1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-29-1996

Urrutia v. Harrisburg Pol Dept

Precedential or Non-Precedential:

Docket 95-3427

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Recommended Citation

"Urrutia v. Harrisburg Pol Dept" (1996). 1996 Decisions. Paper 126.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/126
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 

 95-3427 

 

 DONALD URRUTIA 

 v. 

 HARRISBURG COUNTY POLICE DEPT.; 

 SEAN MCCORMACK, Asst. D.A.; DENIS THOMASON 

 Donald Urrutia, 

 Appellant. 

 

 On Appeal from the United States District Court 

 For the Western District of Pennsylvania 

 D.C. Civ. No. 95-cv-00068 

 

 Submitted Under 3rd Cir. LAR 34.1(a)

 March 1, 1996 

 Before: BECKER, MCKEE, and WEIS, Circuit Judges. 

 

 (Opinion Filed July 29, 1996) 

 Donald Urrutia 

 Somerset SCI 

 1590 Walters Mill Road 

 Somerset, PA 15510 

 Appellant Pro Se 

 

 OPINION OF THE COURT 

 

BECKER, Circuit Judge. 

 

 This is an appeal by plaintiff, Donald Urrutia, from an 

order of the district court dismissing his civil rights 

complaint, 42 U.S.C.  1983, as legally frivolous pursuant to 28 

U.S.C.  1915(d), and denying him the opportunity to amend his 

complaint to correct the defects. The  1915(d) determination 
can be prolonged because the matter often goes first to a 

magistrate judge, who reviews the pleadings and makes a 

recommendation to the district judge. The principal question 

presented by the appeal is whether the 120 day period of Fed. R. 

Civ. P. 15(c)(3) for satisfying the requirements for relation 

back of an amendment that changes or adds a party is suspended 

while the district court considers the  1915(d) question so that 

the amendment will not be barred by a statute of limitations that 

expires after the complaint is filed. 

 The version of section 1915(a) of Title 28 in effect 

during the time when Urrutia's complaint was under consideration 

in the district court provided for the filing of a complaint 

without prepayment of fees by a person who was unable to afford 

the fees. Section 1915(d), however, permits the district court 

to consider whether an in forma pauperis complaint is frivolous 

or malicious before authorizing issuance of the summons and 

service of the complaint. Some frivolous complaints can be 

remedied by an amendment pursuant to Fed. R. Civ. P. 15. Where 

that is so, a district court may not dismiss the complaint as 

frivolous and must permit the amendment. Denton v. Hernandez, 

504 U.S. 25, 34 (1992). An amendment to a complaint must satisfy 

the statute of limitations, however. If the limitations period 

has expired, in order to survive, the amendment must relate back 

to the original complaint under Rule 15(c). 

 Urrutia alleged in his original complaint that the 

police, after handcuffing him, stood by and watched while another 

individual stabbed him. The original filing, which occurred 

after the magistrate judge ruled that Urrutia could not afford to 

pay the filing fees under  1915(a), was within the statute of 

limitations. The complaint was, however, defective. This is 

because, even though it alleged misdeeds by individual police 

officers, instead of naming the individual police officers as 

defendants Urrutia named the Harrisburg police department itself, 

and respondeat superior cannot form the basis of liability under 

42 U.S.C.  1983. Rizzo v. Goode, 423 U.S. 362 (1976). 

Urrutia's problem was compounded by the fact that the statute of 

limitations expired two months after the complaint was filed and 

about seven weeks before the district court made the  1915(d) 

determination. 

 An amendment to the complaint in which specific police 

officers would be named as additional defendants, or substituted 

as defendants, was proposed by Urrutia and would have cured the 

defect, if it related back under Rule 15(c). Among the several 

conditions in Rule 15(c) that must be satisfied for an amendment 

to relate back is that the individuals to be added as defendants 

must receive such notice of the institution of the action within 

120 days of the filing of the complaint that they will not be 

prejudiced in maintaining a defense on the merits. Here, 

however, between the magistrate judge and the district judge, the 

frivolousness determination consumed nearly all of the 120 day 

period established by Rule 15(c) for an amendment to relate back. 

