PAYNE v. DEPARTMENT OF VETERANS AFFAIRS INSURANCE CENTER

Filing 9

ORDER THAT LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED. THE AMENDED COMPLAINT IS DEEMED FILED. THE AMENDED COMPLAINT IS DISMISSED WITHOUT PREJUDICE. THE CLERK OF COURT IS DIRECTED TO SEND PAYNE 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. SIGNED BY CHIEF JUDGE JUAN R. SANCHEZ ON 11/15/23. 11/15/23 ENTERED AND COPIES NOT MAILED TO PRO SE.(mbh)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
EDWARD HAYWOOD PAYNE, JR.,
Plaintiff,
v.
DEPARTMENT OF VETERAN
AFFAIRS INSURANCE CENTER,
Defendant.

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CIVIL ACTION NO. 23-CV-3460

ORDER
AND NOW, this 15th day of November, 2023, upon consideration of Plaintiff Edward
Haywood Payne, Jr.’s Motion to Proceed In Forma Pauperis (ECF No. 6), and Amended
Complaint (ECF No. 7) it is ORDERED that:
1.

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

2.

The Amended Complaint is DEEMED filed.

3.

The Amended Complaint is DISMISSED WITHOUT PREJUDICE for the

reasons stated in the Court’s Memorandum, as follows:
a. The Title VII claims are DISMISSED WITHOUT PREJUDICE.
b. The Section 1981 and PHRA claims are DISMISSED WITHOUT

PREJUDICE for lack of subject matter jurisdiction.
4.

Payne may file a second amended complaint within thirty (30) days of the date of

this Order to address the defects the Court has noted as the Title VII claims only. 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 Payne’s claims against each defendant. The second amended complaint shall be a
complete document that does not rely on the initial Complaint, the Amended Complaint, or other

papers filed in this case to state a claim. When drafting his second amended complaint, Payne
should be mindful of the Court’s reasons for dismissing the claims in his Amended Complaint as
explained in the Court’s Memorandum. Payne should not attempt to reassert claims under
Section 1981 or the PHRA. Upon the filing of a second amended complaint, the Clerk shall not
make service until so ORDERED by the Court.
5.

The Clerk of Court is DIRECTED to send Payne 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. Payne may use this form
to file his second amended complaint if he chooses to do so.1
6.

If Payne 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

This form is available on the Court’s website at
https://www.paed.uscourts.gov/sites/paed/files/documents/forms/frmcempf.pdf.
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claims” when the district court “expressly warned plaintiffs that failure to replead the remaining
claims . . . would result in the dismissal of those claims”).
7.

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

Payne intends to stand on his Amended 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 inferred from inaction after issuance of an order directing him to take action to
cure a defective complaint).
BY THE COURT:

/s/ Juan R. Sánchez
JUAN R. SÁNCHEZ, C.J.

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
her 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 her 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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