The opinion of the court was delivered by: FOGEL
Hezekiah Thomas instituted this civil rights action pursuant to the provisions of 28 U.S.C. §§ 1343, 1443-1446, 2201, 2202 and 42 U.S.C. §§ 1981, 1983, 1985 and 1988. Plaintiff alleges the following: (1) he was sadistically beaten by county correctional officers while incarcerated at Holmesburg Correctional Institution on April 20, 1969; (2) he was transferred from Holmesburg to the State Correctional Institution at Graterford, Pennsylvania and placed in punitive solitary confinement from June 20 to June 30, 1969; (3) he was thereafter transferred to the State Correctional Institution at Pittsburgh on August 28, 1969, where he was again placed in solitary confinement until September 3, 1969; and (4) he was once more put in solitary confinement on December 2, 1969, in a cell without bedding and was the victim of barbarous treatment while so imprisoned. Plaintiff also avers that he had been locked in solitary confinement in these institutions without having violated any institutional rules or regulations. Plaintiff further charges that these prison superintendents and other officials of the institutions have conspired to subject him to cruel and unusual punishment in violation of his constitutional rights.
Defendants Rundle and Mazurkiewicz and Defendant Brierley have filed separate motions to dismiss the complaint. Defendants Rundle and Mazurkiewicz jointly have moved the court to dismiss the complaint against them on the ground of ineffective service of process. In the instant action service was attempted by leaving copies of the complaint at the State Correctional Institution at Graterford on December 28, 1971. The court is informed by affidavit that defendant Rundle had resigned from his position as the Superintendent of the State Correctional Institution at Graterford on May 23, 1971. The motion to dismiss the complaint against Rundle is unopposed by plaintiff, and that motion will be granted. Cf. Mitchell v. Hendricks et al, No. 72-2184 (E.D. Pa., filed June 4, 1973).
The court is also informed by affidavit that defendant Mazurkiewicz was transferred in January, 1970, from the State Correctional Institution at Philadelphia to the State Correctional Institution at Graterford, where he served as Co-superintendent; and that on August 13, 1970, he was appointed Superintendent at the State Correctional Institution at Rockview, Bellefonte, Pennsylvania, which post he still occupies.
In providing that service may be made "at any office or usual place of business of the defendant", the rule lends itself to broad construction. In addition, Rule 126, Pennsylvania Rules of Civil Procedure, provides for a liberal construction and application of the rules:
The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.
In the instant action, service was made by delivering copies of the complaint at the State Correctional Institution at Graterford on December 28, 1971, to the records officer of that institution. Defendant Mazurkiewicz, who had been transferred to a different state correctional institution, contends that he was no longer an employee of the State Correctional Institution at Graterford at the time of attempted service, and that service was therefore insufficient.
Defendant Mazurkiewicz has been employed at each of several institutions by the same employer, the Commonwealth of Pennsylvania. At each institution this defendant has been represented in prisoners' civil rights suits by the Attorney General of Pennsylvania, counsel for all the named defendants in this action. We do not believe that any right of the defendant Mazurkiewicz is adversely affected by construing the Pennsylvania rule providing for service "at any office or usual place of business of the defendant . . ." in a manner which validates service upon defendant Mazurkiewicz in this action, and we so hold. Rule 1009(b) (2) (iii), Pennsylvania Rules of Civil Procedure.
Defendant Brierley, in his motion, has urged dismissal of this action against him on four grounds: (1) improper venue; (2) failure to state a claim upon which relief can be granted in alleging transfers from one prison to another; (3) failure to state a claim upon which relief can be granted in alleging cruel and unusual punishment; and (4) failure to implicate defendant Brierley individually.
The relevant venue provision, 28 U.S.C. § 1391(b) provides:
(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law.
Plaintiff has alleged a conspiracy between the defendants, operative acts of which are alleged to have occurred within the eastern as well as the western district of Pennsylvania. Accordingly we conclude that venue is properly laid in this district.
With respect to alleged infringement of his due process rights guaranteed him by the Fourteenth Amendment, plaintiff has made sufficiently specific allegations of unconstitutional conduct to withstand a motion to dismiss. See Gray v. Creamer, 465 F.2d 179, 182, n. 2 (3d Cir. 1972). "[A] motion to dismiss a complaint, including a prisoner's civil rights complaint, for failure to state a claim upon which relief can be granted is subject to a very strict standard." Gray v. Creamer, supra at 181. A pro se complaint is not held to stringent standards of formal pleadings, Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972) and a "complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of ...