 An in forma pauperis plaintiff has no control over the 

amount of time the district court takes to make the  1915(d) 

ruling. Where that time period is lengthy, as it was here, it 
renders the relation back doctrine essentially unavailable to an 

in forma pauperis plaintiff, because, by the time the 

determination is made, even if it is that an amendment will be 

permitted, the 120 day period will have expired or be close to 

expiration. Therefore, we hold that, once a plaintiff submits an 

in forma pauperis complaint within the time provided by the 

statute of limitations, and after the  1915(a) in forma 

pauperisdetermination is made, the 120 day period of Rule 15(c)(3) for 

satisfying the requirements for relation back of an amendment 

that changes or adds a party is suspended while the district 

court considers the  1915(d) question. If an amendment will 

cure defects in the complaint, it must be permitted, and upon the 

filing of an appropriate amendment, the district judge must order 

issuance of the summons and service of the complaint. SeeDenton, 504 U.S. 

at 34; see also Roman v. Jeffes, 904 F.2d 192, 

195 n.4 (3d Cir. 1990). Upon the entry of that order directing 

service of the amended complaint, the suspension ends and the 120 

day period of Rule 15(c)(3) for service begins to run. 

 We address today the version of 28 U.S.C.  1915 in 

effect during the time when Urrutia's complaint was under 

consideration in the district court. On April 26, 1996, and 

while this appeal was pending, the President signed into law the 

omnibus fiscal year 1996 appropriations measure, which contained 

amendments to  1915. Among other things, section 1915 has been 

amended to require courts to assess an initial partial filing fee 

of 20 percent of the greater of (1) the average monthly deposits 

to the prisoner's account; or (2) the average monthly balance in 

the prisoner's account for the prior six-month period whenever 

the prisoner's funds are insufficient to pay the full filing fee. 

In addition, courts are now required to determine whether a 

prisoner has, on three or more occasions, while incarcerated, 

brought an action or appeal in a federal court that was dismissed 

on the grounds that it was frivolous, malicious, or failed to 

state a claim upon which relief may be granted. If so, the 

prisoner's new action must be dismissed unless he or she is in 

imminent danger of serious physical injury. 

 A new provision, 28 U.S.C. 1915A, provides that courts 

shall review, before docketing if feasible, a prisoner's 

complaint against a governmental entity or officer or employee of 

a governmental entity to determine whether it may be dismissed as 

frivolous or malicious, or because it fails to state a claim upon 

which relief may be granted, or seeks monetary relief from a 

defendant who is immune from such relief. These amendments place 

additional burdens on the courts and are bound to prolong the 

1915 determination. Our holding today thus retains vitality. 

 Because we believe that the district court erred in 

resolving the  1915(d) question, specifically by refusing 

Urrutia's request to amend his complaint, and because we believe 

that Urrutia's proposed amendment will relate back so long as the 

individual police officers will not be prejudiced in maintaining 

a defense on the merits, we will vacate the order of dismissal, 

and remand for further proceedings. 

 I. 

 Urrutia's in forma pauperis complaint, consisting of an 
original complaint and an affidavit of poverty, alleged that his 

due process rights were violated when, on June 9, 1993, Denise 

Thompson stabbed him in the hand while he was handcuffed and in 

the custody of the police. The complaint named as defendants 

Thompson, the Harrisburg Police Department, and the Assistant 

District Attorney of Dauphin County, Sean McCormack. The 

complaint alleged that the district attorney had been vindictive 

in deciding to prosecute Urrutia and in dropping all charges 

against Ms. Thompson. Neither monetary damages nor specific 

injunctive relief were requested. Instead, complaining that he 

must serve seven months because of the district attorney's 

alleged vindictiveness, Urrutia merely asked that "justice be 

served." Complaint, at Part VI. 

