ACOSTA v. SCHULTZ et al

Filing 5

ORDER granting 3 Motion to Amend Complaint; the Clerk shall file the attachment to the 3 Motion as Pltf's Amended Complaint. The 2 IFP application is DENIED W/OUT PREJUDICE, etc. Pltf may file a Motion to file a second amended complaint w/in 30 days. The Clerk shall issues summons as to Defts Dr. Ruben B. Morales, Lt. D. McCabe, and Officer P. Davenport. Signed by Judge Noel L. Hillman on 3/5/2014. (drw)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

GABRIEL ACOSTA,
Plaintiff,
v.
WARDEN SCHULTZ, et al.,
Defendants.

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Civil Action No. 12-6614(NLH)

ORDER

For the reasons expressed in the Opinion filed herewith,
IT IS on this

5th

day of

March

, 2014,

ORDERED that the Motion [3] for leave to amend is GRANTED;
and it is further
ORDERED that the Clerk of the Court shall file the
attachment to the Motion [3] as Plaintiff’s Amended Complaint;
and it is further
ORDERED that Plaintiff’s Application [2] to proceed in
forma pauperis is hereby DENIED WITHOUT PREJUDICE; and it is
further
ORDERED that Plaintiff’s Eighth Amendment claim for failure
to diagnose and treat a hernia is DISMISSED WITHOUT PREJUDICE;
and it is further
ORDERED that Plaintiff’s Eighth Amendment claim for delay
of medical treatment, asserted against SIS Officer P. Davenport,

SIS Lieutenant D. McCabe, and two female Unidentified
Correctional Officers MAY PROCEED; and it is further
ORDERED that Plaintiff’s Eighth Amendment medical care
claims, asserted against Dr. Ruben B. Morales, for permitting
SIS and correctional officers to delay treatment, and for
failure to authorize recommended ophthalmological and nasal
evaluation and treatment, MAY PROCEED; and it is further
ORDERED that the FTCA claim for negligent failure to
protect Plaintiff from attack by another inmate is DISMISSED
WITH PREJUDICE; and it is further
ORDERED that all remaining claims against all remaining
Defendants are DISMISSED WITHOUT PREJUDICE; and it is further
ORDERED that within 30 days after entry of this Order,
Plaintiff may file a motion for leave to file a second amended
complaint, attaching to any such motion a proposed second
amended complaint addressing the deficiencies of the Complaint
as described in the Opinion filed herewith; and it is further
ORDERED that, in accordance with Rule 15 of the Federal
Rules of Civil Procedure, including the “Relation Back”
provisions of Rule 15(c), Plaintiff may file a separate motion
for leave to amend, attaching to any such motion a proposed
amended complaint identifying by name the currently unidentified
female Correctional Officers; and it is further

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ORDERED that the Clerk shall issue summonses to Defendants
Dr. Ruben B. Morales, Lt. D. McCabe, and Officer P. Davenport,
and that Plaintiff shall serve on each such Defendants the
summons and a copy of the Amended Complaint, this Order, and the
Opinion accompanying this Order, in accordance with Rule 4 of
the Federal Rules of Civil Procedure; and it is further
ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2),
Defendants who are served shall file and serve a responsive
pleading within the time specified by Fed.R.Civ.P. 12.

At Camden, New Jersey

s/Noel L. Hillman
Noel L. Hillman
United States District Judge

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