Opinion
Civil Action 22-2078
07-18-2022
OSVALDO PUMBA, Plaintiff, v. CLIFFORD KNAPPENBERGER II, KEITH KOWAL, FRANK HEFFERNAN, DILLYN MUJEVIC, and LEHIGH COUNTY JAIL, Defendants.
ORDER
EDWARD G. SMITH, J.
AND NOW, this 18th day of July, 2022, after considering the following filed by the pro se plaintiff, Osvaldo Pumba: (1) the application for leave to proceed in forma pauperis (Doc. No. 1); (2) the prisoner trust fund account statement (Doc. No. 2); and (3) the complaint (Doc. No. 3); and for the reasons stated in the separately filed memorandum opinion, it is hereby ORDERED as follows:
1. The application for leave to proceed in forma pauperis (Doc. No. 1) is GRANTED, and the plaintiff has leave to proceed in forma pauperis;
2. Osvaldo Pumba (“Pumba”), #0200144, shall pay the full filing fee of $350 in installments, pursuant to 28 U.S.C. § 1915(b), regardless of the outcome of this case. The court directs the Warden of the Lehigh County Jail or other appropriate official to assess an initial filing fee of 20% of the greater of (a) the average monthly deposits to Pumba's inmate account; or (b) the average monthly balance in Pumba's inmate account for the six-month period immediately preceding the filing of this case. The Warden or other appropriate official shall calculate, collect, and forward the initial payment assessed pursuant to this order to the court with a reference to the docket number for this case. In each succeeding month when the amount in Pumba'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 Pumba'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 Lehigh County Jail;
4. The complaint (Doc. No. 3) is DEEMED filed;
5. Pumba's claims against the Lehigh County Jail are DISMISSED WITH PREJUDICE;
6. Pumba's claims against Sergeant Keith Kowal are DISMISSED WITHOUT PREJUDICE;
7. The clerk of court is DIRECTED to TERMINATE the Lehigh County Jail as a defendant in this matter;
8. The clerk of court is DIRECTED to SEND Pumba a blank copy of the court's standard form complaint for prisoners to use to file a complaint bearing the above civil action number;
This form is available on the court's website at: https://www.paed.uscourts.gov/documents/forms/frmc1983f.pdf.
9. Pumba has thirty (30) days from the date of this order to file an amended complaint if he can allege additional facts to state a plausible claim against Keith Kowal. Any amended complaint shall identify all defendants in the caption of the amended complaint in addition to identifying them in the body of the amended complaint, shall state the basis for Pumba's claims against each defendant, and shall bear the title “Amended Complaint” and the case number, No. 22-2078. If Pumba files an amended complaint, his amended complaint must be a complete document that includes all the bases for Pumba's claims, including claims that the court has not yet dismissed if he seeks to proceed on those claims. For example, Pumba must include in his amended complaint the allegations supporting his malicious prosecution claims against Clifford Knappenberger, II, Frank Heffernan, and Dillyn Mujevic, which have not been dismissed at this time, if Pumba seeks to proceed on those claims . Claims that are not included in the amended complaint will not be considered part of this case. When drafting his amended complaint, Pumba should be mindful of the court's reasons for dismissing his claims as explained in the court's memorandum opinion. Upon the filing of an amended complaint, the clerk shall not make service until so ordered by the court;
10. If Pumba does not file an amended complaint, the court will direct service of his initial complaint on the defendants, Clifford Knappenberger, II, Frank Heffernan, and Dillyn Mujevic only, as described in the court's memorandum opinion. Pumba may also notify the court that he seeks to proceed on these claims rather than file an amended complaint. If he files such a notice, Pumba is reminded to include the case number for this case, No. 22-2078;
11. The clerk of court is DIRECTED to send Pumba (1) a copy of this order and the separately filed memorandum opinion, and (2) a copy of the complaint in this case (Doc. No. 3); and
12. The time to serve process under Rule 4(m) of the Federal Rules of Civil Procedure is EXTENDED to the date 90 days after the court issues summonses in this case if summonses are issued.