 On April 5, 1995, the magistrate judge, to whom the informa 

pauperis complaint had been referred pursuant to local 

rule, signed a form order on the affidavit of poverty granting 

Urrutia leave to proceed without prepayment of fees. The 

complaint was filed on the same day. The magistrate judge did 

not order the complaint to be served and service did not take 

place at this time. Three months later, in July 1995, the 

magistrate judge filed a Report and Recommendation in which he 

recommended that the complaint be dismissed as legally frivolous. 

 In recommending dismissal of the complaint prior to 

service, the magistrate judge reasoned that the district 

attorney's decision to drop the charges against Thompson and to 

prosecute Urrutia was immunized from liability pursuant to Imbler 

v. Pachtman, 424 U.S. 409 (1976). Since Thompson was acting as a 

private citizen, no federal constitutional rights were implicated 

by her conduct, and the magistrate judge concluded that no 

liability could be imposed on any member of the police department 

because there had been no allegation of their indifference to 

Urrutia's safety in the complaint. Finally, he concluded that 

the claim against the police department could not stand because a 

municipality can only be liable under 42 U.S.C.  1983 if a plan, 

policy or custom that it initiated violated a plaintiff's 

constitutional rights, see Monell v. Department of Social Servs., 

436 U.S. 658, 690 (1978), and that no such circumstance was 

alleged. 

 Urrutia filed no objections to the report, but did move 

for an extension of time in which to amend his complaint. In his 

motion, he explained that he wished to amend his complaint "to 

plead his case with more `specificity,'" Motion For Extension of 

Time, at  2, and to add as defendants the police officers who 

had arrested him. The district court denied the motion, adopted 

the Report and Recommendation as the opinion of the court, and 

dismissed the complaint. Urrutia then filed a timely notice of 

appeal and a motion to proceed in forma pauperis on appeal. The 

motion to proceed in forma pauperis was granted by the district 

court. 

 In his brief filed on appeal, Urrutia provides more 

detail about the stabbing. On the day in question, Urrutia was 

arrested by approximately five Harrisburg police officers based 

on a complaint made by Ms. Thompson. He contends that his hands 

were placed in handcuffs behind his back, that Ms. Thompson had a 
knife in her hand, which the police ignored, and that they did 

not try to stop her from attacking him. In his submission: 

 After she (Ms. Thompson) stabbed me once, I told 

 the five (5) police that she had just stabbed me 

 and they did nothing. She then stabbed me two (2) 

 more times and they did nothing. Only after she 

 tried to stab me a fourth time did they intervene. 

 At the time of the attack I was handcuffed and in 

 the custody of the police. If the police had 

 placed me in the police vehicle after they 

 handcuffed me rather than leaving me to be exposed 

 while in a defenseless position, the stabbing 

 could have been avoided. 

Appellant's Informal Brief, at 2. Urrutia suffered scars and 

lacerations as a result of the stabbing. 

 II. 

 We believe that the allegations of Urrutia's complaint, 

construed liberally in light of Haines v. Kerner, 404 U.S. 519, 

520-21 (1972), state a claim of violation of the Fifth and 

Fourteenth Amendments provided that the individual police 

officers can be added or substituted as defendants. Using a 

familiar referent, he is certainly entitled to the level of 

protection provided by the Eighth Amendment, and deliberate 

indifference on the part of prison officials to violent attacks 

by other inmates is prohibited by the Eighth Amendment. Farmer 

v. Brennan, 114 S. Ct. 1970, 1976-77 (1994); Riley v. Jeffes, 777 

F.2d 143, 147 (3d Cir. 1985). Deliberate indifference means that 

an official acted or failed to act despite his knowledge of a 

substantial risk of serious harm. Farmer, 114 S. Ct. at 1981. 

We believe that these principles apply to attacks on persons in 

custody, whether or not by another inmate, and that the 

circumstances described above state a nonfrivolous claim of 

deliberate indifference, at a minimum. 

