NICHOLS v. BURNS et al

Filing 58

OPINION/ORDER THAT DEFENDANTS' MOTION TO DISMISS, ECF NO. 48 IS GRANTED IN PART AND DENIED IN PART. PLAINTIFF IS PERMITTED LEAVE TO AMEND HIS SECOND AMENDED COMPLAINT, AND MAY FILE A THIRD AMENDED COMPLAINT NO LATER THAN OCTOBER 7, 2016. PLAIN TIFF IS PERMITTED ADDITIONAL TIME IN WHICH TO SERVE DEFENDANT SERGEANT CLARK. THE CLERK OF COURT SHALL ISSUE A DUPLICATE SUMMONS TO THE U.S. MARSHALS SERVICE FOR DEFENDANT CLARK. THE U.S. MARSHALS SERVICE SHALL FURNISH PLAINTIFF WITH A BLANK U.S.M.-285 FORM. PLAINTIFF'S MOTION TO APPOINT COUNSEL, ECF NO. 54, IS DENIED WITHOUT PREJUDICE. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 9/13/16. 9/14/16 ENTERED AND COPIES MAILED TO PRO SE', U.S. MARSHAL, AND E-MAILED.(ky, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________
RONELL SHAMAR NICHOLS,
Plaintiff,
v.

:
:
:
:
DAVID BYRNE, George W. Hill Correctional
:
Facility Warden;
:
CORRECTIONAL OFFICER GOKMAN;
:
CORRECTIONAL OFFICER SABINTINO;
:
CORRECTIONAL OFFICER SERGEANT
:
CLARK;
:
GRIEVANCE COORDINATOR KEVIN M.
:
CONROY;
:
CORRECTIONAL LIEUTENANT MOORE;
:
DEPUTY WARDEN MARIO COLUCCI,
:
Defendants.
:
__________________________________________

No. 15-cv-00527

ORDER
AND NOW, this 13th day of September, 2016, upon consideration of Defendants David
Byrne, Correctional Officer Gokman, Correctional Officer Sabintino, Grievance Coordinator
Kevin M. Conroy, Lieutenant Moore, and Deputy Warden Mario Colucci’s Motion to Dismiss
Plaintiff’s Second Amended Complaint, ECF No. 48, and Plaintiff’s Motion for Appointment of
Counsel, ECF No. 54, and for the reasons set forth in the Memorandum Opinion issued this date,
IT IS ORDERED as follows:
1. Defendants’ Motion to Dismiss, ECF No. 48, is GRANTED in part and DENIED in
part, as follows.
a. Defendants’ Motion to Dismiss Plaintiff’s deliberate indifference claim with
respect to Defendants Gokman and Sabintino is DENIED;

b. Defendants’ Motion to dismiss all claims against Defendant Byrne is
GRANTED. All claims against Defendant Byrne are DISMISSED with
prejudice;
c. Defendants’ Motion to dismiss all claims against Defendants Conroy, Moore, and
Colucci is GRANTED. All claims against Defendants Conroy, Moore, and
Colucci are DISMISSED without prejudice.
2. Plaintiff is permitted LEAVE TO AMEND his Second Amended Complaint only with
respect to his claims against Defendants Conroy, Moore, and Colucci, consistent with the
Memorandum issued this date. If Plaintiff chooses to file a Third Amended Complaint, he
must do so no later than October 7, 2016. 1
3. Plaintiff is permitted additional time in which to serve Defendant Sergeant Clark, as
follows.
a. The Clerk of Court shall issue a duplicate summons to the U.S. Marshals Service for
Defendant Clark;
b. The U.S. Marshals Service shall furnish Plaintiff with a blank USM-285 form;
c. If Plaintiff is aware of the correct address for Defendant Clark, Plaintiff shall provide
this information on the blank USM-285 form that will be mailed to him and return the
form no later than October 14, 2016. If Plaintiff fails to supply this information, the
Court may, without further notice, dismiss Clark without prejudice pursuant to
Federal Rule of Civil Procedure 4(m);
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Plaintiff is advised that “any amended complaint must be complete in all respects. It must
be a new pleading that stands by itself as an adequate complaint without reference to any
documents already filed.” Bowens v. Employees of the Dep’t of Corr., No. 14-2689, 2015 U.S.
Dist. LEXIS 23147, at *28 (E.D. Pa. Feb. 26, 2015). “Each allegation must be simple, concise,
and direct.” Fed. R. Civ. P. 8(d)(1). The complaint should be specific as to conduct, time, place,
and persons responsible. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005).
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d. If Plaintiff supplies an address for Clark, the U.S. Marshals Service shall attempt
service of Plaintiff’s current complaint.
4. Plaintiff’s Motion to Appoint Counsel, ECF No. 54, is DENIED without prejudice.

BY THE COURT:

/s/ Joseph F. Leeson, Jr.___________
JOSEPH F. LEESON, JR.
United States District Judge

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