The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANSON CHI, : Civil No. 1:24-CV-00928
:
Plaintiff, :
:
v. :
:
UNITED STATES OF AMERICA, :
:
Defendant. : Judge Jennifer P. Wilson
MEMORANDUM
Before the court is the United States’ motion to dismiss the complaint
pursuant to Fed. R. Civ. P. 12(b), and in the alternative a motion for summary
judgment pursuant to Fed. R. Civ. P. 56. (Docs. 30, 60.) The court will grant the
pending motion and dismiss the complaint for failing to state a claim upon which
relief may be granted. The court grants Plaintiff leave to amend his complaint.
The court will also revoke Plaintiff’s in forma pauperis status.
BACKGROUND AND PROCEDURAL HISTORY
Anson Chi (“Plaintiff”) initiated this action by lodging a complaint in the
Western District of Pennsylvania. (Doc. 1-1.) The complaint and motion for leave
to proceed in forma pauperis were received and docketed by the Western District
of Pennsylvania on May 23, 2022. (Docs. 1, 1-1.) The Western District of
Pennsylvania granted the motion to proceed in forma pauperis and filed the lodged
complaint. (Docs. 4, 5.) The complaint was served on the United States
(“Defendant”). (Docs. 7, 13.)
On January 5, 2023, Defendant filed a motion to dismiss pursuant to Fed. R.
Civ. P. 12(b) and a brief in support. (Docs. 16, 17.) Plaintiff then filed a response
to the motion to dismiss and an amended complaint on March 15, 2023. (Docs. 22,
23.) The Western District of Pennsylvania dismissed the motion to dismiss as
moot based on the filing of the amended complaint. (Doc. 33.)
On June 12, 2023, Defendant filed a motion to dismiss the amended
complaint and, in the alternative, a motion for summary judgment along with a
brief in support. (Doc. 30.) On July 7, 2023, the Western District of Pennsylvania
entered an order putting Plaintiff on notice that Defendant was seeking summary
judgment based on a failure to exhaust the administrative remedies and that his
responsive briefing could include exhibits. (Doc. 40.) Plaintiff filed a brief in
opposition on September 15, 2023. (Doc. 44.) On April 9, 2024, Defendant filed a
supplemental brief or, in the alternative, a motion to revoke in forma pauperis
status and dismiss. (Doc. 60.) Defendant alleged that Plaintiff had three strikes
under 28 U.S.C. § 1915 and did not qualify for in forma pauperis status. (Id.) The
motion also raised the issue of improper venue. (Id.) On May 28, 2024, Plaintiff
filed a responsive brief to the supplemental brief. (Doc. 65.)
On June 5, 2024, the Western District of Pennsylvania entered an order
transferring venue to this court. (Doc. 66.) On June 10, 2024, this court entered an
order notifying that parties that the court intended to address the pending motion to
dismiss the complaint identified on the docket at Doc. 30. (Doc. 69.)
JURISDICTION AND VENUE
The court has jurisdiction over Plaintiff’s action pursuant to 28 U.S.C. §
1331, which allows a district court to exercise subject matter jurisdiction in civil
cases arising under the Constitution, laws, or treaties of the United States. Venue
is proper in this district because the alleged acts and omissions giving rise to the
claims occurred at United States Prison Canaan (“USP-Canaan”), in Wayne
County, Pennsylvania, which is located within this district. See 28 U.S.C. §
118(b).
DISCUSSION
The amended complaint is merely an attempt to correct the original
complaint and lacks any alleged facts. Therefore, it cannot survive Defendant’s
Rule 12(b)(6) challenge.
The amended complaint states that Plaintiff “may base all of his FTCA
claims on state law torts instead of constitutional tort claims. 28 U.S.C.S. §
1346(b). Chi does so here.” (Doc. 23, pp. 1–2.)1 The amended complaint then
1 For ease of reference, the court use the page numbers from the CM/ECF header.
references the original complaint by identifying each claim by number and
asserting it is based on a state law tort claim: “Claim # 1 is now based on
Pennsylvania state law torts pursuant to 28 U.S.C.S. § 1346(b)”; “Claim #2 is now
based on Pennsylvania state law torts under 28 U.S.C.S. § 1346(b)”; and continues
with identical phrasing through claim twenty-six. (Id., pp. 1–6.)
Plaintiff asks the court to read the amended complaint with the original
complaint. (Doc. 44.) However, the Third Circuit Court of Appeals and this court
have clearly held that an amended pleading replaces the original pleading. See
Snyder v. Pascack Valley Hosp., 303 F.3d 271, 276 (3d Cir. 2002) (recognizing
that an “amended complaint supersedes the original version”); Bamat v. Glenn O.
Hawbaker, Inc., 2019 WL 1125817, at *1 n.4 (M.D. Pa. Mar. 12, 2019) (quoting
Florida Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670, 706 n.2 (1982)); (“It
is the complaint which defines the nature of an action, and once accepted, an
amended complaint replaces the original.”). Therefore, the court declines to read
the original complaint and the amended complaint together. Instead, the court will
look at the amended complaint in isolation when addressing the pending motion to
dismiss.
A. The Amended Complaint Fails To State A Claim Upon Which Relief
Can Be Granted.
In order “[t]o survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (quoting
Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to
survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir.