 However, Urrutia will have a viable claim only if he 

identifies the police officers present following his arrest who 

failed to take preventive action, because respondeat superior 

cannot form the basis of liability under 42 U.S.C.  1983. SeeRizzo, 423 

U.S. at 362. In Denton, 504 U.S. at 34, the Supreme 

Court explained that "if it appears that frivolous factual 

allegations could be remedied through more specific pleading, a 

court of appeals reviewing a  1915(d) disposition should 

consider whether the District Court abused its discretion by 

dismissing the complaint with prejudice or without leave to 

amend." We have held that dismissal under  1915(d) is 

appropriate only when the complaint is truly frivolous and no 

amendment would cure the defect. Roman, 904 F.2d at 195 n.4. In 

view of the allegations discussed above, and subject to the 

discussion, infra, we are constrained to hold that the district 

court abused its discretion in denying Urrutia leave to amend his 

complaint to add or substitute the individual police officers as 

defendants and to supplement the factual basis of his claim. 

 III. 

 A. 
 We underscore that Urrutia's complaint was submitted to 

the court within the two-year limitations period applicable to 

this action. However the limitations period expired 

approximately two months after the complaint was filed, i.e. 

after the 1915(a) determination was made. Thus, an amendment to 

the complaint on remand, in which specific police officers are 

named as additional defendants, will be barred by the statute of 

limitations unless the amendment relates back to the original 

complaint under Fed. R. Civ. P. 15(c). See Nelson v. County of 

Allegheny, 60 F.3d 1010, 1015 (3d Cir. 1995) (relation back rule 

ameliorates effect of statute of limitations), cert. denied, 116 

S. Ct. 1266 (1996). 

 Rule 15(c) permits amendments of a pleading to relate 

back to the date of the original pleading when: 

 (1) relation back is permitted by the law that 

 provides the statute of limitations applicable to 

 the action, or 

 (2) the claim or defense asserted in the 

 amended pleading arose out of the conduct, 

 transaction, or occurrence set forth or attempted 

 to be set forth in the original pleading, or 

 (3) the amendment changes the party or the 

 naming of the party against whom a claim is 

 asserted if the foregoing provision (2) is 

 satisfied and, within the period provided by Rule 

 4(m) for service of the summons and complaint, the 

 party to be brought in by amendment (A) has 

 received such notice of the institution of the 

 action that the party will not be prejudiced in 

 maintaining a defense on the merits, and (B) knew 

 or should have known that, but for a mistake 

 concerning the identity of the proper party, the 

 action would have been brought against the party . 

 . . . 

Fed. R. Civ. P. 15(c). 

 Subparagraph (1) will not help Urrutia because 

Pennsylvania courts do not take a more lenient approach to the 

relation back doctrine than do federal courts. See Nelson, 60 

F.3d at 1014 n.4 (citing Aivazoglou v. Drever Furnaces, 418 Pa. 

Super. 111, 613 A.2d 595, 599 (1992)). Subparagraph (3) may 

however permit Urrutia to identify the specific police officers 

who failed to protect him from being stabbed, and either add them 

as additional defendants or substitute them in place of the 

Harrisburg police department. Id. at 1014; Lundy v. Adamar of 

New Jersey, Inc., 34 F.3d 1173, 1183 & n.14 (3d Cir. 1994). For 

Urrutia's claim against specific police officers to relate back 

to the original complaint, all three conditions in Rule 15(c)(3) 

must be satisfied. 

 The first condition, that the claim against specific 

police officers must have arisen out of the conduct, transaction, 

or occurrence set forth or attempted to be set forth in the 
original pleading, is plainly met. It is similarly clear that 

the third condition is satisfied because Urrutia made a "mistake" 

in identifying the proper parties for this  1983 action. 

Whether or not he intended to sue the Harrisburg police 

department in addition, he certainly intended to sue the 

individual police officers who were present at the time of the 

stabbing. The initial decision to name the Harrisburg police 

department only and not the individual police officers was not a 

matter of litigation strategy, as is apparent from Urrutia's 

motion for an extension of time in which to file an amended 

complaint. See Lundy, 34 F.3d at 1183. Moreover, because, as an 

objective matter, it is a legal blunder to pursue a municipal 

defendant for the misdeeds of individual state actors, it is 

arguable that the proposed additional defendant police officers 

knew or should have known that but for the legal mistake of this 

pro se plaintiff, they would have been direct targets of the 

complaint from the outset. Urrutia will have to demonstrate that 

he meets this requirement on remand. 

