HURD v. PENNSYLVANIA DEPT OF CORRECTIONS et al

Filing 6

ORDER THAT UPON CONSIDERATION OF PLAINTIFF SCOTT MICHAEL HURDS MOTION TO PROCEED IN FORMA PAUPERIS (ECF NO. 1), PRISONER TRUST FUND ACCOUNT STATEMENT (ECF NO. 3), AND PRO SE COMPLAINT (ECF NO. 2), IT IS ORDERED THAT: LEAVE TO PROCEED IN FORMA PAUP ERIS IS GRANTED. SCOTT MICHAEL HURD, #QF-9299, SHALL PAY THE FULL FILING FEE OF $350 IN INSTALLMENTS. THE CLERK OF COURT IS DIRECTED TO SEND A COPY OF THIS ORDER TO THE SUPERINTENDENT OF SCI-PHOENIX. THE COMPLAINT IS DEEMED FILED. HURDS CLAIM S BROUGHT PURSUANT TO 42 U.S.C. § 1983 ARE DISMISSED IN PART WITH PREJUDICE AND IN PART WITHOUT PREJUDICE AS OUTLINED HEREIN. THE CLERK OF COURT IS DIRECTED TO SEND HURD A BLANK COPY OF THE COURTS STANDARD FORM COMPLAINT FOR PRISONERS TO USE TO FILE AN AMENDED COMPLAINT BEARING THE ABOVE CIVIL ACTION NUMBER. UPON THE FILING OF AN AMENDED COMPLAINT, THE CLERK SHALL NOT MAKE SERVICE UNTIL SO ORDERED BY THE COURT. THE TIME TO SERVE PROCESS UNDER FEDERAL RULE OF CIVIL PROCEDURE 4(m) IS EXTE NDED TO THE DATE 90 DAYS AFTER THE COURT ISSUES SUMMONSES IN THIS CASE IF SUMMONSES ARE ISSUED.. SIGNED BY HONORABLE C. DARNELL JONES, II ON 4/27/2021. 4/27/2021 ENTERED AND COPIES NOT MAILED TO PRO SE. COPY OF MEMO AND ORDER FAXED TO SUPERINTENDENT OF SCI-PHOENIX. (sg, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA SCOTT MICHAEL HURD, Plaintiff, v. PENNSYLVANIA DEPT. OF CORRECTIONS, et al., Defendants. : : : : : : : : CIVL ACTION NO. 21-CV-1729 ORDER AND NOW, this 27th day of April, 2021, upon consideration of Plaintiff Scott Michael Hurd’s Motion to Proceed In Forma Pauperis (ECF No. 1), Prisoner Trust Fund Account Statement (ECF No. 3), and 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. 2. Scott Michael Hurd, #QF-9299, 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 Superintendent of SCI-Phoenix or other appropriate official to assess an initial filing fee of 20% of the greater of (a) the average monthly deposits to Hurd’s inmate account; or (b) the average monthly balance in Hurd’s inmate account for the six-month period immediately preceding the filing of this case. The Superintendent 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 Hurd’s inmate trust fund account exceeds $10.00, the Superintendent or other appropriate official shall forward payments to the Clerk of Court equaling 20% of the preceding month’s income credited to Hurd’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 Superintendent of SCI-Phoenix. 4. The Complaint is DEEMED filed. 5. Hurd’s claims brought pursuant to 42 U.S.C. § 1983 are DISMISSED IN PART WITH PREJUDICE AND IN PART WITHOUT PREJUDICE as follows: a. All § 1983 claims against Defendant Pennsylvania Department of Corrections are DISMISSED WITH PREJUDICE. b. All other § 1983 claims are DISMISSED WITHOUT PREJUDICE for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for the reasons stated in the Court’s Memorandum. 6. The Clerk of Court is directed to SEND Hurd a blank copy of the Court’s standard form complaint for prisoners to use to file an amended complaint bearing the above civil action number. 1 7. Hurd is given thirty (30) days to file an amended complaint in the event he can allege additional facts to state a plausible claim pursuant to § 1983. Any amended complaint shall 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 Hurd’s claims against each defendant, and shall bear the title “Amended Complaint” and the case number 21-1729. If Hurd files an amended complaint, his amended complaint must be a complete document that includes all of the bases for Hurd’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 1 This form is available on the Court’s website at http://www.paed.uscourts.gov/documents/forms/frmc1983f.pdf. 2 will not be considered part of this case. When drafting his amended complaint, Hurd should be mindful of the Court’s reasons for dismissing his claims 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. 8. If Hurd does not file an amended complaint, the Court will direct service of his initial Complaint on the Pennsylvania Department of Corrections only so that he may proceed on his claim brought pursuant to Title II of the Americans with Disabilities Act as described in the Court’s Memorandum. Hurd may also notify the Court that he seeks to proceed on this claim rather than file an amended complaint. If he files such a notice, Hurd is reminded to include the case number for this case, 21-1729. 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. 3

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