DUBOSE v. FDC PHILA (WARDEN) et al
MEMORANDUM ORDER THAT ZUMAR H. DUBOSES MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED. ZUMAR H. DUBOSE, #20472-509, SHALL PAY THE FULL FILING FEE OF $350 IN INSTALLMENTS REGARDLESS OF THE OUTCOME OF THIS CASE. THE CLERK OF COURT IS DIR ECTED TO SEND A COPY OF THIS ORDER TO THE WARDEN OF THE FEDERAL DETENTION CENTER PHILADELPHIA. THE COMPLAINT IS DEEMED FILED. THE COMPLAINT IS DISMISSED, IN PART, WITH PREJUDICE, AND DISMIISED, IN PART, WITHOUT PREJUDICE AS OUTLINED HEREIN. DUBOSE MA Y FILE AN AMENDED COMPLAINT WITHIN THIRTY (30) DAYS OF THE DATE OF THIS ORDER ONLY AS TO THE CLAIMS AGAINST THE FDC WARDEN THAT THE COURT HAS DISMISSED WITHOUT PREJUDICE. UPON THE FILING OF AN AMENDED COMPLAINT, THE CLERK SHALL NOT MAKE SERVICE UNTIL SO ORDERED BY THE COURT. THE CLERK OF COURT IS DIRECTED TO SEND DUBOSE A BLANK COPY OF THE COURTS FORM COMPLAINT FOR A PRISONER FILING A CIVIL RIGHTS ACTION BEARING THE ABOVE CIVIL ACTION NUMBER. SIGNED BY HONORABLE NITZA I QUINONES ALEJANDRO ON 11/13/23. 11/13/23 ENTERED AND COPIES NOT MAILED TO PRO SE.(amas)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ZUMAR H. DUBOSE
FDC PHILA (WARDEN), et al.,
AND NOW, this 13th day of November, 2023, upon consideration of Plaintiff Zumar H.
DuBose’s Motion to Proceed In Forma Pauperis (ECF No. 1), his Prisoner Trust Fund Account
Statement (ECF No. 2), and his pro se Complaint (ECF No. 3), it is hereby ORDERED that:
Zumar H. DuBose’s motion for leave to proceed in forma pauperis is GRANTED
pursuant to 28 U.S.C. § 1915.
Zumar H. DuBose, #20472-509, 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 Federal Detention Center Philadelphia or other appropriate official to assess an
initial filing fee of 20% of the greater of (a) the average monthly deposits to DuBose’s inmate
account; or (b) the average monthly balance in DuBose’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
DuBose’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 month’s income credited
to DuBose’s inmate account until the fees are paid. Each payment shall refer to the docket number
for this case.
The Clerk of Court is DIRECTED to send a copy of this Order to the Warden of
the Federal Detention Center Philadelphia.
The Complaint is DEEMED filed.
The Complaint is DISMISSED, in part, with prejudice, and DISMIISED, in part,
without prejudice, for the reasons set forth in the Court’s Memorandum:
The following claims are DISMISSED, with prejudice, pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim: (1) all claims against the BOP, Marshal’s
Service and U.S. Attorney General; and (2) the official capacity claims against the FDC Warden;
and (3) any claims against the FDC Warden pursuant to 18 U.S.C. § 4042.
DuBose’s remaining Bivens individual capacity claims against the FDC
Warden based on DuBose’s conditions of confinement are DISMISSED, without prejudice,
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.
DuBose may file an amended complaint within thirty (30) days of the date of this
Order only as to the claims against the FDC Warden that the Court has dismissed without prejudice.
DuBose may not attempt to reassert any 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 DuBose’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, DuBose 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.
The Clerk of Court is DIRECTED to send DuBose a blank copy of the Court’s
form complaint for a prisoner filing a civil rights action bearing the above civil action number.
DuBose may use this form to file his amended complaint if he chooses to do so. 1
If DuBose 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”).
If DuBose fails to file any response to this Order, the Court will conclude that
DuBose 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
This form is available on the Court’s website at
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
inferred from inaction after issuance of an order directing him to take action to cure a defective
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
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