STILE v. FEDERAL BUREAU OF PRISONS et al
Filing
2
MEMORANDUM, ORDER Plaintiffs application to proceed in forma pauperis is DENIED without prejudice. Directing Clerk to administratively terminate this matter. Directing Clerk serve a copy of this Order and the accompanying Opinion, together with a blank form Affidavit of Poverty and Account Certification on Plaintiff. Signed by Judge Renee Marie Bumb on 8/25/2016. (rtm, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
JAMES STILE,
:
:
Plaintiff,
:
:
v.
:
:
FEDERAL BUREAU OF PRISONS, et al., :
:
Defendants.
:
This
matter
comes
before
the
CIV. NO. 16-3832 (RMB)
MEMORANDUM AND ORDER
Court
upon
Plaintiff’s
submission of a civil rights complaint, and his application to
proceed in forma pauperis. (Compl., ECF No. 1; IFP App., ECF No.
1-2.) Plaintiff is a prisoner confined in FCI Fort Dix. (Id., ¶3.)
I.
IFP APPLICATION
28 U.S.C. § 1915(a) provides that a prisoner seeking to bring
a civil action without prepayment of fees shall submit an affidavit
indicating the person is unable to pay such fees, and shall also
“submit a certified copy of the trust fund account statement for
the prisoner for the 6-month period immediately preceding the
filing of the complaint . . . obtained from the appropriate
official of each prison at which the prisoner is or was confined.”
Plaintiff’s IFP application is missing the trust fund account
statement for the 6-month period immediately preceding the filing
1
of the complaint. The Court will deny the IFP application without
prejudice.
II.
SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(b) and § 1915A
Under 28 U.S.C. § 1915(e)(2)(b) and § 1915A, 1 the Court is
required to review a prisoner’s civil rights complaint and dismiss
any claims that are: (1) frivolous or malicious; (2) fail to state
a claim on which relief may be granted; or (3) seek monetary relief
against a defendant who is immune from such relief.
III. DISCUSSION
A.
The Complaint
Plaintiff alleges the following in his Complaint. In the Fall
of 2015, Plaintiff asked Defendant Colina, an employee of the
Federal Bureau of Prisons who was assigned to work in Food Services
#10, if he could be relieved from his work assignment in the dining
hall due to his deadlines for filing legal work. (Compl., ECF No.
1,
¶17.)
Colina
refused.
(Id.)
Plaintiff
went
to
Colina’s
supervisor, Burns, who referred Plaintiff back to Colina. (Id.)
Plaintiff
alleged
the
decision
1
not
to
relieve
him
of
work
This Court’s conclusive screening of Plaintiff’s claims is
reserved until he pays the filing fee or properly obtains in forma
pauperis status. See Izquierdo v. New Jersey, 532 F. App’x 71 (3d
Cir. July 25, 2013) (district court may decide whether to dismiss
the complaint under 28 U.S.C. § 1915(e)(2) after leave to proceed
IFP is granted).
2
responsibilities before the 180th day of employment violated his
right of access to the courts, and his right to due process. (Id.,
¶18.)
Plaintiff provided each defendant with a copy of Program
Statement
1315.071,
which
allows
dispensation
from
work
responsibilities based on impending court deadlines, and he also
filed
administrative
remedy
forms
and
cop-outs
to
let
each
defendant know about his grievance. (Id.) On November 9, 2015,
Colina overruled Burns’s decision that Plaintiff could do his legal
work in the dining hall when he was not busy, “the same as others
could do educational reading and homework.” (Id., ¶19.) Plaintiff
alleged this was discrimination against him “due to other workers
failure to perform their work duties.” (Id.)
On November 10, 2015, Plaintiff had a medical appointment and
did not report to work. (Id., ¶20.) Colina wrote a retaliatory
disciplinary report against Plaintiff, knowing Plaintiff had told
her about his medical appointment the previous day, and his name
was published on the medical “call-out” sheet. (Id.) Plaintiff was
intimidated into signing an informal resolution of his grievance
over the retaliatory disciplinary report. (Id., ¶21.)
Plaintiff
repeatedly
asked
Correctional
Officer/Counselor
Malloy for assistance with his request for time off work to meet
3
his legal filing deadlines. (Id., ¶22.) Malloy would not help.
