WILSON v. HOERNER et al

Filing 48

ORDER: Pursuant to this Court's Order from 9/30/2014 (ECF No. 47 ) and Federal Rule of Civil Procedure 4(m), Donald M Styles is DISMISSED WITHOUT PREJUDICE from this lawsuit. Further, Plaintiff's attempt to add Danielle Hibberd as a party to this action is ineffective. Signed by Magistrate Judge Cynthia Reed Eddy on 10/31/2014. (bap)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PHILBERT WILSON,
Plaintiff,
v.
STATE OF PENNSYLVANIA;
DENNIS HOERNER, Probation
Officer; BRIAN COVERT, warden;
MARY ROSETTA, Case manager for
Probation and parole; CITY OF NEW
CASTLE POLICE DEPARTMENT,
Unknown New Castle Police officers;
BERTH GREAR, Probation Officer;
PENNSYLVANIA BOARD OF
PROBATION AND PAROLE;
DONALD M STYLES, Deputy Director,
Pennsylvania Board of Probation
and Parole
Defendants.

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Civil Action No. 13-1529

United States Magistrate Judge
Cynthia Reed Eddy

ORDER
On September 30, 2014, the Court ordered that on or before October 14, 2014, Plaintiff
had to provide the Court with proper instructions for service upon the three Defendants added to
the Second Amended Complaint: (1) Bert Brear, Probation Officer; (2) Pennsylvania Board of
Probation and Parole; and (3) Donald M Styles, Deputy Director, Pennsylvania Board of
Probation and Parole. (ECF No. 47). In a footnote, the Court noted that two of these Defendants
appeared differently in the caption than they did in the body of the Second Amended Complaint,
and charged Plaintiff with making sure the proper Defendants are served. (Id. at n. 3). Plaintiff
was advised that “[f]ailure to provide the correct names will be deemed an insufficient excuse by
the Court if they are not served, and they will be dismissed from the action without prejudice.”
(Id.). Likewise, the body of the order stated: “IT IS FURTHER ORDERED that failure to
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comply with this Order as to any of these Defendants will result in that Defendant being
dismissed from the action without prejudice.”
The Court mailed Plaintiff the appropriate forms to effectuate service, and instructed him
to complete and return them. The Court received said forms from Plaintiff. The returned forms
contained appropriate information for Defendants Grear and the Pennsylvania Board of
Probation and Parole. However, Plaintiff did not provide the Court with any information for
Defendant Styles, and instead provided information for Danielle Hibberd. Thus, in accordance
with this Court’s Order from September 30, 2014 as well as Federal Rule of Civil Procedure
4(m), Defendant Styles is dismissed without prejudice from this lawsuit.
The Court notes that in addition to providing the Court with Danielle Hibberd’s
information, Plaintiff provided the Court with a copy of the Second Amended Complaint
containing hand-written alterations.

Specifically, in every place where Defendant Styles

appeared, there was a line crossing out his name, with hand-written text inserting Danielle
Hibberd’s name above it. Therefore, it appears as though Plaintiff attempted to amend his
complaint for the third time, and wishes to add Danielle Hibberd as a Defendant to his lawsuit.
However, this apparent attempt is in contravention of Federal Rule of Civil Procedure 15(a)(2).
Plaintiff is (or should be) aware that in order to amend his complaint or add new parties,
he has to file a motion to do so. This is evidenced by the fact that Plaintiff has previously filed
two motions with the Court requesting permission to amend his complaint. (ECF Nos. 25, 34).
Therefore, the Court will disregard the altered second amended complaint that it received from
Plaintiff and will not direct the U.S. Marshal to mail the service documents to Danielle Hibberd.

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AND NOW, this 31st day of October , 2014, IT IS HEREBY ORDERED that pursuant
to this Court’s Order from 9/30/2014 (ECF No. 47) and Federal Rule of Civil Procedure 4(m),
Donald M Styles is DISMISSED WITHOUT PREJUDICE from this lawsuit.
IT IS FURTHER ORDERED that Plaintiff’s attempt to add Danielle Hibberd as a party
to this action is ineffective.

By the Court:
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge
cc:

PHILBERT WILSON
124 N. Mulberry Street
New Castle, PA 16101
All registered counsel via CM-ECF

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