 B. 

 The second and remaining condition has two

requirements, notice and the absence of prejudice, each of which 

must be satisfied. This condition presents the greatest problem 

for Urrutia, because it is subject to a time restriction over 

which he has no control. The individual police officers to be 

named in the amendment must receive such notice of the 

institution of this action within 120 days of the filing of the 

complaint that they will not be prejudiced in maintaining a 

defense on the merits. 

 Prior to the 1991 amendment to Rule 15(c), a plaintiff 

could not relate back the amendment of a defendant's name on the 

complaint unless the new defendant had notice of the suit prior 

to the expiration of the statute of limitations. Schiavone v. 

Fortune, 477 U.S. 21, 30-31 (1986). The 1991 amendment to Rule 

15(c) changed the result in Schiavone and provided that an 

amendment would relate back as long as the intended defendant 

received notice of the action within the period allowed for 

service of the summons and complaint as set forth in Fed. R. Civ. 

P. 4(m), or 120 days, whether or not the statute of limitations 

had expired in the interim. Rule 15(c) does not require that a 

plaintiff actually amend his complaint within the Rule 4(m) 

period; it speaks only of notice, lack of prejudice, and reason 

to know of a mistake within that time. 

 In Urrutia's case, an amended complaint naming the 

individual police officers has yet to be filed and the 120 day 

period from the date of the filing of the original complaint has 

long since expired. We assume that the individual police 

officers have not received notice of this action, because they 

have not been served with a complaint. Moreover, the district 

court did not authorize service of the complaint on the 

Harrisburg police department. Thus, the individual officers 

would not have been able to learn about the action through 

department channels. 

 This is not Urrutia's fault. He submitted his in formapauperis 

complaint a full two months before the statute of 
limitations was due to expire. The complaint was duly filed 

after the determination was made that Urrutia was indigent, see28 U.S.C. 

1915(a), but three months passed before the Report 

and Recommendation addressing the  1915(d) concerns was filed. 

The statute of limitations expired during this time. After 

receipt of the report, the district judge denied Urrutia's motion 

for an extension of time to amend and dismissed the complaint. 

Shortly thereafter, the 120 day period expired as well. 

 Because in cases where an amendment will be necessary, 

the delay in making a  1915(d) determination easily could 

consume the 120 day period, we hold that, once a plaintiff 

submits an in forma pauperis complaint within the limitations 

period, and where an amendment will be necessary to cure a 

defect, the 120 day period of Rule 15(c)(3) is suspended until 

the district judge authorizes issuance of the summons and service 

of the amended complaint. To hold otherwise would eviscerate 

the effect of the 1991 amendment to Rule 15(c) and mean that 

similar in forma pauperis actions would be treated differently on 

the basis of how quickly the magistrate judge and/or district 

judge acted on them. 

 This is a matter of first impression in this Circuit, 

but other courts have suspended the running of the statute of 

limitations during the pendency of an in forma pauperis motion. 

The principles guiding those decisions apply equally here, 

because "[r]elation back is intimately connected with the policy 

of the statute of limitations." Fed. R. Civ. P. 15(c) advisory 

committee's note. In Martin v. Demma, 831 F.2d 69 (5th Cir. 

1987) (per curiam), for example, a prisoner and his wife sought 

to file a  1983 action against two police officers. The 

complaint was received in the district court within the 

applicable limitations period. However, it was not actually 

filed until after the limitations period expired, because of a 

two-week delay by the magistrate judge in granting an in formapauperis 

motion. The court held that the date the complaint was 

received in the district court, rather than the date it was 

filed, would determine whether it was barred by the statute of 

limitations. The court reasoned that some administrative delay 

was inevitable whenever an in forma pauperis motion accompanied a 

complaint, but could not fairly be attributed to the in formapauperis 

plaintiff. Id. at 71. See also Jones v. Waters, 563 F. 

