SMALLS v. GALRONE et al

Filing 9

ORDER GRANTING 1 LEAVE TO PROCEED IN FORMA PAUPERIS. SMALLS SHALL PAY THE FEE IN INSTALLMENTS, ETC. THE CLERK SHALL SEND A COPY TO THE WARDEN OF BUCKS COUNTY CORRECTIONAL FACILITY. THE COMPLAINT IS DEEMED FILED. SMALLSS CLAIMS AGAINST WARDEN DAVID GALIONE AND WARDEN KELLY REED ARE DISMISSED WITHOUT PREJUDICE FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(E)(2)(B)(II) FOR THE REASONS DISCUSSED IN THE COURTS MEMORANDUM. SMALLS IS GIVEN THIRTY (30) DAYS TO FILE AN AMENDED COMPLAIN T IF HE CHOOSES TO DO SO AND IN THE EVENT HE CAN ALLEGE ADDITIONAL FACTS TO REASSERT THE CLAIMS DISMISSED WITHOUT PREJUDICE AGAINST DEFENDANTS WARDEN DAVID GALIONE AND WARDEN KELLY REED. ETC. UPON THE FILING OF AN AMENDED COMPLAINT, THE CLERK SHALL N OT MAKE SERVICE UNTIL SO ORDERED BY THE COURT. ETC. SMALLS MAY ALSO NOTIFY THE COURT THAT HE SEEKS TO PROCEED ON THESE CLAIMS RATHER THAN FILE AN AMENDED COMPLAINT. IF HE FILES SUCH A NOTICE, SMALLS IS REMINDED TO INCLUDE THE CASE NUMBER FOR THIS CAS E, 21-920. THE TIME TO SERVE PROCESS UNDER FEDERAL RULE OF CIVIL PROCEDURE 4(M) IS EXTENDED TO THE DATE 90 DAYS AFTER THE COURT ISSUES SUMMONSES IN THIS CASE IF SUMMONSES ARE ISSUED. ETC.. SIGNED BY HONORABLE C. DARNELL JONES, II ON 4/28/21. 4/28/21 ENTERED. BUCKS COUNTY WARDEN AND PRO SE PLAINTIFF NOT MAILED. (va, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDRE SMALLS,
Plaintiff,
v.
WARDEN DAVID GALIONE, et al.
Defendant.

:
:
:
:
:
:
:

CIVIL ACTION NO. 21-CV-0902

ORDER
AND NOW, this 28th day of April, 2021, upon consideration of Plaintiff Andre Smalls’s
Motion to Proceed In Forma Pauperis (ECF No. 1), his Affidavit in support thereof (ECF No. 7),
and his pro se Complaint (ECF No. 2), it is ORDERED that:
1.

Leave to proceed in forma pauperis is GRANTED pursuant to 28 U.S.C. § 1915.1

2.

Andre Smalls, #119378, shall pay the full filing fee of $350 in installments,

pursuant to 28 U.S.C. § 1915(b), regardless of the outcome of this case. The Court directs the
Warden of the Bucks County Correctional Facility or other appropriate official to assess an
initial filing fee of 20% of the greater of (a) the average monthly deposits to Smalls’s inmate
account; or (b) the average monthly balance in Smalls’s inmate account for the six-month period
immediately preceding the filing of this case. The Warden or other appropriate official shall
calculate, collect, and forward the initial payment assessed pursuant to this Order to the Court
with a reference to the docket number for this case. In each succeeding month when the amount
in Smalls’s inmate trust fund account exceeds $10.00, the Warden or other appropriate official

1

Smalls has set forth the steps taken in an effort to secure his prisoner account statement. (ECF
No. 7). Although he has not been able to obtain a certified copy of his prisoner account
statement for the time period from August 25, 2020 through February 25, 2021, this Court finds
that Smalls has substantially complied with the directives of 28 U.S.C. § 1915(a)(2) and will
permit him to proceed in forma pauperis in this matter.

shall forward payments to the Clerk of Court equaling 20% of the preceding month’s income
credited to Smalls’s inmate account until the fees are paid. Each payment shall refer to the
docket number for this case.
3.

The Clerk of Court is directed to SEND a copy of this Order to the Warden of the

Bucks County Correctional Facility.
4.

The Complaint is DEEMED filed.

5.

Smalls’s claims against Warden David Galione and Warden Kelly Reed are

DISMISSED WITHOUT PREJUDICE for failure to state a claim pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) for the reasons discussed in the Court’s Memorandum.
6.

Smalls is given thirty (30) days to file an amended complaint if he chooses to do

so and in the event he can allege additional facts to reassert the claims dismissed without
prejudice against Defendants Warden David Galione and Warden Kelly Reed. Any amended
complaint must identify all defendants in the caption of the amended complaint in addition to
identifying them in the body of the amended complaint, shall state the basis for Smalls’s claims
against each defendant, and shall bear the title “Amended Complaint” and the case number 21902. If Smalls files an amended complaint, his amended complaint must be a complete
document that includes all of the bases for Smalls’s claims, including claims that the Court
has not yet dismissed if he seeks to proceed on those claims. Claims that are not included in
the amended complaint will not be considered part of this case. If Smalls chooses to draft an
amended complaint, he should be mindful of the Court’s reasons for dismissing his claims
against Warden David Galione and Warden Kelly Reed as explained in the Court’s
Memorandum. Upon the filing of an amended complaint, the Clerk shall not make service until
so ORDERED by the Court.

7.

Should Smalls choose not to file an amended complaint and stand on his

Complaint as originally submitted, the Court will direct service of his Complaint and ONLY his
claims against Dr. Cassidy and Dr. K/Jane Doe.
8.

Smalls may also notify the Court that he seeks to proceed on these claims rather

than file an amended complaint. If he files such a notice, Smalls is reminded to include the case
number for this case, 21-920.
9.

The time to serve process under Federal Rule of Civil Procedure 4(m) is

EXTENDED to the date 90 days after the Court issues summonses in this case if summonses are
issued.

BY THE COURT:

/s/ C. Darnell Jones, II
C. Darnell Jones, II J.