1996), and took effect on April 26, 1996--almost two months after plaintiff was granted in forma pauperis status. Thus, the Court must consider whether § 1915(e)(2)(B)(ii) is applicable to the instant case.
The question of § 1915(e)(2)(B)(ii)'s application to cases pending before it became effective is a question of first impression in the Third Circuit. Informed by the Ninth Circuit's decision in Marks v. Solcum, 98 F.3d 494, 496 (9th Cir. 1996) (per curiam), and the Eleventh Circuit's decision in Mitchell v. Farcass, 112 F.3d 1483, 1997 WL 225487 (11th Cir. 1997), the Court concludes that § 1915(e)(2)(B)(ii) should be applied to cases filed before April 26, 1996, including the case sub judice.
An inquiry as to whether a statute should be applied retroactively is controlled by the Supreme Court's decision in Landgraf v. USI Film Products, 511 U.S. 244, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994). The first question that must be asked under Landgraf is "whether Congress has expressly prescribed the statute's proper reach." Id. at 280. Congress has not prescribed the reach of § 1915(e)(2)(B)(ii). See Mitchell, 112 F.3d 1483, 1997 WL 225487, at *3. Having answered the first question in the negative, the Court must determine whether the application of § 1915(e)(2)(B)(ii) to cases pending before its effective date "would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Landgraf, 511 U.S. at 280.
It is beyond dispute that § 1915(e)(2)(B)(ii) does not increase liability or impose new duties upon plaintiff. Therefore, the question before this Court is whether § 1915(e)(2)(B)(ii) to cases pending when that section became effective "impairs rights a party possessed when he acted."
The Third Circuit considered when a statute has a retroactive effect in light of the Landgraf standard in Scheidemann v. Immigration and Naturalization Service, 83 F.3d 1517 (3d Cir. 1996). In Scheidemann the Third Circuit isolated the primary concern addressed by Landgraf, stating that "'in general, the concern regarding retroactive application of statutes is the deprivation of rights without notice and fair warning.'" Id., at 1523 (quoting De Osorio v. Immigration and Naturalization Service, 10 F.3d 1034, 1042 (4th Cir. 1993). No such concerns are raised by the application of § 1915(e)(2)(B)(ii) to the instant case. Plaintiff is not being deprived of a right without notice and fair warning. No litigant has a right to have a district court hear a claim upon which relief cannot be granted. See Fed.R.Civ.P. 12(a) and 12(b)(6). In enacting § 1915(e)(2)(B)(ii) Congress has simply changed the time frame
within which such a dismissal may be ordered--it has not changed the substantive requirements that must be met in order to avoid such a dismissal. Such a change surely does not impair any rights held by a plaintiff.
Moreover, section 1915(e)(2)(B)(ii) is wholly procedural. See Mitchell, 112 F.3d 1483, 1997 WL 225487, at *4; Marks, 98 F.3d at 496 ("section 1915(e)(2) is a procedural rule"). Thus, there is a strong presumption that § 1915(e)(2)(B)(ii) may be applied to cases pending before its enactment, as the Landgraf court noted. Landgraf, 511 U.S. at 275 ("Changes in procedural rules may often be applied in suits arising before their enactment without raising concerns about retroactivity."). Because § 1915(e)(2)(B)(ii) is wholly procedural, and does not impair plaintiff's rights, there is no reason to deviate from this presumption. See Marks, 98 F.3d at 496 (holding that 28 U.S.C. § 1915(e)(2) applies to all appeals regardless of whether the complaint or notice of appeal was filed before the effective date of that section); see also Mitchell, 112 F.3d 1483, 1997 WL 225487, at *3-4 ("We agree with the Ninth Circuit that section 1915(e)(2) 'raises no retroactivity concerns under Landgraf.'" (quoting Marks, 98 F.3d at 496)). And, because § 1915(e)(2)(B)(ii) does not have an impermissible retroactive effect, it should be applied to the instant case.