Supp. 817, 818 (E.D. Pa. 1983) (tolling two-year limitations 

period governed by 42 Pa. Cons. Stat. Ann.  5524 in  1983 

action during pendency of in forma pauperis motion). 

 C. 

 The tolling of the limitations period during the 

pendency of an in forma pauperis motion is particularly common in 

Title VII cases. In Ynclan v. Department of Air Force, 943 F.2d 

1388, 1391 (5th Cir. 1991), for example, the complaint was 

submitted prior to the expiration of the limitations period but 

was not actually filed until after the limitations period had 

expired. The court held that the limitations period was tolled 

during the pendency of the plaintiff's in forma pauperis and 

counsel motions. Another case supporting this view is Paulk v. 
Department of Air Force, 830 F.2d 79 (7th Cir. 1987), where a prose 

plaintiff submitted a complaint naming the Department of the 

Air Force as the defendant and an in forma pauperis motion within 

the limitations period. Id. at 80 n.1. After the limitations 

period expired, the in forma pauperis motion was granted and the 

complaint was served on the U.S. Attorney. After a motion to 

dismiss was filed, the plaintiff attempted to amend her complaint 

to name the correct party. However, the district court rejected 

the amendment and dismissed the suit because the plaintiff had 

named the wrong federal government defendant and failed to give 

actual notice of the suit to the correct party within the 

limitations period. The Court of Appeals for the Seventh Circuit 

reversed. 

 The court noted that, pursuant to Rule 15(c), service 

on the U.S. Attorney within the limitations period satisfied the 

rule's requirements for relation back of an amendment to change a 

party after the limitations period had expired. Id. at 81. 

Although the U.S. Attorney had not been served within the 

limitations period, the court held that the district court should 

have granted the plaintiff's request to amend her complaint. The 

court's explanation in Paulk is especially apposite here: 

 Because plaintiff petitioned for leave to proceed informa 

pauperis, see 28 U.S.C.  1915, the United States 

 Attorney was not actually served with the pro secomplaint for 

more than a month after the complaint was 

 filed and the statute of limitations had run. This 

 delay is fully expectable due to this Circuit's rule 

 that the district judge may consider whether the 

 complaint is frivolous or malicious before granting 

 leave to proceed in forma pauperis under  1915(a) and 

 authorizing issuance of the summons and complaint 

 (citations omitted). The delay in deciding to grant 

 this motion could easily consume the thirty-day 

 limitations period and make impracticable the filing of 

 in forma pauperis petitions in such suits. Tolling the 

 limitations period during the pendency of such a motion 

 . . . allows 28 U.S.C.  1915 and Rule 15(c) to operate 

 harmoniously, instead of denying the benefits of . . . 

 Rule 15(c) to the very plaintiffs who are most likely 

 to need it. 

Id. at 82-83. See also Warren v. Department of Army, 867 F.2d 

1156, 1161 (8th Cir. 1989) (same). 

 D. 

 In sum, we hold that the 120 day period of Rule 

15(c)(3) for satisfying the requirements for relation back of an 

amendment that changes or adds a party is suspended once a 

plaintiff submits the original in forma pauperis complaint within 

the time provided by the statute of limitations, and the 

1915(a) in forma pauperis determination is made. The 120 day 

period remains suspended while the district judge considers the 

1915(d) frivolousness question. If an amendment is necessary to 

cure defects in the complaint and an appropriate one is 

proffered, it must be permitted, see Roman, 904 F.2d at 195 n.4, 
and upon the filing of an appropriate amendment, the district 

judge must order issuance of the summons and service of the 

amended complaint. Upon the entry of that order directing 

service of the amended complaint, the suspension ends and the 120 

day period of Rule 15(c)(3) begins to run. Cf. n.14, supra. We 

agree with the Seventh Circuit in Paulk, supra, that there is a 

need for 28 U.S.C.  1915 and Rule 15(c) to operate harmoniously 

to avoid denying the benefits of Rule 15(c) to the very 

plaintiffs who are most likely to need it. See supra at 20-21. 