2019) (quoting Iqbal, 556 U.S. at 678–79). To determine whether a complaint
survives a motion to dismiss, a court identifies “the elements a plaintiff must plead
to state a claim for relief,” disregards the allegations “that are no more than
conclusions and thus not entitled to the assumption of truth,” and determines
whether the remaining factual allegations “plausibly give rise to an entitlement to
relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012) abrogated on other
grounds by Mack v. Yost, 968 F.3d 311 (3d. Cir. 2020).
When ruling on a motion to dismiss under Rule 12(b)(6), the court must
“accept all factual allegations as true, construe the complaint in the light most
favorable to the plaintiff, and determine whether, under any reasonable reading of
the complaint, the plaintiff may be entitled to relief.” Phillips v. County of
Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings,
Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). In addition to reviewing the facts
contained in the complaint, the court may also consider “exhibits attached to the
complaint, matters of public record, as well as undisputedly authentic documents”
attached to a defendant’s motion to dismiss if the plaintiff’s claims are based upon
these documents. Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing
Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196
(3d Cir. 1993)).
The pleadings of self-represented plaintiffs are to be liberally construed and
held to a less stringent standard than formal pleadings drafted by attorneys. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Fantone v. Latini, 780 F.3d 184, 193
(3d Cir. 2015), as amended (Mar. 24, 2015). Self-represented litigants are to be
granted leave to file a curative amended complaint even when a plaintiff does not
seek leave to amend, unless such an amendment would be inequitable or futile.
See Est. of Lagano v. Bergen Cnty. Prosecutor’s Off., 769 F.3d 850, 861 (3d Cir.
2014); see also Phillips, 515 F.3d at 245. A complaint that sets forth facts which
affirmatively demonstrate that the plaintiff has no right to recover is properly
dismissed without leave to amend. Grayson v. Mayview State Hosp., 293 F.3d
103, 106 (3d Cir. 2002).
Here, the amended complaint merely refers to claims made in the original
complaint by number and does not provide any alleged facts. (Doc. 23.)
Therefore, it cannot survive a motion under Fed. R. Civ. P. 12(b), Iqbal, and
Twombly. The court must dismiss the complaint. However, the court will dismiss
the complaint without prejudice. Pursuant to Phillips, Plaintiff will have a final
opportunity to bring his claims before this court by filing a second amended
complaint using the civil rights complaint form provided by the court.
The court notes that Defendant has asked the court for summary judgment in
the alternative to the dismissal of the complaint and proper notice of the
implications of a motion for summary judgment has been served on Plaintiff.
(Docs. 30, 40.) Typically, the court would consider the evidence outside the record
to determine if leave to amend would be futile. However, since the amended
complaint does not include any alleged facts, the court cannot glean the conduct at
issue and the state tort law claims associated with the conduct without reviewing
the original complaint. As addressed above, the amended complaint replaced the
original complaint, and the original complaint will not be reviewed in conjunction
with the amended complaint. Therefore, the amended complaint will be dismissed
without prejudice.
B. Plaintiff’s In Forma Pauperis Status Will Be Revoked.
Defendant also requests that Plaintiff’s in forma pauperis status be revoked
based on him having three strikes under 28 U.S.C. § 1915(g). (Doc. 60, pp. 4–7.)
The Prison Litigation Reform Act (“PLRA”) includes a “three strikes” rule,
“which limits a prisoner’s ability to proceed [in forma pauperis] if the prisoner
abuses the judicial system by filing frivolous actions.” Abdul-Akbar v. McKelvie,
239 F.3d 307, 312 (3d Cir. 2001) (en banc).
The statutory text of the “three strikes rule” provides the following:
In no event shall a prisoner bring a civil action or appeal a judgment in
a civil action or proceeding under this section if the prisoner has, on 3
or more prior occasions, while incarcerated or detained in any facility,
brought an action or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or fails to state
a claim upon which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.
28 U.S.C. § 1915(g).
The Fifth Circuit has twice found that Plaintiff was ineligible to proceed in
forma pauperis pursuant to 28 U.S.C. 1915(g). Chi v. Doe #1, 690 Fed. Appx. 293
(5th Cir. 2017); Chi vi. Stover, 706 Fed. Appx. 835, 836 (5th Cir. 2017).
Furthermore, considering there were no factual allegations contained in the
amended complaint, there are insufficient facts to establish that Plaintiff is facing
imminent danger if he is unable to proceed in this action. Therefore, Plaintiff’s in
forma pauperis status will be revoked. Despite this revocation, the filing fee has
been paid in full. (Doc. 6.) Therefore, no fee is currently due under 28 U.S.C. §
1914(a). However, there is a $55.00 administrative fee prescribed by the Judicial
Conference of the United States pursuant to 28 U.S.C. § 1914(b) that is no longer
waived by the court since Plaintiff will no longer have in forma pauperis status.
See District Court Miscellaneous Fee Schedule, https://www.uscourts.gov/court-
programs/fees/district-court-miscellaneous-fee-schedule (last viewed on Feb. 3,
2025). Plaintiff must timey pay the administrative fee to continue to pursue his
case. Failure to timely pay the outstanding administrative fee will result in the case
being dismissed.
CONCLUSION
For the above stated reasons, Plaintiff’s amended complaint will be
dismissed without prejudice. He will be granted a final opportunity to file a second
amended complaint before this court. Furthermore, Plaintiff must pay the
outstanding administrative fee to continue to pursue this action.
An appropriate order follows.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Judge
Middle District of Pennsylvania
Dated: February 24, 2025