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Font v. Luzerne County

July 19, 2006


The opinion of the court was delivered by: Judge Muir

Complaint Filed 06/20/2005



On June 20, 2005, plaintiff, an inmate formerly confined in the Luzerne County Prison*fn1 , filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. The only named defendants were Luzerne County, Pennsylvania and the Warden of the Luzerne County Prison. Along with his complaint, plaintiff submitted an application requesting leave to proceed in forma pauperis under 28 U.S.C. § 1915.

By Order dated July 12, 2005, plaintiff's complaint was screened pursuant to Section 1915,*fn2 of the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (April 26, 1996) Doc. No. 7). Plaintiff's motion to proceed in forma pauperis was construed as a motion to proceed without full prepayment of fees and costs and the motion was granted. Id. Finding that plaintiff's complaint failed to properly aver any personal involvement by any of the named defendants in the complaint, the Court dismissed plaintiff's complaint, without prejudice, as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Id.

On July 21, 2005, plaintiff filed a motion for reconsideration of this Court's July 12, 2005 Order. (Doc. No. 8). In his motion for reconsideration, plaintiff states that "he could not at the time of filing, name the individual corrections officers and medical personnel by name", but believes that he "should be given the chance to amend [his complaint] and add the additional defendants." (Doc. No. 8). Thus, it appeared that the plaintiff in an amended complaint could name and describe the defendants' personal involvement in the alleged misdeeds, and an amended complaint may be filed once as of right before an answer is filed. See Fed. R. Civ. P. 15.

By Order dated August 11, 2005, plaintiff's motion for reconsideration was granted and plaintiff was granted an opportunity to file an amended complaint. (Doc. No. 14).

On August 29, 2005, plaintiff filed an amended complaint. (Doc. No. 16). He names as defendants Luzerne County, Gene Fishi, Nurse Sherry, Corrections Officers John Does #1-4, Physician's Assistant, John Doe #5, Doctor John Doe #6, Corey D. Wetzel, and the Commonwealth of Pennsylvania.

Presently before the court is plaintiff's proposed amended complaint, and a motion to dismiss the amended complaint, filed by defendants Wetzel and the Commonwealth of Pennsylvania. (Doc. No. 18). Plaintiff concurs with the dismissal of the Commonwealth of Pennsylvania. Thus, the Commonwealth of Pennsylvania will be dismissed as a defendant in this action. For the reasons set forth below, defendant Wetzel's motion to dismiss will be granted, defendants Luzerne County and Warden Fishy will be dismissed, and the remainder of plaintiff's amended complaint will be consolidated into Font v. Pennsylvania State Police et al, Civil No. 4:05-CV-0277.

Standard of Review

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of claims that fail to assert a basis upon which relief can be granted. See FED.R.CIV.P. 12(b)(6). When deciding a motion to dismiss for failure to state a claim, the court is required to accept as true all of the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom. Langford v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000) (citing Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)). "The complaint will be deemed to have alleged sufficient facts if it adequately put[s] the defendant on notice of the essential elements of the plaintiff's cause of action." Id. The court will not dismiss a complaint for failure to state a claim unless it appears beyond a doubt that "no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002).

"In determining whether a claim should be dismissed under Rule 12(b)(6), a court looks only to the facts alleged in the complaint and its attachments without reference to other parts of the record." Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). The court, however, need not accept "bald assertions" or "legal conclusions." Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997).

Likewise, the court need not "conjure up unpled allegations or contrive elaborately arcane scripts" to breathe life into an otherwise defective complaint. Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988). Consistent with these principles, the court must grant leave to amend before dismissing a complaint ...

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