FREEMAN v. EMPLOYEES OF THE PENNSYLVANIA BOARD OF PROBATION AND PAROLE

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BRIAN KELLY FREEMAN, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 24-CV-1270

:

EMPLOYEES OF THE :

PENNSYLVANIA BOARD OF :

PROBATION AND PAROLE, et al., :

Defendants. :

ORDER

AND NOW, this 17th day of May, 2024, upon consideration of Plaintiff Brian

Kelly Freeman’s Motion to Proceed In Forma Pauperis (ECF No. 1), Prisoner Trust

Fund Account Statement (ECF No. 4), and Complaint (ECF No. 2), it is ORDERED

that:

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

1915.

2. Brian Kelly Freeman, #KN-0816, 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 Greene or other appropriate official to

assess an initial filing fee of 20% of the greater of (a) the average monthly deposits to

Freeman’s inmate account; or (b) the average monthly balance in Freeman’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 Freeman’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 Freeman’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 Greene.

4. The Complaint is DEEMED filed.

5. The Complaint is DISMISSED WITHOUT PREJUDICE for the reasons

in the Court’s Memorandum.

6. Freeman 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 Freeman’s claims against each defendant. 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. The amended complaint

may not rely solely on exhibits to state a claim. When drafting his amended complaint,

Freeman 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 a copy of the Complaint (ECF

No. 2) to Freeman for his review, along with a blank copy of the Court’s form complaint

for a prisoner filing a civil rights action bearing the above civil action number.

Freeman may use this form to file his amended complaint if he chooses to do so.

8. If Freeman does not wish to amend his Complaint and instead intends

to stand on his Complaint as originally pleaded, 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”).

9. If Freeman fails to file any response to this Order, the Court will conclude

that Freeman 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

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

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.

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 his case or otherwise makes adjudication of the

matter impossible.” (citing cases)).