Carr v. Borden et al

Filing 12

ORDER (memorandum filed previously as separate docket entry). IT IS HEREBY ORDERED THAT: 1. Plaintiff's motion for leave to proceed in forma pauperis 2 is GRANTED. SEE ORDER FOR COMPLETE DETAILS. Signed by Honorable Malachy E Mannion on 9/25/2024. (ktt)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
CODY ALLEN CARR,
Plaintiff
v.

:
: CIV. ACTION NO. 3:24-CV-1085
:

SEAN BORDEN, et al.,
Defendants

(JUDGE MANNION)

:
:
ORDER

In accordance with the Memorandum issued this date, IT IS HEREBY
ORDERED THAT:
1.

Plaintiff’s motion for leave to proceed in forma pauperis (Doc.
2) is GRANTED.

2.

Plaintiff shall pay the full filing fee of $350.00 based on the
financial information provided in the application to proceed in
forma pauperis. The full filing fee shall be paid regardless of
the outcome of the litigation. Pursuant to 28 U.S.C. 1915(b)(1)
and (2), the Superintendent/Warden, or other appropriate
official at plaintiff’s place of confinement, is directed to deduct
an initial partial filing fee of 20% or the greater of:

3.

The average monthly deposits in the inmate’s prison account
for the past six months, or

4.

The average monthly balance in the inmate’s prison account for
the past six months.

5.

The initial partial filing fee shall be forwarded to the Clerk of the
United States District Court for the Middle District of

Pennsylvania, P.O. Box 1148, 235 N. Washington Avenue,
Scranton, Pennsylvania, 18501-1148, to be credited to the
above-captioned docket number. In each succeeding month,
when the amount in plaintiff’s inmate trust fund account
exceeds $10.00, the Superintendent/Warden, or other
appropriate official, shall forward payments to the Clerk of Court
equaling 20% of the preceding month’s income credited to
plaintiff’s inmate trust fund account until the fees are paid. Each
payment shall reference the above-captioned docket number.
6.

The Clerk of Court is DIRECTED to send a copy of this order to
the Superintendent/Warden of the institution where plaintiff is
presently confined.

7.

Plaintiff’s claims alleging that defendants failed to protect him
from harm by inmate D.S. and defendant Hinkle are
DISMISSED as misjoined in violation of Rule 20 without
prejudice to plaintiff’s right to refile the claims in new lawsuits.

8.

Plaintiff’s claim alleging interference with his mail is SEVERED
from this case. The Clerk of Court is directed to open a new
case with respect to this claim. The caption of this new case
shall be Carr v Cuffaro, et al. This order shall be docketed as
Doc. 1 in the new case. No complaint shall be docketed in the
new case at this time. The undersigned shall be assigned as
the presiding judge in the new case.

9.

Upon docketing the new case with respect to the severed claim,
the Clerk of Court is directed to issue a 30-day administrative
order in the new case requiring plaintiff to either pay the
requisite filing fee or move for leave to proceed in forma
pauperis within thirty days. Failure to comply with the terms of
the 30-day administrative order will result in dismissal of the
case without prejudice.

10.

Plaintiff is directed to file an amended complaint in the new case
within sixty (60) days of this order. Factual allegations in the
amended complaint shall be limited to plaintiff’s claim alleging
interference with his mail.

11.

Failure to file an amended complaint in the new case will result
in dismissal of the case without prejudice.

12.

Plaintiff’s claims against defendant Kothe alleging violation of a
Protection from Abuse order or violation of Department of
Corrections policy are DISMISSED WITH PREJUDICE.

13.

Plaintiff’s deliberate indifference claim against defendant Kothe
is DISMISSED WITHOUT PREJUDICE.

14.

Within thirty (30) days of the date of this order, plaintiff may file
an amended complaint with respect to his deliberate
indifference claim against defendant Kothe.

15.

Any amended complaint filed pursuant to this order shall be filed
to the same docket number as the instant action, shall be
entitled “Amended Complaint,” and shall be complete in all
respects. It shall be a new pleading that stands by itself as an
adequate complaint under the Federal Rules of Civil Procedure.

16.

The Clerk of Court is directed to mail plaintiff a civil rights
complaint form with this order.

17.

If plaintiff fails to file an amended complaint, his deliberate
indifference claim against defendant Kothe will be dismissed
with prejudice for the reasons stated in the accompanying
memorandum, and this case will be closed.

18.

Plaintiff’s motion for leave to amend (Doc. 10) is DENIED AS
MOOT.

s/ Malachy E. Mannion

Malachy E. Mannion
United States District Judge
Dated:

September 25, 2024

24-1085-01-order