2. Count II Fails to State an Equal Protection Claim Under 42 U.S.C. §§ 1981 Upon Which Relief Can Be Granted
Plaintiff, who is black, attempts to state an equal protection claim based on defendant's deprivation of his right to full and equal benefits of the law as enjoyed by white citizens in violation of the Fourteenth Amendment and 42 U.S.C. § 1981. The Court notes that although plaintiff attempts to state a claim under the "equal benefits"
clause of § 1981, his claim should have been brought under the "like punishment" clause.
See Mahone v. Waddle, 564 F.2d 1018, 1028 (3d Cir. 1977) (considering the scope of § 1981). However, the Court need not address that issue because plaintiff has failed to state a claim upon which relief can be granted under any part of § 1981.
Plaintiff fails to make a single factual allegation which supports, or even suggests, that racial discrimination was a factor in the incidents underlying this lawsuit. Such allegations are an essential element of any § 1981 claim. Because plaintiff has failed to make such an allegation, he has failed to state a claim under 42 U.S.C. § 1983 upon which relief can be granted.
3. Count III Fails to State a Claim under 42 U.S.C.
§ 1985 Upon Which Relief Can Be Granted
Count III purportedly states a claim under 42 U.S.C. § 1985. Plaintiff does not state under which subsection of § 1985 he makes his claim. However, it appears that plaintiff is attempting to proceed under § 1985(c) because he claims that defendant deprived him of the privileges, immunities, and equal protection guaranteed by the Constitution and laws of the United States, which is the language used in subsection "c" to describe the protected rights. However, the Court need not make this determination because each subsection of § 1985 begins with the words "If two or more persons in any State or territory conspire . . . ." It is those words that are at the heart of plaintiff's failure to state a claim upon which relief can be granted.
Plaintiff has only named one defendant in this case and he makes no factual allegations as to the involvement of other people in the dental treatment underlying this lawsuit. Because § 1985 only applies to conspiracies between two or more people, and because plaintiff does not make factual allegations that include at least two people, he has failed to state a claim under § 1985 upon which relief can be granted.
4. Count IV Fails to State a Claim Under 42 U.S.C. § 1986 Upon Which Relief Can Be Granted
In Count IV plaintiff alleges that defendant failed to exercise reasonable diligence in violation of 42 U.S.C. § 1986. Section 1986 provides, inter alia :
Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses to do so, if such wrongful act committed, shall be liable . . . .
A violation of § 1986 requires an underlying violation of 42 U.S.C. § 1985. The Court has dismissed plaintiff's claim under § 1985 for failure to state a claim upon which relief can be granted. Because of that dismissal, plaintiff cannot establish a violation of § 1986. Therefore, plaintiff has failed to state a claim under § 1986 upon which relief can be granted.
For the reasons set forth above:
1) Defendant's Motion for Summary Judgment will be granted with respect to Count I of the Amended Complaint;
2) Defendant's Motion for Summary Judgment will be granted with respect to plaintiff's medical malpractice claim included in paragraph 2 of the Amended Complaint to the extent it relates to the extraction of tooth eighteen on September 27, 1995;
3) Defendant's Motion for Summary Judgment will be denied with respect to plaintiff's medical malpractice claim included in paragraph 2 of the Amended Complaint to the extent it relates to the extraction of tooth fourteen on September 13, 1995, without prejudice to defendant's right to raise at trial the issues presented in the Motion;
4) Plaintiff's assault and battery claim included in paragraph 2 of the Amended Complaint, which is not the subject of the Motion for Summary Judgment, will be allowed to proceed to trial; and,
5) Count II, Count III, and Count IV of the Amended Complaint will be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief can be granted.
An appropriate order follows.
AND NOW, to wit, this 20th day of June, 1997, because of amendments to this Court's Memorandum of June 17, 1997, resulting in the issuance of a second Memorandum dated June 20, 1997, IT IS ORDERED that this Court's Memorandum of June 17, 1997, is WITHDRAWN.1a
IT IS FURTHER ORDERED that this Court's Order of June 17, 1997, is AMENDED so as to reflect that it is based on the reasons set forth in the Memorandum dated June 20, 1997, and, as amended, the said Order of June 17, 1997, remains in full force and effect.
BY THE COURT:
JAN E. DUBOIS, J.