Brewer v. Carney

Full title: ISAIAH J. BREWER, Plaintiff, v. BLANCHE CARNEY, Defendant.

Court: United States District Court, E.D. Pennsylvania

Date published: Nov 4, 2022

Civil Action 22-CV-0951 (E.D. Pa. Nov. 4, 2022)

Opinion

Civil Action 22-CV-0951

11-04-2022

ISAIAH J. BREWER, Plaintiff, v. BLANCHE CARNEY, Defendant.

JOHN M. GALLAGHER, J.

ORDER

JOHN M. GALLAGHER, J.

AND NOW, this 4^th day of November, 2022, upon consideration of Plaintiff Isaiah J. Brewer's Motion to Proceed In Forma Pauperis and his Prisoner Trust Fund Account Statement (ECF Nos. 11, 3), his Motion to Appoint Counsel (ECF No. 10), his Motions for Change of Address (ECF Nos. 12, 13), his Motion for Information (ECF No. 17), and his pro se Complaint (ECF No. 2), it is ORDERED that:

1. Leave to proceed in forma pauperis is GRANTED pursuant to 28 U.S.C. § 1915.

2. Isaiah J. Brewer, #NL-7250, shall pay a filing fee of $347.67in installments, pursuant to 28 U.S.C. § 1915(b), regardless of the outcome of this case. In each month when the amount in Brewer's inmate trust fund account exceeds $10.00, the Warden or other appropriate official shall forward payments to the Clerk of Court equaling 20% of the preceding month's income credited to Brewer's inmate account until the fees are paid. Each payment shall refer to the docket number for this case.

3. The Clerk of Court is DIRECTED to send a copy of this Order to the Warden of SCI Albion.

4. The Complaint is DEEMED filed.

5. The Complaint is DISMISSED WITHOUT PREJUDICE for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for the reasons stated in the Court's Memorandum.

6. Brewer may file an amended complaint within thirty (30) days of the date of this Order. Any amended complaint must identify all defendants in the caption of the amended complaint in addition to identifying them in the body of the amended complaint and shall state the basis for Brewer's claims against each defendant. The amended complaint shall be a complete document that does not rely on the initial Complaint or other papers filed in this case to state a claim. When drafting his amended complaint, Brewer should be mindful of the Court's reasons for dismissing the claims in his initial Complaint as explained in the Court's Memorandum. Upon the filing of an amended complaint, the Clerk shall not make service until so ORDERED by the Court.

7. The Clerk of Court is DIRECTED to send Brewer a blank copy of the Court's form complaint for a prisoner filing a civil rights action bearing the above civil action number. Brewer may use this form to file his amended complaint if he chooses to do so.

8. If Brewer does not wish to amend his Complaint and instead intends to stand on his Complaint as originally pled, he may file a notice with the Court within thirty (30) days of the date of this Order stating that intent, at which time the Court will issue a final order dismissing the case. Any such notice should be titled “Notice to Stand on Complaint,” and shall include the civil action number for this case. See Weber v. McGrogan, 939 F.3d 232 (3d Cir. 2019) (“If the plaintiff does not desire to amend, he may file an appropriate notice with the district court asserting his intent to stand on the complaint, at which time an order to dismiss the action would be appropriate.” (quoting Borelli v. City of Reading, 532 F.2d 950, 951 n.1 (3d Cir. 1976))); In re Westinghouse Sec. Litig., 90 F.3d 696, 703-04 (3d Cir. 1996) (holding “that the district court did not abuse its discretion when it dismissed with prejudice the otherwise viable claims . . . following plaintiffs' decision not to replead those claims” when the district court “expressly warned plaintiffs that failure to replead the remaining claims . . . would result in the dismissal of those claims”).

9. If Brewer fails to file any response to this Order, the Court will conclude that Brewer intends to stand on his Complaint and will issue a final order dismissing this case.See Weber, 939 F.3d at 239-40 (explaining that a plaintiff's intent to stand on his complaint may be inferred from inaction after issuance of an order directing him to take action to cure a defective complaint).

10. Brewer's Motion to Appoint Counsel (ECF No. 10) is DENIED WITHOUT PREJUDICE as premature.

11. Brewer's Motion for Information (ECF No. 17) is DENIED AS MOOT in light of the filing of this Order and accompanying Memorandum.

12. The Clerk of Court is DIRECTED to correct the docket to reflect that Brewer's Motions to Change Address (ECF Nos. 12,13) are notices and not motions and to TERMINATE the pending Motions.