(Id.) Plaintiff sought help from Malloy’s supervisor, Robinson,
the housing unit manager. (Id., ¶23.) Robinson failed to intervene
of Plaintiff’s behalf. (Id.) Colina then discriminated against
Plaintiff by reducing his work hours. (Id., ¶29.)
On December 2, 2015, Colina filed a disciplinary report
against Plaintiff for offering a bribe. (Id., ¶30.) Plaintiff had
offered not to file a BP-8 grievance against Colina, if Colina
“agreed not to discriminate by taking Plaintiff’s hours.” (Id.,
¶29.) This accusation caused Plaintiff emotional distress and
inability to work on his other legal obligations. (Id., ¶30.)
Plaintiff’s PTSD and panic disorder were exacerbated. (Id.)
Plaintiff is 60-years-old, and has been found disabled under
the Social Security Administration definition of disability since
1988. (Id., ¶31.) Plaintiff was in medical segregation for spinal
injuries for the ten-month period prior to his admission to FCI
Fort Dix, and his muscles were atrophied. (Id.) He was assigned to
a second floor room and a food services work assignment over his
objections. (Id.) He was not given a neurological examination prior
to his work assignment. (Id.)
4
The medical work limitations assigned by Dr. Sood 2 at FCI Fort
Dix did not match the work limitations Plaintiff was given outside
of prison, in connection with his social security disability
finding. (Id.) Plaintiff had not been provided an MRI of his spine
with contrast, which was ordered by two doctors in January 2015.
(Id.) He was not seen by a neurosurgeon until January 2016. (Id.)
Plaintiff alleges all defendants were advised of his disabilities,
and that he should not be compelled to work. (Id.) Colina compelled
Plaintiff
to
perform
work
that
was
prohibited
by
the
work
limitations recommended by the FCI Fort Dix medical department,
including bending and lifting. This exacerbated pain in his spine.
(Id., ¶33.)
Plaintiff
alleges
the
following
causes
of
action:
1)
retaliation and discrimination by Colina in violation of 42 U.S.C.
§ 2000e; 42 U.S.C. § 1981(a); 2) Burns is liable as Colina’s
supervisor and due to her awareness and complicity in Colina’s
misconduct; (3) Malloy is liable because Malloy was aware of and
failed to stop the violations by other staff against Plaintiff;
(4) Robinson is liable based on his awareness of the retaliation
and
discrimination,
and
failure
2
to
intervene
on
Plaintiff’s
Plaintiff did not name Dr. Sood as a defendant in this action,
and the Court assumes Plaintiff is not trying to state a claim
against him.
5
behalf; (5) Associate Warden Mason is liable for her failure to
act on Plaintiff’s grievances against Colina, Burns, Robinson,
Malloy
and
others;
(6)
Hazelwood,
Associate
Warden
of
Food
Services, is liable for the conduct of Colina and Burns, because
Plaintiff
told
Hazelwood
about
their
retaliatory
and
discriminatory acts, and Hazelwood failed to intervene; (7) Warden
Hollingsworth is liable for failing to intervene after Plaintiff
complained directly to him about the acts of retaliation and
discrimination; (8) Correctional Officer/Psychologist Rehwinkle is
liable for deliberate indifference because she knew of the harm
done
to
Plaintiff
by
retaliation
and
discrimination
in
Food
Services but allowed it to continue; (9) Assistant Medical Director
Wilkes was aware of Plaintiff’s grievances about being compelled
to work in the dining hall; additionally Wilkes failed to obtain
Plaintiff’s medical records for many months, and refused to review
the MRI reports that supported Plaintiff’s disability status with
the Social Security Administration; (10) the Federal Bureau of
Prisons is liable to Plaintiff for violation of his constitutional
rights, and for violation of the Americans with Disabilities Act,
42 U.S.C. § 12101; and (11) Correctional Officer Kwartin is in
charge of all job changes on the west compound of FCI Fort Dix and
6
refused to help Plaintiff with a job change out of the kitchen.
(Compl., ¶34.)
B.
Standard of Review
A pleading must contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). “To 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 Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “A claim has facial plausibility 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.)
“[A]
court
must
accept
as
true
all
of
the
allegations
contained in a complaint.” Id. A court need not accept legal
conclusions
as
true.
