United States District Court, M.D. Pennsylvania
September 14, 2005.
GEOFFREY WILLARD ATWELL, Plaintiff
THOMAS LAVAN, et al., Defendants.
The opinion of the court was delivered by: SYLVIA RAMBO, Senior District Judge
MEMORANDUM AND ORDER
I. Procedural History
Before the court is an order and a report of the magistrate
judge, both filed August 12, 2005. The order incorporates the
recommendations in the report of the magistrate judge. In that
order, the magistrate judge ruled, in part, that (1) Plaintiff be
granted leave to proceed in forma pauperis; and (2) pursuant to
Federal Rule of Civil Procedure 4(c)(2), the United States
Marshal was directed to serve Plaintiff's amended complaint,
along with a copy of the August 12, 2005 order and report of the
magistrate judge, on all named defendants in the amended
complaint except the following individuals: Rendell, Schweiker,
Fisher, Neuhauser, Sherman, Greevy, Hart, Sears, Farnan, Roberts,
Bergstrom, Corbett, Thomas, and Collins.
The order also addressed other issues raised by Plaintiff which
renders those moot, i.e., a motion for clarification, the order
that Plaintiff himself serve the amended complaint, and the
payment of the filing fee.
Plaintiff has filed objections to the report of the magistrate
judge in which he states that (1) all 87 defendants in the
original complaint should be served, and (2) objects to the
recommendation that 14 of the defendants in the amended complaint
be dismissed. Because the magistrate judge has correctly
responded to these issues, the objections will be dismissed. II. Background
This background will only set forth those facts and proceedings
which pertain to the remaining issues not resolved to the
satisfaction of Plaintiff. Plaintiff, a state prisoner proceeding
pro se, commenced this 42 U.S.C. § 1983 action by filing a
complaint on September 30, 2003, naming 87 defendants. On January
20, 2004, Plaintiff filed an amended complaint naming only 54
By report and recommendation dated January 23, 2004, the
magistrate judge recommended that the action be dismissed because
Plaintiff's amended complaint violated Federal Rule of Civil
Procedure 20(a). Plaintiff objected to the recommendation that
the action be dismissed and appealed to the United States Court
of Appeals for the Third Circuit following this court's adoption
of the dismissal recommendation by order dated May 3, 2004. By
order dated June 23, 2005, the Third Circuit vacated the May 3,
2004 order and remanded for further proceedings. The Third
Circuit concluded that the court erred in dismissing the case
because misjoinder of parties is not grounds for dismissal of an
action. On remand, the case was referred to the magistrate judge
for proceedings consistent with the opinion of the Third Circuit
The caption of the order from the Third Circuit contains the
names of all of the defendants named in Plaintiff's original
complaint. The docket in this case erroneously lists the original
87 defendants rather than the 54 listed in the amended complaint.
The only complaint before this court and the complaint which was
dismissed resulting in the appeal is the complaint filed on
January 20, 2004. An amended complaint supersedes the original
version in providing the blueprint for the future course of a
lawsuit. Snyder v. Pascack Valley Hosp., 303 FD.3d 271, 276 (3d
Cir. 2002). An amended pleading supersedes the last pleading
which becomes ineffective. The amended pleading is a complete substitute and
the former pleading no longer performs any function.
Community-National v. Wellness House, 70 F.3d 46, 49 (7th
Cir. 1995). Thus, the magistrate judge's order that only the 40
defendants left in the amended complaint be served is correct.
Plaintiff objects to the magistrate judge's recommendation that
14 defendants be dismissed and complains that he was illegally
imprisoned after the expiration of his sentence. Plaintiff
alleges that he informed numerous Defendants about his illegal
detention who failed to investigate or take corrective action.
The magistrate judge correctly concluded that 14 Defendants are
not officials who could be responsible for calculating a
prisoner's sentence or for rectifying any detention beyond the
expiration of a prisoner's sentence. The undersigned agrees and,
therefore, finds that Plaintiff fails to state a claim upon which
relief can be granted as to the following Defendants: Rendell,
Schweiker, Fisher, Neuhauser, Sherman, Greevy, Hart, Sears,
Farnan, Roberts, Bergstrom, Corbett, Thomas, and Collins.
IT IS THEREFORE ORDERED THAT:
1) The court affirms the August 12, 2005 order of the
2) The court adopts the August 12, 2005 report and
recommendation of the magistrate judge.
3) Plaintiff's motion to revise the order of August 12, 2005 is
4) Plaintiff is granted leave to proceed in forma pauperis.
5) The United States Marshal shall serve Plaintiff's amended
complaint, a copy of this order, a copy of the magistrate judge's
August 12, 2005 report and August 12, 2005 order on all
defendants named in the amended complaint except Defendants
Rendell, Schweiker, Fisher, Neuhauser, Sherman, Greevy, Hart,
Sears, Farnan, Roberts, Bergstrom, Corbett, Thomas, and Collins.
6) Plaintiff's motion for clarification is deemed moot. 7) The order of July 22, 2005, to the extent that it orders
Plaintiff himself to serve the amended complaint, is vacated.
8) The order of July 25, 2005, directing Plaintiff to pay the
balance of the filing fee, is vacated.
9) The Clerk of court shall correct the docket to reflect only
those defendants listed in the amended complaint and to designate
those defendants listed in paragraph 5 above as terminated from
10) This matter is remanded to the magistrate judge for further
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