United States District Court, W.D. Pennsylvania
STANDING PRACTICE ORDER FOR PRO SE CIVIL RIGHTS
CASES
LISA
PUPO LENIHAN MAGISTRATE JUDGE
This
Order is intended to apply to all pro se cases filed
by incarcerated plaintiffs who allege violations of their
civil rights. The intention is to inform the parties, and in
particular the pro se plaintiff, of the litigation
procedures and responsibilities that commonly arise during
the course of a lawsuit.
1.
Pursuant to the provisions of 28 U.S.C. §§ 1915 and
1915A, if applicable, the Court will review the complaint
prior to service and may dismiss the complaint, or any
portion of the complaint, if it is determined that the
complaint is frivolous, malicious, or fails to state a claim
upon which relief may be granted.
2. In
no event shall a prisoner proceed in forma pauperis
in a civil action 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 was frivolous,
malicious, or failed to state a claim upon which relief may
be granted, unless the prisoner is under imminent danger of
serious physical injury. This is commonly referred to as the
“three strikes rule.” If at any time during this
case it is determined that a prisoner has three strikes, the
motion for in forma pauperis, if applicable, will be
denied or in the event the plaintiff has been granted in
forma pauperis status, such status will be revoked. If
the plaintiff's in forma pauperis
status is denied or revoked, then he/she may proceed by
paying the full $350.00 statutory filing fee, plus an
administrative fee in the amount of $50.00, for a total of
$400.00.
3. The
plaintiff must provide the Court with a copy of his/her
entire complaint, including any exhibits and/or attachments,
for EACH defendant named in the case. The plaintiff must also
complete and provide the Court with a U.S. Marshal 285 form,
a Notice of Lawsuit and Request for Waiver of Summons form
(AO 398), and a Waiver of the Service of Summons form (AO
399) for EACH defendant named in the case. The Court will not
order service by the U.S. Marshal until all required forms
are completed by the plaintiff and returned to the Court. The
plaintiff should be aware that the Court cannot investigate
the identity and whereabouts of a defendant.
4. The
plaintiff must investigate and ascertain the names and
addresses of any John or Jane Doe defendants as soon as
possible or they will be dismissed for failure to prosecute.
5. The
plaintiff is advised that no defendant is required to respond
to the complaint until that defendant has accepted a copy of
the complaint from the U.S. Marshal and has waived service,
or has been served. Therefore, a motion for default cannot
properly be filed unless the defendant has failed to file an
answer, a motion to dismiss, or a motion for additional time
to respond, within sixty (60) days after the Marshal's
notice has been mailed, if service is waived pursuant to the
notice, or twenty-one (21) days after being served.
6.
After the complaint is served, the plaintiff does NOT have to
serve a copy of any document he/she files in the case on each
defendant. The plaintiff shall file only the original of any
pleading or other document with the Clerk of Court. Upon the
filing of a pleading or other document, the Court's ECF
system will automatically generate and send a Notice of
Electronic Filing to all filing users associated with that
case. Transmission of the Notice of Electronic Filing
constitutes service of the filed document. Any party who is
not a registered user of the Court's ECF system is
entitled to receive a paper copy of any pleading or other
document from the party making such filing. Service of such
paper copy must be made according to the Local Rules of this
Court and the Federal Rules of Civil Procedure. If the
plaintiff wishes to have proof that a document was
received/filed by the Court, then he/she must send an extra
copy of the document with a self-addressed, postage-paid
envelope. The extra copy will be date stamped by the
Clerk's Office and returned in the self-addressed,
postage-paid envelope.
7.
Federal Rule of Civil Procedure 11 requires that any filing
signed by any party must comply with certain standards. Among
these is that statements or allegations of fact must be true
or have evidentiary support. This requirement applies to the
complaint which the plaintiff has already submitted for
filing as well as to any future filings and submissions by
any party.
8. If
the plaintiff seeks to amend his initial complaint, then
he/she may be able to do so by filing an amended complaint in
accordance with Federal Rule of Civil Procedure 15. Rule 15
allows a plaintiff to file one amended complaint without
leave of court prior to any defendant filing a responsive
pleading or within twenty-one (21) days after service of a
motion under Federal Rule of Civil Procedure 12(b), (e) or
(f). If a plaintiff wishes to file an amended complaint after
this point then he/she must file a motion requesting leave to
file an amended complaint and attach a copy of the proposed
amended complaint to his/her motion. An amended complaint
must be complete in itself. It cannot reference any prior
complaint and any allegations or defendants that are not
included in the amended complaint will be considered
dismissed.
9. If
the defendant(s) files a motion pursuant to Federal Rule of
Civil Procedure 12(b), (e) or (f), no discovery will take
place until after the motion has been ruled on by the Court.
If the case survives these motions, then the defendant(s)
will file an answer to the complaint in accordance with
Federal Rule of Civil Procedure 12(a)(4).
10.
After all defendants have filed answers to the complaint, the
Court will enter a Case Management Order specifying the
deadlines for discovery and the filing of summary judgment
motions under Federal Rule of Civil Procedure 56. In the Case
Management Order, the defendant(s) will be directed to
provide limited discovery to the plaintiff. The plaintiff
will then be given instructions on how to ask for additional
discovery by first filing his request with the Court. The
plaintiff cannot send any requests for discovery directly to
the defendant(s).
11.
There is no right to counsel in a civil case. If, however,
the plaintiff's case survives summary judgment then the
Court may, in certain circumstances, direct the Clerk of
Court to request an attorney to consider entering an
appearance on behalf of the plaintiff.
12.
Unless the plaintiff is licensed to practice law, he cannot
file a complaint on behalf of, ...