Id.
Legal
conclusions,
together
with
threadbare recitals of the elements of a cause of action, do not
suffice to state a claim. Id. Thus, “a court considering a motion
to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled to the
assumption of truth.” Id. at 679. “While legal conclusions can
provide the framework of a complaint, they must be supported by
7
factual allegations.” Id. If a complaint can be remedied by an
amendment, a district court may not dismiss the complaint with
prejudice, but must permit the amendment. Grayson v. Mayview State
Hospital, 293 F.3d 103, 108 (3d Cir. 2002).
C.
Claims Under Bivens
In Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388, 395 (1971), the Supreme Court held that
damages may be obtained for injuries caused by “a violation of the
Fourth Amendment by federal officials.” Bivens also extends to
Eighth Amendment claims by prisoners, see e.g., Carlson v. Green,
446 U.S. 14 (1980), First Amendment retaliation claims, see Hartman
v. Moore, 547 U.S. 250, 256 (2006), and Fifth Amendment substantive
due process and equal protection claims, see e.g. Argueta v. U.S.
Immigration and Customs Enforcement, 643 F.3d 60, 67 (3d Cir.
2011). In the limited settings where Bivens applies, “the implied
cause of action is the ‘federal analog to suits brought against
state officials under ... 42 U.S.C. § 1983.’” Iqbal, 556 U.S. at
675–76 (quoting Hartman, 547 U.S. at 254 n. 2). “If a federal
prisoner in a BOP facility alleges a constitutional deprivation,
he may bring a Bivens claim against the offending individual
officer, subject to the defense of qualified immunity.” Corr.
Services. Corp. v. Malesko, 534 U.S. 61, 72 (2001).
8
Like § 1983 claims, there is no respondeat superior liability
under Bivens, a defendant must have personal involvement in the
constitutional violation for liability to attach. Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009). A supervisor, however, may be
liable for his own misconduct. Barkes v. First Corr. Medical, Inc.,
766 F.3d 307, 320 (3d Cir. 2014) reversed on other grounds by
Taylor v. Barkes, 135 S.Ct. 2042 (2015). The level of intent
necessary
to
establish
supervisory
liability
varies
with
the
underlying constitutional tort. Id. at 319. For example, if the
underlying tort is denial of adequate medical care under the Eighth
Amendment, the mental state required to hold a supervisor liable
for his own misconduct is deliberate indifference. Id.
Liberally construing the Complaint, Plaintiff is alleging
violation of his First Amendment right of access to the courts;
retaliation in violation of his First Amendment; cruel and unusual
punishment in violation of the Eighth Amendment; violation of the
Americans with Disabilities Act; and violation of Title VII of the
Civil Rights Act of 1964. Plaintiff also asserts he has exhausted
his remedies to file claims under the Federal Tort Claims Act.
2.
First Amendment Right of Access to the Courts
Plaintiff alleges Colina’s failure to give him time off from
his prison work assignment to meet the court deadlines in his
9
litigation violated his First Amendment right of access to the
courts. 3 “[T]o pursue a claim of denial of access to the courts an
inmate must allege actual injury, such as the loss or rejection of
a legal claim.” Oliver v. Fauver,
1997)(citing
Lewis
v.
Casey,
118
116
F.3d
S.Ct.
175,
2174,
178
(3d
2179
Cir.
(1996)).
Plaintiff has not alleged an actual injury that occurred as the
result of Defendants’ failure to give him time off work to meet
his legal deadlines. See Tourscher v. McCullough, 184 F.3d 236,
242 (3d Cir. 1999)(prisoner failed to allege facts showing that
number of hours he worked in prison cafeteria caused an actual
injury to his pursuit of a legal claim.) Therefore, if he can allege
facts
showing
an
actual
injury,
Plaintiff
should
amend
his
Complaint to avoid dismissal of this claim.
3.
First Amendment Retaliation Claim
3
Plaintiff also alleges Colina’s refusal to give him time off
work, as permitted by Program Statement 1315.071, violated his
right to due process. No protectible liberty interest is created
by a regulation which accords officials “unfettered discretion.”
Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 465-66
(1981).
