Smith v. Kennedy et al

Filing 21

ORDER The Second Amended Complaint, (Doc. No. 20), survives initial review under 28 U.S.C. § 1915. The Clerk is directed to mail summons forms to Plaintiffs counsel, which counsel will fill out and return for service of p rocess on Defendant Wall within 20 days of this Order. Once the Court receives the summons forms, the Clerk shall then direct the U.S. Marshal to effectuate service on Defendant Wall.. Signed by Chief Judge Frank D. Whitney on 3/21/18. (clc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:17-cv-119-FDW
SEAN SMITH,

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Plaintiff,
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vs.
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ALLAN KENNEDY, et al.,
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Defendants.
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__________________________________________)

ORDER

THIS MATTER is before the Court on initial review of Plaintiff’s Second Amended
Complaint, (Doc. No. 20). Plaintiff is proceeding in forma pauperis, (3:14-cv-625, Doc. No. 8).
Pro se Plaintiff Sean Smith filed a civil rights suit pursuant to 42 U.S.C. § 1983 with
regards to incidents that allegedly occurred at the Lanesboro Correctional Institution. Plaintiff
filed the original Complaint along with four other inmates in case number 3:14-cv-625-FDW. The
instant case was opened on March 10, 2017, after the Court granted several Defendants’ motion to
sever. The original Complaint passed initial review and Plaintiff was granted leave to amend to
add a common law claim of intentional infliction of emotional distress, to which counsel for Mr.
Wall and the existing Defendants did not object. (Doc. No. 19). The Court concludes that the
Second Amended Complaint is not frivolous and should be served on Defendants. See 28 U.S.C.
§ 1915(e)(2)(B).
For the reasons stated herein, the Second Amended Complaint will proceed and service
will be ordered on Mr. Wall.
IT IS, THEREFORE, ORDERED that:
1. The Second Amended Complaint, (Doc. No. 20), survives initial review under 28
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U.S.C. § 1915.
2. IT IS FURTHER ORDERED THAT the Clerk is directed to mail summons forms to
Plaintiff’s counsel, which counsel will fill out and return for service of process on
Defendant Wall within 20 days of this Order. Once the Court receives the summons
forms, the Clerk shall then direct the U.S. Marshal to effectuate service on Defendant
Wall. The Clerk is respectfully instructed to note on the docket when the form has been
mailed to Plaintiff’s counsel.

Signed: March 21, 2018

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