RICE v. KARASTON et al

Filing 7

MEMORANDUM AND ORDER THAT LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED AS OUTLINED HEREIN. CLERK OF COURT IS DIRECTED TO SEND A COPY OF THIS ORDER TO THE SUPERINTENDENT OF SCI PHOENIX. COMPLAINT IS DISMISSED IN PART WITH PREJUDICE AND DISMISSED IN PART WITHOUT PREJUDICE AS OUTLINED HEREIN. CLEKR OF COURT SHALL SEND RICE A PRISONER CIVIL RIGHTS COMPLAINT BEARING CASE NUMBER, ETC. SIGNED BY DISTRICT JUDGE KELLEY BRISBON HODGE ON 6/5/24. 6/5/24 ENTERED AND COPIES NOT MAILED TO PRO SE. (rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TIMOTHY RICE,
Plaintiff,
v.
C/O KARASTON, et al.
Defendants.

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CIVIL ACTION NO. 24-CV-1501

ORDER
AND NOW, this 5th day of June, 2024, upon consideration of Plaintiff Timothy Rice’s
Motion to Proceed In Forma Pauperis (ECF No. 1), his letter in support thereof (ECF No. 5),
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.

Timothy Rice, # DV-2363, 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 Rice’s inmate account; or (b) the average
monthly balance in Rice’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 Rice’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 Rice’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.

The Complaint is DISMISSED IN PART WITH PREJUDICE and

DISMISSED IN PART 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, as follows:
a. The official capacity claims are DISMISSED WITH PREJUDICE.
b. The remaining claims, except for the excessive force claim against
Correctional Officer Karaston in his individual capacity, are DISMISSED
WITHOUT PREJUDICE.
6.

Rice is given thirty (30) days to file an amended complaint in the event he can

allege additional facts to state plausible claims for the claims that have been dismissed without
prejudice. If Rice files an amended complaint, his amended complaint must be a complete
document that includes the factual basis for each of Rice’s claims, including claims that the
Court has not yet dismissed if he seeks to proceed on those claims. This means that if Rice
files an amended complaint, he must include allegations related to his excessive force claim
against Correctional Officer Karaston, which has not been dismissed, if he seeks to proceed
on that claim. Claims that are not included in the amended complaint will not be
considered part of this case because the amended complaint becomes the pleading upon
which the case will proceed. 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 Rice’s claims against each defendant, and shall bear the title
“Amended Complaint” and the case number 24-1501. When drafting his amended complaint,

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Rice 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.
7.

The Clerk of Court is DIRECTED to send Rice a blank copy of the Court’s form

complaint for a prisoner filing a civil rights action bearing the above civil action number. Rice
may use this form to file his amended complaint if he choses to do so.
8.

If Rice does not file an amended complaint, the Court will direct service of his

Complaint on Defendant Correctional Officer Karaston only. Rice may also notify the Court that
he seeks to proceed only on this excessive force claim, rather than file an amended complaint. If
he files such a notice, Rice is reminded to include the case number for this case, 24-1501.
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/ Hon. Kelley B. Hodge
KELLEY BRISBON HODGE, J.

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