Conversely,
regulations
which
mandate
procedural
protections create a liberty interest protected by the Due Process
Clause. Drayton v. Robinson, 719 F.2d 1214, 1217 (3d Cir. 1983).
Plaintiff has not provided the language of Program Statement
1317.071. The Court cannot, at this time, determine whether
Plaintiff has a due process liberty interest in time off his prison
work assignment to perform legal work, under Program Statement
1315.071.
10
Plaintiff alleges two acts of retaliation by Colina. First,
he alleges Colina filed a disciplinary report against him for not
reporting
to
work,
although
Colina
knew
he
had
a
medical
appointment that morning. Second, Plaintiff alleges Colina filed
a disciplinary report against him for offering a bribe. The alleged
bribe was that Plaintiff would not file his grievance against
Colina, if Colina agreed not to reduce Plaintiff’s work hours.
The
elements
constitutionally
prison
of
a
protected
officials
retaliation
conduct,
“‘sufficient
to
(2)
deter
claim
an
a
include
adverse
person
of
action
(1)
by
ordinary
firmness from exercising his [constitutional] rights,’” and (3) “a
causal link between the exercise of his constitutional rights and
the adverse action taken against him.” Mitchell v. Horn, 318 F.3d
523, 530 (3d Cir. 2003)(quoting Rauser v. Horn, 241 F.3d 330, 333
(3d Cir. 2001)(quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d
Cir. 2000)(alteration in original). To meet the third element:
a plaintiff must prove either (1) an unusually suggestive temporal
proximity
between
the
protected
activity
and
the
allegedly
retaliatory action, or (2) a pattern of antagonism coupled with
timing to establish a causal link. Lauren W. ex rel. Jean W. v.
DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)(citing Krouse v.
11
American Sterilizer Co., 126 F.3d 494, 503–04 (3d Cir. 1997);
Woodson v. Scott Paper Co., 109 F.3d 913, 920–21 (3d Cir. 1997)).
Although Plaintiff characterizes Colina’s conduct of writing
disciplinary reports as retaliation, nowhere in the Complaint does
Plaintiff state why Colina was retaliating against him. The first
element of a retaliation claim is that the retaliation was aimed
at
constitutionally
protected
conduct.
The
present
Complaint
contains insufficient facts to state a retaliation claim against
Colina or any person who failed to intervene regarding Plaintiff’s
complaints of retaliation by Colina.
4.
Plaintiff
Equal Protection Claims
alleged
two
acts
of
discrimination
by
Colina.
First, Colina overruled Burns’s decision that Plaintiff could do
legal work in the dining hall when he was not serving food, “the
same as others could do educational reading and homework.” Colina
revoked Plaintiff’s privilege of doing his legal work when other
workers failed to perform their work duties. Second, Colina reduced
Plaintiff’s hours after they were logged into payroll.
The
Equal
Protection
Clause
of
the
Fourteenth
Amendment
provides that no State shall “deny to any person within its
jurisdiction the equal protection of the laws.” Renchenski, 622
F.3d 315, 337 (3d Cir. 2010)(quoting U.S. Const. amend. XIV, § 1.)
12
“̔To prevail on an equal protection claim, a plaintiff must present
evidence that s/he has been treated differently from persons who
are similarly situated.’” Id. (quoting Williams v. Morton, 343
F.3d 212, 221 (3d Cir. 2003)). A plaintiff is required to allege
that he was treated differently because he was a member of a
suspect class or because he exercised a constitutional right. Id.
(citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
439–40 (1985).
To allege an equal protection claim under the “class of one”
theory, a plaintiff must allege he was “intentionally treated
differently from others similarly situated and that there [was] no
rational basis for the difference in treatment.” Id. at 337-38
(quoting Village
of
Willowbrook
v.
Olech,
528
U.S.
562,
564
(2000.))
The facts alleged to support Plaintiff’s equal protection
claims are insufficient. Plaintiff did not allege he is a member
of a suspect class. He did not allege the reason Colina would not
allow him to do legal work in the dining hall was to discriminate
against him for exercising his right of access to the courts.
Plaintiff’s equal protection claims also fail under the class
of one theory. Plaintiff did not allege that he was the only person
in the prison not allowed to do legal work during his prison job.
13
Therefore, the Complaint fails to state an equal protection claim
against Colina and the defendants who failed to intervene on
Plaintiff’s behalf.
