Sears v. McCoy et al

Filing 6

ORDER (memorandum filed previously as separate docket entry),IT IS ORDERED THAT:1. Plaintiffs motion 2 to proceed in forma pauperis is construed as a motion to proceed without full prepayment of the filing fee and is GRANTED; 2. All claims set fort h against Defendants Peters, Eveland, Carpentier, Sciochitana, and Varner are DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) without leave to file an amended complaint, as the Court finds that such amendment would be futile. The Clerk of Court shall terminate these Defendants from this action; 3. Plaintiffs verbal abuse claim against Defendant McCoy is DISMISSED WITH PREJUDICE; 4. Defendants Baumbach and Luscavage are DISMISSED WITHOUT PREJUDICE and Plaintiff is granted thirty (30) days leave to amend in accordance with the accompanying Memorandum; 5. Plaintiff is granted leave to file an amended complaint within thirty (30) days from the date of this Order...6. The Court will defer service of the complaint for thir ty (30) days. If Plaintiff files an amended complaint, it will supersede the original complaint as set forth above. If Plaintiff fails to file an amended complaint within thirty (30) days of the date hereof, the Court will direct service of the original complaint on remaining Defendant McCoy. Signed by Honorable Yvette Kane on 9/12/17. (rw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RICHARD SEARS,
Plaintiff

:
:
:
:
:
:
:

v.
DONTE MCCOY, et al.,
Defendants

No. 1:17-CV-00869
(Judge Kane)

ORDER

AND NOW, this 12th day of September, 2017, in accordance with the accompanying
Memorandum, IT IS ORDERED THAT:
1. Plaintiff’s motion to proceed in forma pauperis (Doc. No. 2) is construed as a motion
to proceed without full prepayment of the filing fee and is GRANTED;
2. All claims set forth against Defendants Peters, Eveland, Carpentier, Sciochitana, and
Varner are DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) without leave to file an amended complaint, as the Court finds that
such amendment would be futile. The Clerk of Court shall terminate these
Defendants from this action;
3. Plaintiff’s verbal abuse claim against Defendant McCoy is DISMISSED WITH
PREJUDICE;
4. Defendants Baumbach and Luscavage are DISMISSED WITHOUT PREJUDICE
and Plaintiff is granted thirty (30) days leave to amend in accordance with the
accompanying Memorandum;
5. Plaintiff is granted leave to file an amended complaint within thirty (30) days from
the date of this Order. If Plaintiff elects to file an amended complaint, Plaintiff is
advised to adhere to the standards set forth in the Federal Rules of Civil Procedure
and the directives set forth by this Court in its accompanying Memorandum.
Specifically, the amended complaint must be complete in all respects. It must be a
new pleading which stands by itself without reference to the original complaint or any
other documents already filed. The amended complaint should set forth Plaintiff’s
claims in short, concise and plain statements as required by Rule 8 of the Federal
Rules of Civil Procedure. Each paragraph should be numbered. The amended
complaint should specify which actions are alleged as to which defendants and

sufficiently allege personal involvement of the defendant in the acts which Plaintiff
claims violated his rights. Mere conclusory allegations will not set forth cognizable
claims. Importantly, should Plaintiff elect to file an amended complaint, he must replead every cause of action in the amended complaint that the Court has found to be
adequately pled in the current complaint because the amended complaint will
supersede the original complaint. See Knight v. Wapinsky, No. 12-CV-2023, 2013
WL 786339, at *3 (M.D. Pa. March. 1, 2013) (stating that an amended complaint
super cedes the original complaint). Because an amended complaint supersedes the
original pleading, all causes of action alleged in the original complaint which are not
alleged in an amended complaint are waived. Id. (citations omitted); and
6. The Court will defer service of the complaint for thirty (30) days. If Plaintiff files an
amended complaint, it will supersede the original complaint as set forth above. If
Plaintiff fails to file an amended complaint within thirty (30) days of the date hereof,
the Court will direct service of the original complaint on remaining Defendant
McCoy.

s/Yvette Kane
Yvette Kane, District Judge
United States District Court
Middle District of Pennsylvania