BROWN v. COOPER

FORI NT HTEH EE AUSNTIETREND DSTISATTREISC DT IOSTFR PIECNTN CSOYULVRAT NIA

RAYMOND BROWN,

Plaintiff,

v. CIVIL ACTION NO. 22-2953

COOPER, et al.,

Defendants.

ORDER

AND NOW, this 10th day of July 2023, upon consideration of Plaintiff’s pro se

Amended Complaint [Doc. No. 20] and Defendants’ Motion to Dismiss [Doc. No. 22], and for

the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED that

Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint [Doc. No. 22] is GRANTED as

follows:

1. Plaintiff’s Eighth and Fourteenth Amendment claims in his Amended Complaint

[Doc. No. 20] are DISMISSED with prejudice.

2. Plaintiff’s First Amendment retaliation claim in his Amended Complaint [Doc. No.

20] is DISMISSED without prejudice. Plaintiff may file a Second Amended

Complaint as to his First Amendment retaliation claim no later than July 31, 2023.

Any Second Amended Complaint must state the basis for Plaintiff’s claims against

each Defendant, specifically assert each Defendant’s personal involvement in the

alleged misconduct, and sufficiently plead the three elements of a prima facie

retaliation claim. The Second Amended Complaint shall be a complete document that

does not rely on the Amended Complaint or other papers filed in this case to state a

claim. Should Plaintiff choose to draft a Second Amended Complaint, he must be

mindful of the Court’s reasons for dismissing the claims in his Amended Complaint

as explained in the accompanying Memorandum Opinion.

3. If Plaintiff 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 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.1

4. If Plaintiff fails to file any response to this Order, the Court will conclude that

Plaintiff intends to stand on his Amended Complaint and will issue a final order

dismissing this case.2

It is so ORDERED.

BY THE COURT:

/s/ Cynthia M. Rufe

________________________

CYNTHIA M. RUFE, J.

1 See Weber v. McGrogan, 939 F.3d 232, 241 (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.”).

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). The six-

factor test announced in Poulis v. State Farm Fire & Cas. 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 id. 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). 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 n.2 (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. Accts. 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)).