Montalban v. Powell et al

Filing 15

MEMORANDUM re MOTION for Leave to Proceed ifp 6 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 4/7/17. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSE MONTALBAN,
Plaintiff
vs.
MR. POWELL, et al.,
Defendants

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CIVIL NO. 1:CV-17-0212
(Judge Caldwell)

MEMORANDUM
I.

Introduction
The pro se plaintiff, Jose Montalban, a federal inmate formerly housed at

USP-Canaan in Waymart, Pennsylvania, filed this civil-rights action. He alleges that USPCanaan employees used excessive force to subdue him after he assaulted a staff member
and that he was then denied medical care and food.1 He also alleges his legal materials
were lost or stolen when he was transported to federal court to appear on criminal assault
charges. (ECF No. 1, Compl.) Named as defendants are twelve individuals who work at
USP Canaan: Lt. Powell; Verbyla Williams; Jason Glossenger; Patricia Burgerholff, RN;
Corrections Officer (CO) Modroff; Walter Dobushak, MD; Emergency Medical Technician
(EMT) M. Kabonick; Jarrett Tuttle; Lt. Anthony Pedone; Food Service Supervisor Mark
Brennan; and Cory Vrabel. (Id.)
Montalban has filed several motions: (1) a motion to proceed in forma
pauperis (ECF No. 6); (2) a motion to accept documents as exhibits in the case (ECF No.
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Montalban is presently housed at FCI-Coleman in Coleman, Florida.

12); and (3) a motion to file an amended Complaint (ECF No. 14). For the reasons that
follow, Plaintiff’s motion to file an amended complaint will be granted. His motion to
proceed in forma pauperis will also be granted. His motion to accept documents as exhibits
in the case will be dismissed as moot.

II.

Discussion
Plaintiff’s Complaint was docketed on February 3, 2017. His motion to file an

amended complaint seeks to add new defendants and “change some legal claim[s] in order
to avoid the Complaint dismissed.” (ECF No. 14). The court has not yet screened the
Complaint to determine if it should be served. At this early stage of the litigation, we will
therefore grant the motion to file an amended complaint. See Fed. R. Civ. P. 15(a)(1).
Since we will allow an amended complaint, we will dismiss as moot the motion to accept
documents as exhibits as Plaintiff will have the opportunity to attach documents as exhibits
to his amended complaint.
Montalban is advised that his amended complaint must contain the same
docket number as the instant action and should be labeled “Amended Complaint.” In
addition, the "amended complaint must be complete in all respects. It must be a new
pleading which stands by itself as an adequate complaint without reference to the
complaint already filed." Young v. Keohane, 809 F. Supp. 1185, 1198 (M.D. Pa. 1992).
Montalban is cautioned that any amended complaint he may file supersedes the original
complaint and must be “retyped or reprinted so that it will be complete in itself including

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exhibits.” M.D. Pa. LR 15.1. Consequently, all causes of action alleged in the original
complaint which are not alleged in the amended complaint are waived.
Montalban is also warned that his amended complaint must be concise and
direct. See Fed. R. Civ. P. 8(d). Each allegation must be set forth in an individually
numbered paragraphs in short, concise and simple statements. Id. The allegations should
be specific enough as to time and place, and should identify the specific person or persons
responsible for the deprivation of his constitutional rights and what each individual did that
led to deprivation of his rights. Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 1948,
173 L.Ed.2d 868 (2009). He must also specify the relief he seeks with regard to each
claim. Montalban’s failure to file an appropriate amended complaint by the deadline set by
the court will result in the court’s proceeding on the original complaint, and against only
those defendants definitively identifiable and associated with claims in that complaint.
Montalban is also cautioned that illegible submissions will be returned to him without
consideration and that he should double-space his text to facilitate the ability to read it.
An appropriate order follows.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge

Date: April 7, 2017

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