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Lucarelli v. Norton

June 20, 2007

CHARLES LUCARELLI, PLAINTIFF
v.
GARY NORTON, DISTRICT ATTORNEY, DON COLEMAN, COLUMBIA COUNTY PROBATION, JOHN RICHMOND, SCHUYLKILL COUNTY PROBATION, DEFENDANTS



The opinion of the court was delivered by: Judge Jones

MEMORANDUM

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS

Pending before the Court is a Motion to Dismiss the Amended Complaint, or, in the alternative, Motion for Summary Judgment (doc. 17) of Defendants Gary Norton, Don Coleman and John Richmond, filed on May 23, 2007.

For the reasons that follow, the Motion shall be granted.

PROCEDURAL HISTORY

Pro se Plaintiff Charles Lucarelli filed the instant civil rights action on March 26, 2007, naming Gary Norton, District Attorney in and for Columbia County, Don Coleman, Chief of Columbia County Adult Probation and John Richmond, Chief of Schuylkill County Adult Probation, as Defendants. (Rec. Doc. 1). On March 27, 2007, we ordered Plaintiff to file a more definite statement (Rec. Doc. 3), and on April 12, 2007, we granted the Plaintiff an extension of thirty (30) days to file the same. (Rec. Doc. 5).

The Defendants filed executed waivers of service on April 17 and 18, 2007. (Rec. Docs. 6, 7, and 8). Nevertheless, Plaintiff filed a Motion for Default Judgment on May 1, 2007. (Rec. Doc. 10). On May 2, 2007, Defendants filed a Motion to Dismiss the complaint. (Rec. Doc. 13). On May 3, 2007, we entered an Order denying Plaintiff's Motion for Default. (Rec. Doc. 15).*fn1

On May 9, 2007, Plaintiff filed an amended complaint. (Rec. Doc. 16). On May 23, 2007, the Defendants filed the instant Motion with supporting brief. (Rec. Docs. 17 and 18).

On June 5, 2007, Plaintiff filed a document entitled "Request for Production of Documents and Things Addressed to Defendant Pursuant to Pennsylvania Rules of Civil Procedure" (doc. 19) and "Plaintiff's First Set of Expert Interrogatories Addressed to Defendant." (Rec. Doc. 20). On June 13, 2007, Defendants filed Objections to Plaintiff's Interrogatories and Request for Production of Documents. (Rec. Doc. 21).

To date, Plaintiff has not filed a brief in opposition to the pending Motion to Dismiss the Amended Complaint (doc. 17), nor has he filed for an extension of time within which to do so. Pursuant to Local Rule 7.6:

[a]ny party opposing any motion shall file a responsive brief, together with any opposing affidavits, deposition transcripts, or other documents within fifteen (15) days after service of the movant's brief . . . Any respondent who fails to comply with this rule shall be deemed not to oppose such motion.

The period for filing a responsive brief has long since expired.

STANDARD OF REVIEW

In considering a motion to dismiss pursuant to Fed. R. Civ. Pro. 12(b)(6), a court must accept the veracity of a plaintiff's allegations. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also White v. Napoleon, 897 F.2d 103, 106 (3d Cir. 1990). In Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996), our Court of Appeals for the Third Circuit added that in considering a motion to dismiss based on a failure to state a claim argument, a court should "not inquire whether the plaintiffs will ultimately prevail, only whether they are entitled to offer evidence to support their claims." Furthermore, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set ...


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