The opinion of the court was delivered by: Judge McClure
On February 23, 2007, plaintiff Barry Benson Jr., an inmate at the State Correctional Institutional at Camp Hill, Pennsylvania, filed a pro se civil rights action pursuant to 42 U.S.C. § 1983. Contemporaneously with the filing of his complaint, Benson filed an application to proceed in forma pauperis. In his initial complaint, Benson names five defendants: 1) The Pennsylvania Board of Probation and Parole; 2) Mrs. S. Miller, parole supervisor; 3) Mr. John Forney, parole agent; 4) Mr. Chris Smith, parole agent; and 5) Mr. Mike Bowman, landlord. Benson alleges that defendant Bowman breached a lease by refusing to rent him an apartment after being falsely informed by defendants Smith and Forney that plaintiff had been convicted of drug crimes.
The matter was initially referred to United States Magistrate Judge Malachy E. Mannion. On April 2, 2007, after an initial screening of the complaint, the magistrate judge concluded that defendant Board of Probation and Parole was not amenable to suit under § 1983, that defendant Miller was a supervisor whose liability was premised on respondeat superior, that defendant Bowman was a private actor not amenable to suit under § 1983, that plaintiff had failed to specify the factual basis of defendant Smith's involvement with any alleged constitutional violations, and finally that plaintiff failed to identify any constitutional right that was violated by defendant Forney. (Rec. Doc. No. 14.) Therefore, the magistrate judge ordered plaintiff to file an amended complaint.
On May 4, 2007, plaintiff filed an amended complaint. (Rec. Doc. No. 16.) In his amended complaint, plaintiff only complains of the actions of defendants Bowman, Smith, and Forney.
On May 21, 2007, the magistrate judge filed a five-page report recommending that the complaint be dismissed as to defendant Bowman. (Rec. Doc. No. 20) However, the magistrate judge concluded that the complaint did sufficiently state a claim against defendants Forney and Smith.
Petitioner has not filed any objections to the magistrate judge's report and recommendation. On May 24, 2007, plaintiff filed a second amended complaint (Rec. Doc. No. 21) and a motion for appointment of counsel (Rec. Doc. No. 23). On May 25, 2007, plaintiff filed a motion for release from custody for surgery. (Rec. Doc. No. 24.) Finally, on June 11, 2007, plaintiff filed a third amended complaint. (Rec. Doc. No. 25.)
The court will now conduct an initial screening pursuant to 28 U.S.C. § 1915A. Section 1915A mandates that a district court conduct a preliminary examination of a complaint filed by a prisoner against a government entity or its officers and employees, and dismiss the complaint in whole or in part if the complaint fails to state a claim upon which relief may be granted.*fn1
Now, for the following reasons, we will adopt in-part the magistrate judge's report. We will dismiss plaintiff's first amended complaint with prejudice, dismiss plaintiff's second and third amended complaints without prejudice, and will deny plaintiff's motion for appointment of counsel and his motion for release from custody for surgery.
A district court reviews de novo those portions of a magistrate judge's report and recommendation to which a party objects. L.R. 72.3. The court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.
In performing the court's screening function under 28 U.S.C. § 1915A to determine whether the complaint fails to state a claim upon which relief can be granted, the court will apply the standard applicable to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Weiss v. Colley, 230 F.3d 1027, 1029 (7th Cir. 2000). Under this standard, the court must view all allegations stated in the complaint as true and construe all inferences in the light most favorable to plaintiff. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). Furthermore, the court must consider whether plaintiff is entitled to offer evidence to support the allegations in the complaint. Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000). A complaint should be dismissed only if the court, from evaluating the allegations in the complaint, is certain that under any set of facts relief cannot be granted. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Morse v. Lower ...