven Jacobs,
Plaintiff
v.
THE WARDEN AND ALL PRISON
GUARDS, et al.,
Defendants

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CIVIL ACTION NO. 21-CV-5498

ORDER
AND NOW, this 5th day of May 2022, upon consideration of Plaintiff Dorian Clark’s
Motion for Leave 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 hereby ORDERED that:
1.

Leave to proceed in forma pauperis is GRANTED pursuant to 28 U.S.C. § 1915.

2.

Dorian Clark, also known as Steven Jacobs, #807486, 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 Warden of the Philadelphia Industrial Correctional Center or other
appropriate official to assess an initial filing fee of 20% of the greater of (a) the average monthly
deposits to Clark’s inmate account; or (b) the average monthly balance in Clark’s inmate account
for the six-month period immediately preceding the filing of this case. The Warden 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 Clark’s inmate trust fund account exceeds $10.00, the Warden or other
appropriate official shall forward payments to the Clerk of Court equaling 20% of the preceding

Case 2:21-cv-05498-NIQA Document 7 Filed 05/05/22 Page 2 of 4

month’s income credited to Clark’s inmate account until the fees are paid. Each payment shall
refer to the docket number for this case.
3.

The Clerk of Court is DIRECTED to update the docket to reflect Clark’s current

address at the Philadelphia Industrial Correctional Center.
4.

The Clerk of Court is DIRECTED to send a copy of this Order to the Warden of

the Philadelphia Industrial Correctional Center.
5.

The Complaint is DEEMED filed.

6.

For the reasons stated in the Court’s Memorandum, the Complaint is DISMISSED

for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) as follows:
a.

Clark’s 42 U.S.C. § 1983 claims based on alleged violations of prison

policies and procedures, and his claims against the judges of the Criminal Justice
Center, are DISMISSED WITH PREJUDICE.
b.

Clark’s remaining 42 U.S.C. § 1983 claims are DISMISSED WITHOUT

PREJUDICE.
7.

Clark 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 Clark’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, Clark should be mindful of the Court’s reasons for
dismissing the claims in his initial Complaint as explained in the Court’s Memorandum. Clark is
not permitted to reassert claims that have been dismissed with prejudice or to rename defendants

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who have been dismissed with prejudice. Upon the filing of an amended complaint, the Clerk
shall not make service until so ORDERED by the Court.
8.

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

complaint for a prisoner filing a civil rights action bearing the above civil action number. Clark
may use this form to file his amended complaint if he chooses to do so. 1
9.

If Clark 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 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”).
10.

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

Clark 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
1

This form is available on the Court’s website at
http://www.paed.uscourts.gov/documents/forms/frmc1983f.pdf.
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

2

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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/ Nitza I. Quiñones Alejandro
NITZA I. QUIÑONES ALEJANDRO
Judge, United States District Court

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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