BOWEN v. LEHIGH COUNTY JAIL et al
Filing
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ORDER THAT UPON CONSIDERATION OF PLAINTIFF NIGEL ANTHONY BOWENS AMENDED COMPLAINT (ECF NO. 7), IT IS ORDERED THAT: THE AMENDED COMPLAINT IS DISMISSED WITHOUT PREJUDICE FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(E)(2)(B)(II) FOR TH E REASONS STATED IN THE COURTS MEMORANDUM. BOWEN MAY FILE A SECOND AMENDED COMPLAINT WITHIN THIRTY (30) DAYS OF THE DATE OF THIS ORDER. THE CLERK SHALL NOT MAKE SERVICE UNTIL SO ORDERED BY THE COURT. THE CLERK OF COURT IS DIRECTED TO SEND BOWEN A BLA NK COPY OF THE COURTS FORM COMPLAINT FOR A PRISONER FILING A CIVIL RIGHTS ACTION BEARING THE ABOVE CIVIL ACTION NUMBER. BOWEN MAY USE THIS FORM TO FILE HIS SECOND AMENDED COMPLAINT IF HE CHOOSES TO DO SO. SIGNED BY DISTRICT JUDGE GERALD J. PAPPERT ON 1/29/25. 1/29/25 ENTERED AND COPIES MAILED TO PRO SE.(bw)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
NIGEL ANTHONY BOWEN,
Plaintiff,
v.
LEHIGH COUNTY JAIL, et al.,
Defendants.
:
:
:
:
:
:
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CIVIL ACTION NO. 24-CV-5534
ORDER
AND NOW, this 29th day of January, 2025, upon consideration of Plaintiff Nigel
Anthony Bowen’s Amended Complaint (ECF No. 7), it is ORDERED that:
1.
The Amended Complaint is DISMISSED 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.
2.
Bowen may file a second amended complaint within thirty (30) days of the
date of this Order. Any second amended complaint must identify all defendants in the
caption of the amended complaint in addition to identifying them in the body of the
second amended complaint and shall clearly and completely state the basis for Bowen’s
claims against each defendant. The second amended complaint shall be a complete
document that does not rely on the initial Complaint, Amended Complaint or other
papers filed in this case to state a claim. When drafting his second amended complaint,
Bowen should be mindful of the Court’s reasons for dismissing his Amended Complaint
as explained in the Court’s Memorandum. No allegations apart from those in the
second amended complaint will be considered in determining whether Bowen has
stated a claim for purposes of proceeding past screening. Upon the filing of a second
amended complaint, the Clerk shall not make service until so ORDERED by the Court.
3.
The Clerk of Court is DIRECTED to send Bowen a blank copy of the
Court’s form complaint for a prisoner filing a civil rights action bearing the above civil
action number. Bowen may use this form to file his second amended complaint if he
chooses to do so.
4.
If Bowen does not wish to amend 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 claims” when the district
court “expressly warned plaintiffs that failure to replead the remaining claims . . .
would result in the dismissal of those claims”).
5.
If Bowen fails to file any response to this Order, the Court will conclude
that Bowen intends to stand on his Amended Complaint and will issue a final order
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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).
BY THE COURT:
/s/ Gerald J. Pappert
Gerald J. Pappert, 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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