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Ebersole v. Pennsylvania Dep't of Corrections

August 13, 2007

DAVID G. EBERSOLE, PLAINTIFF
v.
PENNSYLVANIA DEPARTMENT OF CORRECTIONS, ET. AL, DEFENDANTS



The opinion of the court was delivered by: John E. Jones III United States District Judge

Judge Jones

MEMORANDUM AND ORDER

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Pending before the Court is Defendants' Motion to Dismiss Supplemental Complaint ("the Motion")(doc. 46) filed on April 27, 2007 by Defendants James Curry, Mr. Harrell and Tracy Starzynski.

For the following reasons, the Motion shall be granted.

PROCEDURAL HISTORY:

Pro se Plaintiff David G. Ebersole ("Plaintiff" or "Ebersole") commenced the instant action by filing a complaint (doc. 1) with this Court on July 12, 2006 against various Defendants associated with the Pennsylvania Department of Corrections ("DOC"). Following service associated with the complaint, the Defendants filed a Motion to Dismiss.

On February 12, 2007, we granted Plaintiff leave to file a supplemental complaint, which named various Defendants of the Pennsylvania Bureau of Probation and Parole. Thereafter, on February 27, 2007, the newly named Defendants filed a Motion to Dismiss.

On April 11, 2007, we issued a Memorandum and Order dismissing the Department of Corrections as a Defendant to this action based upon Eleventh Amendment immunity. We permitted Plaintiff's claims against the remaining individual Defendants to proceed.

On April 27, 2007, Defendants Curry, Harrell and Starzynski filed the pending Motion. The Motion has been fully briefed and is therefore ripe for our review.

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 of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also District Council 47 v. Bradley, 795 F.2d3 310 (3d Cir. 1986).

FACTUAL BACKGROUND:

Ebersole is presently an inmate in the custody of the DOC at the State Correctional Institution at Dallas (SCI-Dallas). Plaintiff had formerly been granted pre-release status in December 2005 and was transferred to the Harrisburg Community Correction Center. In late March, 2006, while still on pre-release, Plaintiff was observed with a former-DOC employee who was under investigation by the DOC. Upon this observation by ...


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