Plaintiff further alleged he was discriminated against when
Colina reduced his work hours, because other kitchen workers who
had the same hours did not have their hours reduced. As with the
above claim, Plaintiff did not allege that Colina did this because
Plaintiff was a member of a suspect class. Plaintiff did not allege
that he was the only person in the prison whose work hours were
reduced, and that there was no rational basis for doing so, as
required to state an equal protection claim under the class of one
theory. Furthermore, there appears on the face of the Complaint a
rational basis for Colina to reduce Plaintiff’s work hours, because
he claimed he needed more time to do legal work. Therefore, the
Complaint fails to state an equal protection claim.
C.
Violation of the Americans with Disabilities Act under
42 U.S.C. § 12101
The
Americans
funded
state
with
programs
Disabilities
from
Act
discriminating
prohibits
against
“federally
a
disabled
individual solely by reason of his or her disability.” Matthews v.
Pennsylvania Dept. of Corr., 613 F. App’x 163, 167 (3rd Cir. 2015).
Public
entities
must
make
reasonable
modifications
to
their
programs and policies “in order to avoid discrimination on the
14
basis of disability.” Id. (citing 28 C.F.R. § 35.130(b)(7)). To
state a claim under the ADA, plaintiffs must allege that:
(1) they are handicapped or disabled as
defined under the statutes; (2) they are
otherwise qualified to participate in the
program at issue; and (3) they were precluded
from participating in a program or receiving
a service or benefit because of their
disability.
CG v. Pennsylvania Dept. of Educ., 734 F.3d 229, 235 (3d Cir. 2013)
(citing Chambers ex rel. Chambers v. School Dist. of Philadelphia
Bd. of Educ., 587 F.3d 176, 189 (3d Cir. 2009)).
Plaintiff alleged he has a disability affecting his spine,
for which he received benefits under the Social Security Disability
Program. Plaintiff, however, has not alleged that he was excluded
from participating in or that he was denied benefits of a service,
program or activity by reason of his disability. See Pierce v.
Pitkins, 520 F. App’x 64, 67 (3d Cir. 2013)(prisoner failed to
allege any facts that inadequate or improper medical care he
received was based on discrimination because of a disability.)
Plaintiff’s claim that he was given a job assignment in prison
that
exceeded
protection
his
abilities
does
against
exclusion
from
not
fit
within
participation
or
the
ADA’s
denial
of
benefits by reason of disability. The Court cannot discern any
other claim under the ADA that Plaintiff is asserting. Plaintiff’s
15
claim regarding being assigned work which is inconsistent with his
medical
condition
is
more
properly
brought
under
the
Eighth
Amendment.
D.
Retaliation under 42 U.S.C. § 2000e
Plaintiff asserts that Defendants discriminated against him
in his prison employment in violation of Title VII. “It is well
established that a prisoner is not an employee under the Fair Labor
Standards Act (FLSA), because the relationship is not one of
employment, but arises out of the prisoner's status as an inmate.”
Wilkerson v. Samuels, 524 F. App’x 776, 779 (3d Cir. 2013)(per
curiam); (citing Tourscher v. McCullough, 184 F.3d 236, 243 (3d
Cir. 1999);
Vanskike v. Peters, 974 F.2d 806, 809 (7th Cir.
1992)). Similarly, there is no employment relationship between a
prisoner and a prison under Title VII. Id. (citing Williams v.
Meese, 926 F.2d 994, 997 (10th Cir. 1991); see also E.E.O.C. Dec.
No. 86–7, *3, 40 Fair Empl.Prac.Cas. (BNA) 1892 (1986)). Therefore,
Plaintiff’s Title VII claim(s) would not survive screening under
28 U.S.C. §§ 1915A, 1915.
Likewise, Plaintiff’s claim of intentional discrimination in
employment under 42 U.S.C. § 1981a, which does not create a new
cause of action but authorizes additional remedies for plaintiffs
whom can show violations of Title VII, would not survive screening
16
under 28 U.S.C. §§ 1915A, 1915. See Pollard v. Wawa Food Market,
366
F.Supp.2d
247,
251
(E.D.
Pa.
