HENRY v. KERSCHNER et al

Filing 6

ORDER THE APPLICATION TO PROCEED IN FORMA PAUPERIS (DOC. NO. 3) IS GRANTED AND THE PLAINTIFF HAS LEAVE TO PROCEED IN FORMA PAUPERIS, ETC. THE CLERK OF COURT IS DIRECTED TO SEND A COPY OF THIS ORDER TO THE SUPERINTENDENT OF SCI SMITHFIELD. THE CO MPLAINT IS DISMISSED AS OUTLINED HEREIN. PLAINTIFF IS GIVEN LEAVE TO FILE AN AMENDED COMPLAINT WITHIN THIRTY (30) DAYS. THE CLERK OF COURT SHALL NOT MAKE SERVICE UNTIL SO ORDERED. THE CLERK OF COURT IS DIRECTED TO SEND THE PLAINTIFF A BLANK FORM COM PLAINT TO BE USED BY A PRISONER FILING A CIVIL RIGHTS ACTION BEARING THE CIVIL ACTION NUMBER FOR THIS CASE, ETC. SIGNED BY HONORABLE EDWARD G. SMITH ON 5/4/18. 5/4/18 ENTERED AND COPIES MAILED TO PLAINTIFF WITH BLANK FORM, MAILED TO SUPERINTENDENT.(er, ) Modified on 5/4/2018 (lisad, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DWAYNE HENRY,

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Plaintiff,
v.
KERRY KERSCHNER, CYNTHIA LINK,
and DARINA VARINA,
Defendants.

CIVIL ACTION NO. 18-1737

ORDER
AND NOW, this 4th day of May, 2018, after considering the application to proceed in
forma pauperis, prisoner trust fund account statement, and proposed complaint filed by the pro
se plaintiff, Dwayne Henry (Doc. Nos. 1, 3, 4); and for the reasons set forth in the separately
filed memorandum opinion; accordingly, it is hereby ORDERED as follows:
1.

The application to proceed in forma pauperis (Doc. No. 3) is GRANTED and the

plaintiff has leave to proceed in forma pauperis;
2.

The plaintiff, Dwayne Henry, #GY-8569, shall pay the full filing fee of $350.00

in installments, pursuant to 28 U.S.C. § 1915(b). Based on the financial information provided by
the plaintiff, an initial partial filing fee of $14.84 is assessed. The superintendent or other
appropriate official at SCI – Smithfield or at any other prison at which the plaintiff may be
incarcerated is directed to deduct $14.84 from the plaintiff’s inmate trust fund account, when
such funds become available, and forward that amount to the Clerk of the United States District
Court for the Eastern District of Pennsylvania, 601 Market Street, Room 2609, Philadelphia, PA
19106, to be credited to Civil Action No. 18-1737. After the initial partial filing fee is collected
and until the full filing fee is paid, the superintendent or other appropriate official at SCI –

Smithfield or at any other prison at which the plaintiff may be incarcerated, shall deduct from the
plaintiff’s account, each time that the plaintiff’s inmate trust fund account exceeds $10, an
amount no greater than 20 percent of the money credited to his account during the preceding
month and forward that amount to the clerk of the court at the address provided above to be
credited to Civil Action No. 18-1737;
3.

The clerk of court is DIRECTED to send a copy of this order to the

superintendent of SCI – Smithfield;
4.

The complaint is DISMISSED as follows:
a.

The plaintiff’s official capacity claims against the defendants are

DISMISSED WITHOUT PREJUDICE;
b.

The plaintiff’s claims based on the Prison Rape Elimination Act are

DISMISSED WITH PREJUDICE; and
c.

The

plaintiff’s

deliberate

indifference

claims

are

DISMISSED

WITHOUT PREJUDICE to amendment in accordance with paragraph five (5) of this order;
5.

The plaintiff is given leave to file an amended complaint within thirty (30) days of

the date of this order. If the plaintiff files an amended complaint, he shall name all defendants in
the caption of the amended complaint in addition to the body of the amended complaint and state
how each defendant was responsible for violating his rights. Any amended complaint must be a
complete document that does not rely on the plaintiff’s initial complaint and exhibits to state a
claim. Upon the filing of an amended complaint, the clerk of court shall not make service until
so ordered by the court;
6.

The clerk of court is DIRECTED to send the plaintiff a blank form complaint to

be used by a prisoner filing a civil rights action bearing the civil action number for this case; and

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7.

If the plaintiff fails to timely file an amended complaint in accordance with

paragraph five (5) of this order, the court may dismiss his case for failure to prosecute without
further notice to him.
BY THE COURT:

_/s/ Edward G. Smith___
EDWARD G. SMITH, J.

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