PLAZA v. PRESBURY et al

Filing 9

ORDER OF 1/17/23 THAT LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED. ETC. THE CLERK OF COURT IS DIRECTED TO SEND A COY OF THIS ORDER TO THE WARDEN OF LANCASTER COUNTY PRISON. THE COMPLAINT IS DEEMED FILED. THE FOLLOWING CLAIMS IN THE COMPLAINT ARE DI SMISSED 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. a. ALL OFFICIAL CAPACITY CLAIMS ASSERTED AGAINST LPN TANASIYA PRESBURY AND RN BRYAN ARE DISMISSED WITH PREJUDICE. b. A LL OFFICIAL CAPACITY AND INDIVIDUAL CAPACITY CLAIMS ASSERTED AGAINST MR. SORENTINO AND MR. TENUTO AND THE INDIVIDUAL CAPACITY CLAIMS ASSERTED AGAINST BRYAN ARE DISMISSED WITHOUT PREJUDICE. THE CLERK OF COURT IS DIRECTED TO SEND PLAZA A BLANK COPY OF THE COURT'S STANDARD FORM FOR PRISONS TO USE IN FILING OF A COMPLAINT BEARING THE ABOVE CIVIL ACITON NUMBER. ETC. PLAZA IS GIVEN 30 DAYS TO FILE AN AMENDED COMPLAINT IN THE EVENT HE CAN ALLEGE ADDITIONAL FACTS TO STATE A PLAUSIBLE DELIBERATE IN DIFFERENCE CLAIMS AGIANST SERGEANT SORENTINO, SERGEANT TENUTO, OR RN BRYAN. ETC. IF PLAZA DOES NOT FILE AN AMENDED COMPLAINT THE COURT WILL DIRECT SERVIE OF HIS INITIAL COMPLAINT ON DEFENDANT TANASIYA PRESUBRY ONLY. ETC. THE TIME TO SERVE PROCESS UND ER FRCP 4(m) IS EXTENDED TO THE DATE 90 DAYS AFTER THE COURT ISSUES SUMMONSES IN THIS CASE IF SUMMONSES ARE ISSUED. SIGNED BY JUDGE: JOSEPH F. LEESON JR ON 1/17/23. 1/17/23 ENTERED. (DT) (COPY NOT MAILED TO PRO SE) (COPY E-MAILED TO WARDEN OF LANCASTER COUNTY PRISON)

Case 5:22-cv-04587-JFL Document 9 Filed 01/17/23 Page 1 of 3

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
JOEL PLAZA, JR.,
Plaintiff,
v.
TANASIYA PRESBURY, et al.
Defendants.

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CIVIL ACTION NO. 22-cv-4587

ORDER
AND NOW, this 17th day of January, 2023, upon consideration of Plaintiff Joel Plaza,
Jr.’s Motion to Proceed In Forma Pauperis (ECF No. 6), Prisoner Trust Fund Account Statement
(ECF No. 7), and pro se Complaint (ECF No. 1), it is ORDERED that:
1.

Leave to proceed in forma pauperis is GRANTED pursuant to 28 U.S.C. § 1915.

2.

Joel Plaza, Jr., #13-4607, 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 Lancaster County Prison or other appropriate official to assess an initial filing fee of
20% of the greater of (a) the average monthly deposits to Plaza’s inmate account; or (b) the
average monthly balance in Plaza’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 Plaza’s inmate
trust fund account exceeds $10.00, the Warden or other appropriate official shall forward
payments to the Clerk of Court equaling 20% of the preceding month’s income credited to
Plaza’s inmate account until the fees are paid. Each payment shall refer to the docket number for
this case.

Case 5:22-cv-04587-JFL Document 9 Filed 01/17/23 Page 2 of 3

3.

The Clerk of Court is DIRECTED to send a copy of this Order to the Warden of

Lancaster County Prison.
4.

The Complaint is DEEMED filed.

5.

The following claims in the Complaint are DISMISSED 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:
a. All official capacity claims asserted against LPN Tanasiya Presbury and RN
Bryan are DISMISSED WITH PREJUDICE.
b. All official capacity and individual capacity claims asserted against Mr.
Sorentino and Mr. Tenuto and the individual capacity claims asserted against
Bryan are DISMISSED WITHOUT PREJUDICE.
6.

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

standard form complaint for prisoners to use to file a complaint bearing the above civil action
number.1
7.

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

allege additional facts to state a plausible deliberate indifference claim against Sergeant
Sorentino, Sergeant Tenuto, or RN Bryan. 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 Plaza’s claims against each defendant, and shall bear
the title “Amended Complaint” and the case number 22-4587. If Plaza files an amended
complaint, his amended complaint must be a complete document that includes all of the bases for

This form is available on the Court’s website at
http://www.paed.uscourts.gov/documents/forms/frmc1983f.pdf.
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Case 5:22-cv-04587-JFL Document 9 Filed 01/17/23 Page 3 of 3

Plaza’s claims, including claims that the Court has not yet dismissed if he seeks to proceed on
those claims. For example, Plaza must include in his amended complaint the allegations
supporting his denial of medical care claim against Tanasiya Presbury, which has not been
dismissed at this time, if Plaza seeks to proceed on that claim. Claims that are not included in
the amended complaint will not be considered part of this case. When drafting his amended
complaint, Plaza 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 Plaza does not file an amended complaint the Court will direct service of his

initial Complaint on Defendant Tanasiya Presbury only. Plaza may also notify the Court that he
seeks to proceed on the claim against Presbury rather than file an amended complaint. If he files
such a notice, Plaza is reminded to include the case number for this case, 22-4587.
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/ Joseph F. Leeson, Jr.
JOSEPH F. LEESON, JR.
United States District Judge

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