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Neidig v. Redina

March 31, 2008

WILLIAM J. NEIDIG, PLAINTIFF
v.
PETE REDINA, ET AL. DEFENDANTS



The opinion of the court was delivered by: James F. McClure, Jr. United States District Judge

(Judge McClure)

ORDER

BACKGROUND

On January 8, 2007, William Neidig ('William"), proceeding pro se, filed the instant civil rights action. Neidig has also filed a motion to proceed in forma pauperis. (Rec. Doc. No. 2.) The case was originally assigned to a different judge in this district.

Named as defendants are Postal Inspector Pete Rendina, Pennsylvania State Police Trooper Lancer Thomas, and Detective Robert John. William has also alleged that there are unknown defendants. In his complaint, William Neidig alleges that these defendants were involved in the seizure of property that he agreed to forfeit as part of a plea agreement in an earlier criminal case that proceeded before the undersigned judge. (Rec. Doc. No. 1, ¶¶ 3-4.)

On February 5, 2007, Charles Neidig ("Charles"), William's father, filed a document entitled "Third Party Claim Under F. R. Civ. P. Rule 14(b) and 28 USCS § 959(a)." (Rec. Doc. No. 9.) On February 6, 2007, that motion was denied. Charles appealed and on October 2, 2007, the Third Circuit vacated the February 6, 2007 order and remanded the motion for consideration as a motion to intervene pursuant to Rule 24 of the Federal Rules of Civil Procedure. This motion currently remains pending.

On April 2, 2007, defendant Thomas filed a motion to dismiss. (Rec. Doc. No. 21.) On November 14, 2007, the court granted the motion, finding that the complaint failed to allege the personal involvement of Thomas. (Rec. Doc. No. 39.) William and Charles appealed this order and on March 13, 2008, the Third Circuit dismissed their appeal.

On June 11, 2007, defendant Rendina filed a motion to dismiss. (Rec. Doc. No. 30.) An opposing brief has been filed and the time for filing a reply brief has since passed. Therefore, this motion is ripe for disposition.

On December 7, 2007, Charles filed a motion for appointment of counsel. (Rec. Doc. No. 41.)

On February 21, 2008, the case was transferred to the undersigned judge because it was determined to be related to the criminal case before the undersigned judge. (Rec. Doc. No. 47.)

Now, for the following reasons, we will grant defendant Thomas' motion to dismiss. We will also sua sponte dismiss the case as to the remaining defendants pursuant to the screening provision of 28 U.S.C. § 1915(e)(2)(B). Furthermore, we will deny Charles' motion to intervene and motion for appointment of counsel.

DISCUSSION

I. Legal Standard

When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), 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). In ruling on such a motion, the court primarily considers the allegations of the pleading, but is not required to consider legal conclusions alleged in the complaint. Kost, 1 F.3d at 183. At the motion to dismiss stage, the court considers 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 only be dismissed if, accepting as true ...


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