United States District Court, M.D. Pennsylvania
October 17, 2005.
GERALD S. LEPRE, Petitioner,
T&G MASONRY, INC. and ATTORNEY GENERAL of the STATE of PENNSYLVANIA, Respondents.
The opinion of the court was delivered by: CHRISTOPHER CONNER, District Judge
AND NOW, this 17th day of October, 2005, upon consideration of
the petition for writ of habeas corpus (Doc. 1), filed pursuant
to 28 U.S.C. § 2254 and alleging due process and equal protection
violations, and of the application to proceed in forma pauperis
(Doc. 2),*fn1 and it appearing that the petition does not
challenge state custody, but alleges a constitutional violation
under 42 U.S.C. § 1983,*fn2 that the petition does not aver
any facts or allegations against defendant Attorney General of
the State of Pennsylvania, and that the petition does not aver
any facts indicating that defendant T&G Masonry, Inc. was acting under the
color of state or federal law, see 42 U.S.C. § 1983 (providing
that a person will be liable for constitutional violations if the
person was acting "under color of any statute, ordinance,
regulation, custom, or usage, of any State"); see also Brown
v. Philip Morris Inc., 250 F.3d 789, 800 ("A Bivens action,
which is the federal equivalent of the § 1983 cause of action
against state actors, will lie where the defendant has violated
the plaintiff's rights under color of federal law."), it is
hereby ORDERED that:
1. The application to proceed in forma pauperis
(Doc. 2) is GRANTED.
2. The petition for writ of habeas corpus (Doc. 1) is
DISMISSED for failure to state a claim. See
28 U.S.C. § 1915(e)(2)(B)(ii).
3. Petitioner shall be permitted to file an amended
pleading on or before November 4, 2005. See
Grayson v. Mayview State Hosp., 293 F.3d 103, 108
(3d Cir. 2002).
4. If an amended pleading is not filed on or before
November 4, 2005, the Clerk of Court is directed to
CLOSE the above-captioned case.
5. Any appeal from this order is DEEMED frivolous and
not in good faith. See 28 U.S.C. § 1915(a)(3).
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