SALLEY v. CALIGIURI et al

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MALEAK KEON SALLEY, 	:
Plaintiff, 	:
:
v. 	: 	CIVIL ACTION NO. 26-CV-5104
:
RNS CALIGIURI, et al., 	:
Defendants. 	:
ORDER
AND NOW, this 14th day of October, 2026, upon consideration of Plaintiff Maleak Keon
Salley’s Motions to Proceed In Forma Pauperis (ECF Nos. 1, 7), his Prisoner Trust Fund
Account Statement (ECF No. 3), his pro se Complaint (ECF No. 2), and his Motions to Appoint
Counsel (ECF Nos. 6, 8), it is ORDERED that:
1. 	Salley’s first motion for leave to proceed in forma pauperis (ECF No. 1) is
GRANTED pursuant to 28 U.S.C. § 1915. His second motion for leave to proceed in forma
pauperis (ECF No. 7) is DENIED AS MOOT.
2. 	Maleak Keon Salley, #QQ0976, 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 Salley’s inmate account; or (b)
the average monthly balance in Salley’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
Salley’s inmate trust fund account exceeds $10.00, the Superintendent or other appropriate
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official shall forward payments to the Clerk of Court equaling 20% of the preceding month’s
income credited to Salley’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. 	Salley’s deliberate indifference claims and grievance-based claims against
Superintendent J. Terra are DISMISSED WITH PREJUDICE.
6. 	The remainder of Salley’s constitutional claims are 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.
7. 	Salley’s state law claims are DISMISSED WITHOUT PREJUDICE for lack of
subject matter jurisdiction.
8. 	Salley 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 Salley’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. When drafting his amended complaint, Salley 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.
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9. 	The Clerk of Court is DIRECTED to send Salley a blank copy of the Court’s
form complaint for a prisoner filing a civil rights action bearing the above civil action number.
Salley may use this form to file his amended complaint if he chooses to do so.
10. 	If Salley 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, 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”).
11. 	If Salley fails to file any response to this Order, the Court will conclude that
Salley intends to stand on his Complaint and will issue a final order dismissing this case.1 See
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
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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).
12. 	Salley’s Motions to Appoint Counsel are DENIED WITHOUT PREJUDICE as
premature.
BY THE COURT:
/s/ Gerald Austin McHugh
GERALD A. MCHUGH, J.
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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