HARRISON-EL v. DR. DOE et al

Filing 9

ORDER THAT THE CLERK OF COURT IS DIRECTED TO AMEND THE DOCKET TO REFLECT THAT HARRISON-EL IS CURRENTLY HOUSED AT SCI SMITHFIELD UNDER INMATE NUMBER QQ1519. LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED. THE CLERK OF COURT IS DIRECTED TO SEND A COPY OF THIS ORDER TO THE SUPERINTENDENT OF SCI SMITHFIELD. THE COMPLAINT IS DEEMED FILED. THE COMPLAINT IS DISMISSED IN PART WITH PREJUDICE AND IN PART WITHOUT PREJUDICE, ETC. THE CLERK OF COURT IS DIRECTED TO SEND HARRISON-EL A BLANK CO PY OF THE COURT'S FORM COMPLAINT FOR A PRISONER FILING A CIVIL RIGHTS ACTION BEARING THE ABOVE CIVIL ACTION NUMBER. HARRISON-EL MAY USE THIS FORM TO FILE HIS AMENDED COMPLAINT IF HE CHOOSES TO DO SO, ETC. THE CLERK OF COURT IS DIRECTED TO SEPARATELY DOCKET PAGES 1 AND 2 OF ECF NO. 7 AS "PLAINTIFF'S MOTION TO RECUSE." THE MOTION TO RECUSE IS DENIED. SIGNED BY DISTRICT JUDGE JOHN M. GALLAGHER ON 3/1/24. 3/1/24 ENTERED AND COPIES (NOT MAILED TO PRO SE). (er)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ALI A. HARRISON-EL,
Plaintiff,
v.
DR. JANE DOE, et al.,
Defendants.

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CIVIL ACTION NO. 23-CV-4725

ORDER
AND NOW, this 1st day of March, 2024, upon consideration of Plaintiff Ali A. HarrisonEl’s Motion to Proceed In Forma Pauperis and Prisoner Trust Fund Account Statement (ECF
Nos. 1, 7), pro se Complaint (ECF No. 2), and Motion to Recuse, it is ORDERED that:
1.

The Clerk of Court is DIRECTED to AMEND the docket to reflect that

Harrison-El is currently housed at SCI Smithfield under inmate number QQ1519.
2.

Leave to proceed in forma pauperis is GRANTED.

3.

Ali A. Harrison-El, #QQ1519, 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 Smithfield or other appropriate official to assess an initial filing fee of
20% of the greater of (a) the average monthly deposits to Harrison-El’s inmate account; or (b)
the average monthly balance in Harrison-El’s inmate account for the six-month period
immediately preceding the filing of this case. The Superintendent 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 Harrison-El’s inmate trust fund account exceeds $10.00, the Superintendent or other
appropriate official shall forward payments to the Clerk of Court equaling 20% of the preceding

month’s income credited to Harrison-El’s inmate account until the fees are paid. Each payment
shall refer to the docket number for this case.
4.

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

Superintendent of SCI Smithfield.
5.

The Complaint is DEEMED filed.

6.

The Complaint is DISMISSED IN PART WITH PREJUDICE AND IN PART

WITHOUT PREJUDICE for for the reasons stated in the Court’s Memorandum as follows:
a. Harrison-El’s official capacity claims against Dr. Jane Doe, Nurse Jane Doe,
and Nurse Sofia are DISMISSED WITH PREJUDICE.
b. Harrison-El’s claim seeking release from prison and expungement of his
criminal record is DISMISSED WITHOUT PREJUDICE to him
proceeding on a petition for a writ of habeas corpus.
c. Harrison-El’s constitutional claims are DISMISSED WITHOUT
PREJUDICE failure to state a claim pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii). He will be granted leave to amend these claims.
d. Harrison-El’s state law claims are DISMISSED WITHOUT PREJUDICE
for lack of subject matter jurisdiction. He will be granted leave to amend
these claims.
7.

Harrison-El 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 Harrison-El’s claims against each defendant. The amended complaint must also
provide as much identifying information for the defendants as possible. Harrison-El may refer to
a defendant by last name only if that is the only identifying information possessed. If Harrison2

El wishes to name individuals for whom he does not have any identifying information, he may
refer to those individuals as John Doe #1, John Doe #2, etc. 1 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, Harrison-El 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.
8.

The Clerk of Court is DIRECTED to send Harrison-El a blank copy of the

Court’s form complaint for a prisoner filing a civil rights action bearing the above civil action
number. Harrison-El may use this form to file his amended complaint if he chooses to do so.
9.

If Harrison-El 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 Harrison-El’s excessive force and official capacity claims. 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

1

Without the name of at least one individual or entity, however, the Court may be unable to
direct service of any amended complaint that Harrison-El may file.
3

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 Harrison-El fails to file any response to this Order, the Court will conclude that

Harrison-El intends to stand on his Complaint and will issue a final order dismissing his
excessive force and official capacity claims. 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).
11.

The Clerk of Court is DIRECTED to separately docket pages 1 and 2 of ECF No.

7 as “Plaintiff’’s Motion to Recuse.” The Motion to Recuse is DENIED.

BY THE COURT:
/s/ John M. Gallagher
JOHN M. GALLAGHER, 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)).
4