McCarthy v. Ebbert et al

Filing 9

MEMORANDUM re pltf's MOTION for Leave to Proceed IFP 8 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 5/23/17. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN J. McCARTHY,
Plaintiff
vs.
WARDEN EBBERT, et al.,
Defendants

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CIVIL NO. 1:CV-17-0397
(Judge Caldwell)

MEMORANDUM
I.

Introduction
Plaintiff, John McCarthy, a former federal inmate, initiated this action on

February 23, 2017, while housed at the United States Penitentiary in Lewisburg,
Pennsylvania.1 (ECF No. 1, Compl.) Presently before the Court is McCarthy’s motion for
leave to proceed in forma pauperis. (ECF No. 8).
For the reasons that follow, McCarthy’s motion will be denied without
prejudice. McCarthy will have fourteen days to file a correct application to proceed in forma
pauperis or pay the entire filing fee. His failure to do either will result in his action being
dismissed without prejudice.

II.

Discussion
A “prisoner” is defined in the statute as “any person incarcerated or detained

in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for,

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McCarthy is no longer incarcerated and presently resides in Connecticut. (ECF No. 5).

violations of criminal laws or the terms and conditions of parole . . .” 28 U.S.C. § 1915A(c)
(emphasis added). If a plaintiff is a prisoner at the time of filing the complaint, the Prison
Litigation Reform Act (PLRA) and its in forma pauperis statute applies. Ahmed v.
Dragovich, 297 F.3d 201, 210 (3d Cir. 2002).
In this matter, McCarthy was erroneously sent a copy of an in forma
pauperis application for a non-inmate. Because McCarthy was a prisoner when he filed his
Complaint, the Clerk of Court shall be directed to furnish him with a blank copy of this
Court’s current standard prisoner in forma pauperis form. If Plaintiff seeks to proceed with
this case in forma pauperis, he shall complete the form and return it to the Clerk of Court
within fourteen days. He must also include a certified copy of his inmate trust fund account
for the 6-month period immediately proceeding the filing of the complaint. See 28 U.S.C. §
1915(a)(2). If McCarthy does not wish to proceed in form pauperis in this matter, he may
forward the complete filing fee to the Clerk of Court within fourteen days. Failure to either
submit a complete inmate in forma pauperis application or the complete filing fee within
fourteen days will result in the dismissal of this action.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge
Date: May 23, 2017

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