 Under this holding, the order of the district court 

dismissing this action under 28 U.S.C.  1915(d) must be vacated 

and the case remanded for further proceedings. On remand, 

Urrutia should be granted leave to file his amended complaint. 

If he does so and properly names the individual police officers, 

the district court should direct service of the amended 

complaint. If service of the amended complaint is made within 

the 120 day period provided for in Rule 4(m), such period to 

commence upon entry of the order directing that the amended 

complaint be served, Urrutia will have satisfied the requirement 

of notice, because actual service of the complaint clearly 

satisfies the notice requirement. 

 The additional defendants may, of course, move for 

dismissal of the amended complaint as barred by the statute of 

limitations if Urrutia does not show that they should have known 

that, but for a mistake concerning the identity of the proper 

party, the action would have been brought against them, or if 

they can show that they will be prejudiced in maintaining a 

defense. The prejudice must be actual, not hypothetical. See, 

e.g., Bechtel v. Robinson, 886 F.2d 644, 652 (3d Cir. 1989) 

(demonstrating prejudice requires party seeking dismissal of 

amended complaint to show that it was unfairly denied opportunity 

to present facts or evidence which it would have presented had 

the amendments been timely). We will leave the determination of 

these questions to the district court in the first instance. 

 IV. 

 The magistrate judge suggested other possible bases for 

dismissal of the complaint, namely, claim preclusion and improper 

venue. In answer to a question in the form civil rights 

complaint asking for a description of any lawsuits dealing with 

the same facts involved in the present action, Urrutia identified 

a prior suit against the Harrisburg Police Department, Denise 

Thompson, and Sean McCormack. The suit was filed in the "Dauphin 

County Courts," Complaint, at Part V.F.1., and was dismissed. 

 Urrutia may be precluded from bringing his civil rights 

claim in federal court. See Migra v. Warren City Sch. Dist. Bd. 

of Educ., 465 U.S. 75, 77 n.1 (1984); Allen v. McCurry, 449 U.S. 

90, 96-97 (1980) (res judicata applies to  1983 cases). "When a 

prior case has been adjudicated in a state court, federal courts 

are required by 28 U.S.C.  1738 to give full faith and credit to 

the state judgment and, in section 1983 cases, apply the same 

preclusion rules as would the courts of that state." Edmundson 

v. Borough of Kennett Square, 4 F.3d 186, 189 (3d Cir. 1993) 

(citations omitted). Hence, in this case, Pennsylvania law 

determines if Urrutia's  1983 claim should be barred. 
 Under Pennsylvania law, a final judgment on the merits 

by a court of competent jurisdiction will bar any identical 

future action between the parties and their privies. See, e.g., 

Hopewell Estates, Inc. v. Kent, 435 Pa. Super. 471, 476, 646 A.2d 

1192, 1194 (1994). All matters which might have been raised in 

the former suit as well as those that actually were raised are 

res judicata in a subsequent proceeding. Id. "In determining 

whether res judicata should apply, a court may consider whether 

the factual allegations of both actions are the same, whether the 

same evidence is necessary to prove each action and whether both 

actions seek compensation for the same damages." Hopewell 

Estates, 435 Pa. Super. at 477, 646 A.2d at 1194-95 (citing Mintz 

v. Carlton House Partners, 407 Pa. Super. 464, 475, 595 A.2d 

1240, 1246 (1991)). 

 Even though Urrutia made a vague representation that 

his present federal case arises from the same facts as in his 

state court case (see supra p. 23), we are unable to determine if 

the federal civil rights claim should have been raised in the 

prior suit, or, was raised and fully litigated before and, 

therefore, cannot now be relitigated. Neither could the 

district court make this determination on the facts before it. 

 In the usual case, if a  1915(d) dismissal based on 

the doctrine of res judicata is contemplated, the district court 

should have on hand the complaint and dismissal order from the 

prior suit. See Logan v. Moyer, 898 F.2d 356, 357 (3d Cir. 

