IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
April 17, 2009
SANDRA L. GOOD, PLAINTIFF
DENNIS C. HEEFNER, SYLVIA STONER, AND JOHN TRISH, DEFENDANTS
The opinion of the court was delivered by: Christopher C. Conner United States District Judge
AND NOW, this 17th day of April, 2009, upon consideration of the report (Doc. 81) of the magistrate judge, to which no objections were filed, recommending that (1) defendants' motion (Doc. 63) to dismiss pro se plaintiff's third amended complaint (Doc. 66) be granted in part and denied in part, such that (a) plaintiff's First, Fourth, and Fifth Amendment claims be dismissed, (b) defendant Dennis Heefner ("Heefner") be dismissed as a party to the suit, and (c) plaintiff's procedural due process claims against Sylvia Stoner ("Stoner") and John Trish ("Trish") be permitted to proceed, and (2) that plaintiff's second motion (Doc. 79) for the appointment of counsel be denied, and, following an independent review of the record, it appearing that plaintiff's First Amendment claim concerns an alleged constitutional violation distinct and later in time from that underlying her original complaint,*fn1 that plaintiff's Fourth Amendment claim was previously considered and dismissed by the order of court dated September 30, 2008, (see Doc. 61 at 26-28), and that plaintiff's Fifth Amendment claim is not cognizable,*fn2 and it further appearing that plaintiff's third amended complaint fails to allege that Heefner was personally involved in the alleged constitutional violation, but that plaintiff has sufficiently alleged that Stoner and Trish were personally involved in the deprivation of her right to procedural due process, (see Doc. 66 ¶¶ 8-13); see also Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (explaining that an individual government defendant "in a civil rights action must have personal involvement in the alleged wrongdoing" and that "liability cannot be predicated solely on the operation of respondeat superior"), and the court determining that plaintiff possesses the competency to present the merits of her case, that resolution of plaintiff's claims under 42 U.S.C. § 1983 does not implicate complex legal or factual issues, and that prosecution of plaintiff's claim will not require significant factual investigation or the testimony of experts,*fn3 see Tabron v. Grace, 6 F.3d 147, 155-56 (3d Cir. 1993) (describing factors the court must consider in order to resolve pro se plaintiff's motion for appointment of counsel under 28 U.S.C. § 1915(d)), it is hereby ORDERED that:
1. The report and recommendation (Doc. 81) of the magistrate judge is ADOPTED.
2. Defendants' motion (Doc. 63) to dismiss is GRANTED in part and DENIED in part as follows:
a. The motion is GRANTED with respect to plaintiff's First, Fourth, and Fifth Amendment claims. In addition, the motion is GRANTED with respect to all claims against defendant Dennis C. Heefner. Leave to amend is denied as futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
b. The motion is DENIED with respect to plaintiff's procedural due process claims against defendants Sylvia Stoner and John Trish.
3. Plaintiff's motion (Doc. 79) to appoint counsel is DENIED. Should further proceedings demonstrate the need for appointed counsel, the issue may be reconsidered either sua sponte or upon a motion by plaintiff. See Tabron, 6 F.3d at 156-57.
4. The above-captioned matter is REMANDED to the magistrate judge for further proceedings.