The opinion of the court was delivered by: Judge Munley
This civil rights action was initiated by Anthony C. Phillips, Sr. ("Phillips") on March 26, 2009, an inmate incarcerated at the Dauphin County Prison. (Doc. 1.) Named as defendants are Matthew A. Miller ("Miller"), Latsha A. Duncan ("Duncan"), Kim E. Turner ("Turner"), Dauphin County Prison ("DCP"), Deputy Warden Nichols*fn1 ("Nichols"), Department of Welfare, and Amanda LoPiccolo ("LoPiccolo"). Presently pending are two separate motions to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b). A motion was filed on behalf of Miller, DCP, Nichols, and LoPiccolo on June 19, 2009. (Doc. 21.) On August 17, 2009, a motion was filed on behalf of the Department of Welfare. (Doc. 32.) Both motions are ripe for disposition and, for the reasons set forth below will be granted.*fn2
In addition, the complaint against defendant Turner will be dismissed pursuant to Federal Rule of Civil Procedure 4(m) (stating that "[i]f a defendant is not served within 120 days after the complaint is filed, the court -- on motion or on its own after notice to the plaintiff -- must dismiss the actions without prejudice against that defendant or order that service be made within a specified time."). The complaint against Defendant Duncan will be dismissed pursuant to 28 U.S.C. § 1915(e(2)(B)(ii) for failure to state a claim on which relief may be granted.
I. Allegations of the Complaint
Phillips alleges that he was incarcerated at the DCP and enrolled in the work release program. (Doc. 1, at 3.) On November 25, 2008, defendant Miller removed him from the work release center and returned him to the prison because it was believed he did not work and that he had health concerns. (Id.)
He also alleges that he has complained of blurry vision in his left eye to the DCP medical staff and defendant Nichols since May 9, 2008. "Nothing was done" after March 2009, and now he needs eye surgery. (Id.)
Lastly, he states that defendant LoPiccolo falsified statements and utilized tainted records to prevent him from being granted early release. (Id.)
II. Defendant Department of Welfare
Defendant Department of Welfare seeks to dismiss the complaint by invoking Eleventh Amendment immunity.
A Rule 12(b)(1) motion is a proper mechanism for raising the issue of whether Eleventh Amendment immunity bars federal jurisdiction. Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 694 n. 2 (3d Cir. 1996) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984), for the proposition that the Eleventh Amendment deprives federal courts of subject-matter jurisdiction). Unlike a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), in a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977)).
Federal courts are courts of limited jurisdiction; accordingly, every case begins with the presumption that the court lacks jurisdiction to hear it. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). In a Rule 12(b)(1) motion, the party invoking jurisdiction has the burden of demonstrating that subject matter jurisdiction exists. See Thomson v. Gaskill, 315 U.S. 442, 446 (1942).
To state a viable § 1983 claim, plaintiff must establish (1) that the alleged wrongful conduct was committed by a "person" acting under color of state law, and (2) that the conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000). Both elements must be present to sustain a § 1983 action. It is well-settled that neither a state nor its agencies are considered a "person" as that term is defined under § 1983 and, therefore, are not subject to § 1983 suit. Hafer v. Melo, 502 U.S. 21, 25-27 (1991).
In Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989), the United States Supreme Court reiterated its position that state agencies are not "persons" subject to liability in § 1983 actions brought in federal court. The Court noted that a § 1983 suit against a state official's office was "no different from a suit against the State itself." Id. at 71. "Will establishes that the State and arms of the State, which have traditionally enjoyed Eleventh Amendment immunity, are not subject to suit under § 1983 in either federal or state court." Howlett v.Rose, 496 U.S. 356, 365 (1990).
The Department of Welfare, as a state agency and arm of the state, is not a "person" for the purpose of § 1983 and, thus, not properly named as a defendant. Accordingly, ...