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Carder v. Seymour

United States District Court, W.D. Pennsylvania

December 30, 2014

MARCUS CARDER, Plaintiff,
v.
MAJOR GARY SEYMOUR, et al., Defendants.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

SUSAN PARADISE BAXTER, Magistrate Judge.

I. RECOMMENDATION

It is respectfully recommended that the motion to dismiss [ECF No. 23] be granted. The Clerk of Courts should be directed to close this case.

II. REPORT

A. Relevant Procedural History

This civil action was filed in this Court on December 5, 2013. Plaintiff, an inmate presently in state custody, alleges that his civil rights were violated by Defendants while he was housed at the Erie County Prison. Plaintiff opened this case by filing only a motion for preliminary injunction without a complaint. Listed as Defendants on the motion for preliminary injunction are: Major Gary Seymour; Warden Kevin Sutter; Deputy Warden Michael Holman; Captain Carmen; Counselor Terry Roberts; Inmate Services Monica Carroll, Sgt. John Kendziora; and Correctional Officer Douglas Patterson.

In his initial filing seeking preliminary injunctive relief, Plaintiff argued that these named Erie County Prison officials were:

Retaliating against me and harassing me and threatening me with physical violence and excessive force to discourage and hinder me from pursuing this civil action and [illegible] al their official oppression and violations of censorship and extremely limited mail, phone and visit privileges, inadequate medical care, interference with practicing my religions, and corpal [sic] punishment and violations of slavery and labor laws, inadequate food, all the brutality and sexual harassment [illegible] going on and taking place here at the Erie County Prison they are violating our federal rights and constitutional rights! And I need the Judge or the district Judge Susan Paradise Baxter to please court order these corrupt prisons officials to issue ad process the inmate grievances! Because they are refusing to provide grievances to hinder the inmates from exhausting our administrative remedies to stop us from filing civil suits concerning all their constitutional violations towards the inmates here at the prison! And denying us grievances to exhaust our remedies! Grievances are a constitutional and federal law violation! And I'm asking and requesting that the Judge court order these following Erie County Prison officials to stop all the harassment and retaliation, threatening and hindering me and all other inmates from filing grievances!

ECF No. 1.

At a telephonic hearing held February 10, 2014, Plaintiff was ordered to file a complaint at this civil action number before February 20, 2014, or risk dismissal of his case. ECF No. 2. By Text Order dated February 25, 2014, the case was dismissed due to Plaintiff's failure to file a complaint.

By Order dated March 4, 2014, this Court explained that it had received "Plaintiff's correspondence dated February 28, 2014, which the Clerk of Courts has docketed as a Response to the Order closing this case. Plaintiff complains that this case should not have been closed. Any requested relief must be in the form of a motion. Plaintiff may re-open this case by filing a complaint, but, to date, no complaint has been received by the Clerk of Courts." See Text Order dated March 4, 2014.

Thereafter, Plaintiff filed a motion for preliminary injunction/temporary restraining order. ECF No. 4. By a telephonic hearing held on March 24, 2014, Plaintiff was directed to file an Amended Complaint at this civil action number consolidating all of his claims (from several other recently filed civil actions). ECF No. 11. Complaint forms were sent to Plaintiff and he was directed to file the Amended Complaint within twenty days of the hearing.

On April 17, 2014, Plaintiff filed Motion to Reopen Case, along with a document this Court liberally construed as his proposed Amended Complaint. ECF No. 12. The motion to reopen was granted and the Clerk of Courts was directed to file the proposed Amended Complaint. ECF No. 14.

In response to the Amended Complaint, Defendants filed a motion to dismiss arguing that Plaintiff has failed to state a claim upon which relief could be granted. See ECF No. 24. Despite being given the opportunity to do so, Plaintiff has not ...


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