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Kelley Troy Cooley v. Dr. Richard Zewe

December 21, 2012

KELLEY TROY COOLEY, PLAINTIFF,
v.
DR. RICHARD ZEWE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sean J. McLaughlin United States District Judge

MEMORANDUM ORDER

This action was received by the Clerk of Courts on April 19, 2011 and was referred to United States Magistrate Judge Susan Paradise Baxter for report and recommendation in accordance with the Magistrates Act, 28 U.S.C. ' 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates.

The Magistrate Judge's Report and Recommendation [ECF No. 66], filed on November 13, 2012, recommended that the Defendants' Motion to Dismiss [ECF No.

51] be granted in its entirety. Specifically, it was recommended that the Plaintiff's in forma pauperis status be revoked and that he be required to pay the full filing fee of $350.00 before allowing the case to proceed any further.

It was further recommended that all references to claims arising after Plaintiff's transfer from SCI Pittsburgh around April 2011 be stricken and that the Clerk of Courts be directed to terminate Carberry, Williams, and Pitkins as Defendants based upon the improper joinder of claims and parties.

Finally, the Magistrate Judge recommended that Plaintiff's Motion for Leave to file another Amended Complaint [ECF No. 63] be denied.

The parties were allowed fourteen (14) days from the date of service to file objections and no objections were filed.

After de novo review of the documents in the case, together with the Report and Recommendation, I agree that the Motion to Dismiss should be granted based upon the improper joinder of claims and parties in the current Amended Complaint, and that all references to claims arising after Plaintiff's transfer from SCI Pittsburgh around April 2011 be stricken. The Clerk of Courts is directed to terminate Carberry, Williams, and Pitkins as Defendants to this action. I further agree that the Plaintiff's Motion for Leave to file another Amended Complaint [ECF No. 63] should be denied.

I disagree, however, with the Magistrate Judge's conclusion regarding the Plaintiff's continued in forma pauperis status pursuant to the "three strikes" rule, set forth in 28 U.S.C. § 1915(g), which provides:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g). With regard to this provision, the Magistrate Judge found:

Here, in his Original Complaint, Plaintiff alleged that Defendants withheld needed dental treatment and care. As a consequence of the inadequate dental treatment, Plaintiff alleged that he suffered pain, bleeding, and a foul odor from his mouth. Further, Plaintiff claimed that due to the mouth pain, he was forced to eat only soft foods and that he lost a great deal of weight. Although it was a close call, and given that I liberally construed the complaint and resolved all inferences in favor of the non-movant, these are the factual allegations which I found sufficient to satisfy the threshold criterion of the imminent danger exception.

Generally, when an amended complaint is filed, the original complaint no longer performs any function in the case and "cannot be utilized to cure defects in the amended [complaint], unless the relevant portion is specifically incorporated in the new [complaint]." 6 Wright, Miller, & Kane, Federal Practice and Procedure ยง 1476 (2d ed. 1990) (footnotes omitted). An amended complaint may adopt some or all of the allegations in the original complaint, but the identification of the particular allegations to be adopted must be clear and explicit. Id. Here, Plaintiff's current Amended Complaint does not make allegations sufficient to meet the imminent danger exception in order for him to overcome the three strikes provision of the PLRA. Plaintiff's current Amended Complaint is not as ...


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