HOWARD v. DEPARTMENT OF CORRECTIONS et al

Filing 8

ORDER THAT 1 LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED PURSUANT TO 28 U.S.C. § 1915. LEON J. HOWARD, #BH-2734, SHALL PAY THE FULL FILING FEE OF $350 IN INSTALLMENTS, PURSUANT TO 28 U.S.C. § 1915(B), REGARDLESS OF THE OUTCOME OF T HIS CASE; ETC. AS HEREIN. THE CLERK OF COURT IS DIRECTED TO SEND A COPY OF THIS ORDER TO THE SUPERINTENDENT OF SCI PHOENIX. THE COMPLAINT IS DEEMED FILED. THE COMPLAINT IS DISMISSED IN PART WITH PREJUDICE AND IN PART WITHOUT PREJUDICE FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(E)(2)(B)(II) FOR THE REASONS STATED IN THE COURTS MEMORANDUM AS FOLLOWS:; ETC. AS HEREIN. HOWARD MAY FILE AN AMENDED COMPLAINT WITHIN THIRTY (30) DAYS OF THE DATE OF THIS ORDER TO ATTEMPT TO CURE THE DE FECTS IDENTIFIED BY THE COURT IN THE CLAIMS DISMISSED WITHOUT PREJUDICE; ETC. AS HEREIN. THE CLERK OF COURT IS DIRECTED TO SEND HOWARD A BLANK COPY OF THE COURTS FORM COMPLAINT FOR A PRISONER FILING A CIVIL RIGHTS ACTION BEARING THE ABOVE CIVIL ACTIO N NUMBER. THE MOTION FOR APPOINTMENT OF COUNSEL (ECF NO. 3 ) AND MOTION FOR PRELIMINARY INJUNCTION (ECF NO. 6 ) ARE DENIED; ETC. AS HEREIN. SIGNED BY DISTRICT JUDGE JEFFREY L. SCHMEHL ON 5/9/24. 5/9/24 ENTERED AND COPIES NOT MAILED TO PRO SE ALONG WITH A BLANK COPY OF THE COURTS FORM COMPLAINT FOR A PRISONER FILING A CIVIL RIGHTS ACTION AND E-MAILED TO THE SUPERINTENDENT OF SCI PHOENIX.(mas)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LEON J. HOWARD,
Plaintiff,
v.
DEPARTMENT OF
CORRECTIONS, et al.
Defendants.

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CIVIL ACTION NO. 24-CV-0633

ORDER
AND NOW, this 9th day of May, 2024, upon consideration of Plaintiff Leon J. Howard’s
Motion to Proceed In Forma Pauperis (ECF No. 1), his Prisoner Trust Fund Account Statement
(ECF No. 4), his pro se Complaint (ECF No. 2), his Motion for Appointment of Counsel (ECF
No. 3), and his Motion for Preliminary Injunction (ECF No. 6), it is ORDERED that:
1.

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

2.

Leon J. Howard, #BH-2734, 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 Howard’s inmate account; or (b) the average
monthly balance in Howard’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 Howard’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 Howard’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.

The Complaint is DISMISSED IN PART WITH PREJUDICE AND IN PART

WITHOUT PREJUDICE for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)
for the reasons stated in the Court’s Memorandum as follows:
a. The following claims are DISMISSED WITH PREJUDICE: (1) all § 1983
claims against the Department of Corrections; (2) the official capacity claims
against the individually-named DOC Defendants (Kevin Sorber, Mandy
Sipple, and Brittany Huner), except those for injunctive relief; and (3) the
claims asserted under Title II of the Americans with Disabilities Act (“ADA”)
and Section 504 of the Rehabilitation Act (“RA”) against the individuallynamed DOC Defendants, Sorber, Sipple, and Huner.
b. The following claims are DISMISSED WITHOUT PREJUDICE: (1) the
official capacity claims seeking injunctive relief and the individual capacity
§ 1983 claims against Sorber, Sipple, and Huner; (2) all ADA and RA claims
against the Department of Corrections; and (3) all state law negligence claims.
6.

Howard 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. Howard 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

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identifying them in the body of the amended complaint and shall state the basis for Howard’s
claims against each defendant. If Howard files an amended complaint, his 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, Howard 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.
7.

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

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

If Howard 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”).

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9.

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

Howard intends to stand on his Complaint and will issue a final order dismissing this case. 1 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).
10.

The Motion for Appointment of Counsel (ECF No. 3) and Motion for Preliminary

Injunction (ECF No. 6) are DENIED.
BY THE COURT:

/s/ Jeffrey L. Schmehl
JEFFREY L. SCHMEHL, J.

1

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 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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