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CURRY v. LUNDY

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


March 16, 1970

Walter N. CURRY, Plaintiff,
v.
Larry W. LUNDY, Defendant, and Robert Creshaw, Defendant, Supt. Alfred T. Rundle, State Correctional Institution, at Graterford

Masterson, District Judge.

The opinion of the court was delivered by: MASTERSON

MASTERSON, District Judge.

Presently before this court is plaintiff's petition for leave to proceed in forma pauperis. The complaint is styled as a Civil Rights Action and suit is brought under 42 U.S.C.A. § 1983. *fn1"

 The substance of plaintiff's complaint is that defendants Lundy and Creshaw, who are fellow inmates of the plaintiff at Graterford, allegedly conspired to destroy plaintiff's "personal and legal court property." In addition, it is alleged that Lundy fraudulently induced the plaintiff to pay money to Lundy for the purchase of a law book which was apparently never received by the plaintiff. On the basis of the above, plaintiff seeks judgment against Lundy and Creshaw for the sum of $4,000.00.

 There are two essential elements for a cause of action under 42 U.S.C.A. § 1983: (1) that conduct complained of was done by some person acting under color of state or local law; and (2) that such conduct deprived plaintiff of rights, privileges or immunities secured to him by the Constitution and laws of the United States. Fatal to the instant complaint is its failure to meet the first requirement, supra, in that defendants, Lundy and Creshaw, in their capacity as prisoners, were not acting under color of state or local law. *fn2" Accordingly, plaintiff's petition for leave to proceed in forma pauperis will be denied as the complaint is plainly lacking in merit. Lockhart v. D'Urso, 408 F.2d 354 (3rd Cir. 1969). *fn3"


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