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AMBREK v. CLARK

July 18, 1968

John J. AMBREK
v.
Ward CLARK, Edward G. Beister, Jr., John D. Case and Sheriff's Department of Bucks County. John J. AMBREK v. Charles KNABB, Paul Gernert, Gladys McComstock and Officials of the Pennsylvania State Board of Parole


John Morgan Davis, District Judge.


The opinion of the court was delivered by: DAVIS

Both actions involve civil rights complaints against various State and County officials, and are being prosecuted under the Civil Rights Acts, 42 U.S.C. §§ 1981, 1983, 1985.

 At the outset, we note that 42 U.S.C. § 1981 is clearly inapplicable, since there has been no allegation in either complaint, of any racial discrimination being practiced by the defendants, against the plaintiff. *fn1" Snowden v. Hughes, 321 U.S. 1, 64 S. Ct. 397, 88 L. Ed. 497 (1944); Agnew v. City of Compton, 239 F.2d 226 (9th Cir. 1957).

 Consideration in both actions will accordingly be restricted to the application of 42 U.S.C. § 1983 and 1985 to the allegations recited in the complaints.

 In No. 68-1474, the plaintiff is proceeding in forma pauperis, and has filed an appropriate petition to so proceed, as required by 28 U.S.C. § 1915(a). Consequently, an initial determination is required, as to whether the action is in any way meritorious. Blue v. Hiatt, 55 F. Supp. 107 (M.D.Pa.1944). If the complaint is completely devoid of merit, the petition to proceed in forma pauperis cannot be favorably considered. Pugliano v. Staziak, 231 F. Supp. 347 (W.D.Pa.1964) aff'd, 345 F.2d 797 (3rd Cir. 1965); Woodruff v. City and County of Philadelphia, 38 F.R.D. 468 (E.D.Pa.1965).

 A.

 In this complaint (No. 68-1474), the plaintiff first alleges that the defendant Beister did not inform him (plaintiff) of his rights, and that anything he said would be used against him. *fn2"

 While this may have been the case, (assuming, but not deciding) it does not set forth a cause of action under the aforementioned Civil Rights Acts. The requirement for preliminarily "warning" an accused was set forth in Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The sole import for failure to so warn is to preclude the admissibility in a subsequent criminal proceeding of evidence and statements obtained from the accused:

 
But unless and until such warnings * * * are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.

 Miranda v. Arizona, supra, at 479, 86 S. Ct. at 1630.

 Consequently, unless evidence so obtained were used against the plaintiff in a criminal proceeding, there has been no deprivation of any rights, privileges or immunities secured by the Constitution or laws of the United States, which is a requisite for stating a cause of action under the Civil Rights Acts. Basista v. Weir, 340 F.2d 74 (3rd Cir. 1965). But the mere failure to warn, as alleged in the complaint, does not create a cause of action.

 B.

 It is further alleged that as a result of an "illegal commitment", John D. Case, Warden, Bucks County Prison, should be held liable. It is clear, however, that a warden is not liable for merely asserting custody over a prisoner, if accomplished pursuant to an order of a court or other competent authority. Delaney v. Shobe, 235 F. Supp. 662 (D.Or.1964). In the instant case, there is no allegation that the warden was not proceeding under a valid commitment order.

 Similarly, the bare allegation that Sheriff Jones and his three deputies should be held liable for "illegally conveying" the plaintiff to prison, is equally without any merit. See Rhodes v. Houston, 202 F. Supp. 624 (D.Neb. 1962) aff'd, 309 F.2d 959 (8th Cir. 1962); Williams v. Craven, 273 F. Supp. 649 (C.D.Calif.1967); Black v. Stanley, 270 F. Supp. 993 (D.Kansas 1967); Haigh v. ...


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