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Real v. Wetzel

United States District Court, E.D. Pennsylvania

December 12, 2019

FERNANDO REAL, Plaintiff,
v.
JOHN WETZEL, et al., Defendants.

          ORDER

          GERALD J. PAPPERT, J.

         AND NOW, this 12th day of December, 2019, upon consideration of Plaintiff Fernando Real's Motion to Proceed In Forma Pauperis (ECF No. 4), Prisoner Trust Fund Account Statement (ECF No. 5), pro se Amended Complaint (ECF No. 6), and Motion for Appointment of Counsel (ECF No. 7), it is ORDERED that:

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

         2. Fernando Real, #GG-0219, 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 Superintendent of State Correctional Institution-Greene or other appropriate official to assess an initial filing fee of 20% of the greater of (a) the average monthly deposits to Real's inmate account; or (b) the average monthly balance in Real's inmate account for the six-month period immediately preceding the filing of this case. The Superintendent 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 Real's inmate trust fund account exceeds $10.00, the Superintendent or other appropriate official shall forward payments to the Clerk of Court equaling 20% of the preceding month's income credited to Real'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 Superintendent of State Correctional Institution-Greene.

         4. The Amended Complaint is DEEMED filed.

         5. For the reasons stated in the Court's Memorandum, the Amended Complaint is DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) with respect to Real's official capacity claims.

         6. For the reasons stated in the Court's Memorandum, the Amended Complaint is DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) with respect to Counts II and VI.

         7. The Amended Complaint shall PROCEED with respect to Counts I, III, IV, and V.

         8. The Clerk of Court shall AMEND the caption to reflect that John Wetzel and John Doe Two are no longer Defendants in this action.

         9. The remaining John Doe Defendants, John Doe One, and John Doe Three, will not be served unless or until Real provides sufficient identifying information to allow for service.

         10. The Clerk of Court shall issue summonses. Service of the summonses and the Complaint, along with a copy of this Order and its accompanying Memorandum, shall be made upon Defendants Thomas Grenevich, Correctional Officer Turnage, and Correctional Officer Spagnoletti, by the U.S. Marshals Service. Real will be required to complete USM-285 forms so that the Marshals can serve Defendants. Failure to complete these forms may result in dismissal of this case.

         11. All original pleadings and other papers submitted for consideration to the Court in this case are to be filed with the Clerk of Court. Copies of papers filed in this Court are to be served upon counsel for all other parties (or directly on any party acting pro se). Service may be made by mail. Proof that service has been made is provided by a certificate of service. The certificate of service should be filed in the case along with the original papers and should show the day and manner of service. An example of a certificate of service by mail follows:

“I, (name), do hereby certify that a true and correct copy of the foregoing (name of pleading or other paper) has been served upon (name(s) of person(s) served) by placing the same in the U.S. mail, ...

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