MARINELLI v. SORBER et al

Filing 7

MEMORANDUM AND ORDER THAT LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED AS OUTLINED HEREIN. CLERK OF COURT IS DIRECTED TO SEND A COPY OF THIS ORDER TO SUPERINTENDENT OF SCI PHOENIX. COMPLAINT IS DEEMED FILED. COMPLAINT IS DISMISSED AS OUTLINED HEREI N. MARINELLI MAY AMENDED COMPLAINT WITHIN 30 DAYS OF THIS ORDER. CLERK OF COURT IS DIRECTED TO SEND MARINELLI A BLANK COPY OF THE COURTS FORM COMPLAINT FOR FILING A PRISONER CIVIL RIGHTS ACTION BEARING CASE NUMBER. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 9/15/22. 9/15/22 ENTERED AND COPIES MAILED TO PRO SE. *1983 COMPLAINT MAILED TO MARINELLI*(rf, )

Case 2:22-cv-02401-MMB Document 7 Filed 09/15/22 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
NICHOLAS MARINELLI,
Plaintiff,

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v.
SUPERINTENDENT
JAIME SORBER, et al.,
Defendants.

CIVIL ACTION NO. 22-CV-2401

ORDER
AND NOW, this 15th day of September, 2022, upon consideration of Plaintiff Nicholas
Marinelli’s Motion to Proceed In Forma Pauperis (ECF No. 1), his Prisoner Trust Fund Account
Statement (ECF No. 3), his pro se Complaint (ECF No. 2), and his Motion for Appointment of
Counsel (ECF No. 5), it is ORDERED that:
1.

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

2.

Nicholas Marinelli, #FT-2046, 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 Marinelli’s inmate account; or (b) the
average monthly balance in Marinelli’s inmate account for the six-month period immediately
preceding the filing of this case. The Superintendent of SCI Phoenix 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 Marinelli’s inmate trust fund account exceeds $10.00, the Superintendent of SCI
Phoenix or other appropriate official shall forward payments to the Clerk of Court equaling 20%

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of the preceding month’s income credited to Marinelli’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 send a copy of this Order to the

Superintendent of SCI Phoenix.
4.

The Complaint is DEEMED filed.

5.

For the reasons discussed in the Court’s Memorandum, Marinelli’s Complaint is

DISMISSED as follows:
a.

The official capacity claims for damages are DISMISSED WITH

PREJUDICE.
b.

All remaining federal claims are DISMISSED WITHOUT PREJUDICE

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

All state law claims are DISMISSED WITHOUT PREJUDICE for lack

of subject matter jurisdiction.
6.

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

this Order to attempt to cure the defects identified by the Court in the claims dismissed without
prejudice. Marinelli may not reassert a claim already dismissed with 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 Marinelli’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, Marinelli 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.

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7.

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

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

If Marinelli 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” after being warned of
consequences of dismissal).
9.

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

Marinelli intends to stand on his Complaint and will issue a final order dismissing this case. 2 See

1

This form is available on the Court’s website at
http://www.paed.uscourts.gov/documents/forms/frmc1983f.pdf.
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
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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).
10.

The Motion for Appointment of Counsel (ECF No. 5) is DENIED.
BY THE COURT:
/s/ MICHAEL M. BAYLSON
MICHAEL M. BAYLSON, J.

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.”).
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