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Commonwealth of Pennsylvania County of Westmoreland v. Jeffrey A. Garvey

May 2, 2011

COMMONWEALTH OF PENNSYLVANIA COUNTY OF WESTMORELAND, PLAINTIFF,
v.
JEFFREY A. GARVEY,
DEFENDANT.
JEFFREY ALLEN GARVEY,
PLAINTIFF,
v.
PARTROLMAN KEITH A. KING, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

ELECTRONICALLY FILED

Memorandum Opinion on Plaintiff's Motion for In Forma Pauperis and Dismissal of Cases Sua Sponte

Pending before this Court is Jeffrey A. Garvey's (defendant/pro se plaintiff's) "notice of removal" and request for In Forma Pauperis (IFP) status in civil action no. 11-557, and civil action no. 11-558, and his complaint/request for declaratory judgment in civil action no. 11-558. Garvey, who is a defendant in an open criminal proceeding in Westmoreland County, before District Court Magistrate Cheryl J. Peck-Yakopec, was charged with numerous counts of disorderly conduct, resisting arrest, false identification and other related charges. It appears that plaintiff was pulled over by members of the Lower Burrell Police Department during a traffic stop, he was subsequently arrested, and his vehicle was impounded.

It further appears from the documents attached by Garvey to his "notice of removal" in 11-cv-557, that he is scheduled to appear for a preliminary hearing before Judge Peck-Yakopec on May 24, 2011 to address these charges. Doc. No. 1-2. Garvey alleges that his "removal" to this Court is premised on a federal question under 28 U.S.C. §§ 1441 and 1446. 11-cv-557, Doc. No. 1-1, 1-3.

Section 1915A obligates the Court to review an IFP prisoner's complaint as soon as practicable after docketing, and to dismiss the action if at any time it appears, inter alia, that the action is frivolous, malicious or fails to state a claim. 28 U.S.C. § 1915A(b)(1). Additionally, 28 U.S.C. § 1915 (e)(2) provides:

Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that--

(A) the allegation of poverty is untrue; or

(B) the action or appeal-

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune from such relief.

The standard under which a district court may dismiss an action as frivolous under 28 U.S.C. § 1915(d) (the predecessor to section 1915 (e)(2)*fn1 ) was clarified by the Supreme Court in Neitzke v. Williams, 490 U.S. 319 (1989). Dismissal is appropriate both when the action is "based on an indisputably meritless legal theory" and when it posits "factual contentions [that] are clearly baseless." Id. at 327.

Plaintiff's claim is based on an "indisputably meritless legal theory," and it fails to state a claim upon which relief can be granted. Although leave to amend a pro se civil rights complaint should be considered, amendment in this case would be futile where plaintiff's affirmative pleadings show ...


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