2005)(“the
great
weight
of
authority holds that § 1981a does not create an independent cause
of action, but only serves to expand the field of remedies for
plaintiffs in Title VII suits” (citations omitted)).
F.
Federal Tort Claims Act
The Federal Tort Claims Act (“FTCA”) subjects the United
States to liability for the tortious conduct of federal government
employees occurring within the scope of employment. 28 U.S.C. §§
1346(b), 2671 et seq. Plaintiff alleges he has exhausted his
administrative
(“FTCA”),
as
remedies
is
under
required
the
before
Federal
this
Tort
Court
Claims
can
Act
exercise
jurisdiction over his claims. However, Plaintiff has not named the
United States as a defendant in his Complaint.
“[T]he FTCA authorizes suits only against the United States
itself, not individual defendants or agencies.” Banks v. Roberts,
251 F. App’x 774, 777 (3d Cir. 2007)(citing 28 U.S.C. § 2680(a)).
A plaintiff fails to state a claim under the FTCA where the
complaint failed to name the United States as a defendant. Id.
(citing 28 U.S.C. § 2679(b)(1)). Plaintiff may wish to amend his
Complaint to cure this defect.
G.
Defendant Rehwinkle
17
Plaintiff alleged Defendant Rehwinkle, who is a Correctional
Officer/Psychologist, knew that the problems Plaintiff was having
in Food Services was causing him physical and mental harm, and
Rehwinkle was deliberately indifferent by failing to intervene on
Plaintiff’s
behalf.
As
Plaintiff’s
mental
health
treatment
provider, Rehwinkle had a duty to provide adequate mental health
treatment. See Latona v. Prison Health Services, 397 F. App’x 807,
811 (3d Cir. 2010)(finding insufficient evidence that member of
mental health treatment team was deliberately indifferent to the
plaintiff’s
mental
health
needs
in
violation
of
the
Eighth
Amendment.) Plaintiff has not alleged Rehwinkle failed to provide
him adequate mental health treatment, but only that Rehwinkle
failed to intervene in his employment dispute. Rehwinkle was not
constitutionally required to intervene in Plaintiff’s employment
dispute.
H.
Defendant Kwartin
Plaintiff alleged Defendant Kwartin was in charge of job
changes in the West Compound of F.C.I. Fort Dix where Plaintiff
worked, and he failed to authorize a job change for Plaintiff.
Therefore, Plaintiff alleges Kwartin is liable for the retaliation
and discrimination against Plaintiff in his job assignment.
18
Plaintiff does not have a constitutional right to choose his
prison work assignment. See James v. Quinlan, 866 F.2d 627, 629
(3d Cir. 1989)(prisoners do not have a liberty or property interest
in a prison job assignment arising directly from the Due Process
Clause.) The Complaint does not state a Bivens claim against
Defendant Kwartin.
IT IS therefore on this 25th day of August, 2016,
ORDERED that Plaintiff’s application to proceed in forma
pauperis (ECF No. 1-2) is denied without prejudice; and it is
further
ORDERED that the Clerk shall administratively terminate this
matter by making a new and separate entry on the docket reading
“Civil Case Terminated,” without filing the complaint or assessing
a filing fee; and it is further
ORDERED that administrative termination is not a “dismissal”
for purposes of the statute of limitations, and that if this action
is reopened pursuant to the terms of this Order, it is not thereby
subject to the statute of limitations bar, provided the original
complaint was timely. See Houston v. Lack, 487 U.S. 266 (1988);
Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013);
McDowell v. Delaware State Police, 88 F.3d 188, 191 (3d Cir. 1996);
and it is further
19
ORDERED that Plaintiff may have this matter reopened if,
within thirty days of the date of this Order, he either prepays
the $400 filing fee or files with the Clerk his affidavit of
poverty and certified prison trust account statement for the sixmonth period immediately preceding the filing of the complaint, as
required by 28 U.S.C. § 1915(a); Plaintiff may also submit an
amended
complaint
to
cure
the
deficiencies
of
the
Complaint
described above; and it is further
ORDERED that the Clerk shall serve a copy of this Order and
the accompanying Opinion, together with a blank form “Affidavit of
Poverty and Account Certification (CIVIL RIGHTS)” on Plaintiff by
regular U.S. mail.
s/RENÉE MARIE BUMB__________
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
20
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