1990). Only then can the district court have the requisite 

certainty that the relevant facts and issues support a 

determination of claim preclusion. In this case, in view of the 

anticipated addition of individual police officers as defendants, 

we think the better practice would be for the district court to 

leave the defense of res judicata, see Fed. R. Civ. P. 8(c), to 

the defendants to plead and develop as a basis for dismissal of 

the amended complaint. 

 Similarly, because there is no way of knowing at this 

time where any of the proposed additional defendant police 

officers reside, the defendants also should be the ones to raise 

a challenge of improper venue, if such a challenge is 

appropriate. At the time of filing of the complaint, Urrutia was 

incarcerated at the State Correctional Institution in Somerset, 

Pennsylvania. He filed this action in the judicial district in 

which Somerset is located, the Western District of Pennsylvania. 

The June 1993 arrest by Harrisburg police officers took place in 

Harrisburg, Pennsylvania, located in the Middle District of 

Pennsylvania. 

 Section 1983 contains no special venue provision. SeeSinwell v. 

Shapp, 536 F.2d 15, 19 (3d Cir. 1976). Therefore, the 

general venue provisions of 28 U.S.C.  1391 apply. Pursuant to 

 1391(b): 

 A civil action wherein jurisdiction is not 

 founded solely on diversity of citizenship may, 

 except as otherwise provided by law, be brought 

 only in (1) a judicial district where any 

 defendant resides, if all defendants reside in the 

 same State, (2) a judicial district in which a 
 substantial part of the events or omissions giving 

 rise to the claim occurred, . . . or (3) a 

 judicial district in which any defendant may be 

 found, if there is no district in which the action 

 may otherwise be brought. 

A defense of improper venue may be waived. Fed. R. Civ. P. 

12(h)(1). 

 Because the arrest took place in Harrisburg, venue 

would be appropriate in the Middle District. If venue is not 

also appropriate in the Western District, because subparagraph 

(1) cannot be satisfied, the defendants should seek recourse 

pursuant to a Fed. R. Civ. P. 12(b)(3) motion prior to answering 

the amended complaint. If it appears from the motion that 

venue is not proper in the Western District, the district court 

should transfer the action to the Middle District pursuant to 28 

U.S.C.  1406(a). See also Cottman Transmissions Sys., Inc. v. 

Martino, 36 F.3d 291, 296 (3d Cir. 1994). 

 V. 

 The magistrate judge also concluded that defendant 

McCormack was immune from suit because the decision to prosecute 

is a protected function. However, the absolute immunity for 

prosecutorial functions only applies in a suit for money damages. 

Imbler, 424 U.S. at 431. Urrutia did not request money damages 

in the complaint. On the other hand, Urrutia's request that 

"justice be served" is too nebulous to constitute a request for 

injunctive relief. In amending his complaint on remand Urrutia 

must specify whether he is seeking money damages or injunctive 

relief or both. If he is seeking injunctive relief, he should be 

specific about what he is seeking. If he continues to rely 

solely on his request for "justice," the district court may 

dismiss the complaint. If what Urrutia seeks is a release from 

custody, his complaint sounds in habeas corpus, not civil rights, 

see Preiser v. Rodriguez, 411 U.S. 475, 1500 (1973), and an 

assistant district attorney would not be a proper respondent, seeRule 

2(a), Rules Governing  2254 Cases. And if he seeks 

damages, the district court must consider the Imblerprosecutorial immunity 

issue. 

 VI. 

 Finally, Urrutia has alluded in his brief on appeal to 

an additional claim for false imprisonment arising from the June 

1993 arrest, and he has also described in detail a new claim of 

excessive use of force in effecting a different arrest on July 

26, 1993. Urrutia is free to add other causes of action 

concerning the June 1993 arrest pursuant to an amendment to the 

complaint (see also supra p. 10 n.7), but an amendment adding 

claims arising from a different arrest on a different day in 1993 

will not relate back and would appear to be barred by the statute 

of limitations. See Fed. R. Civ. P. 15(c)(2). 

 

 The order of the district court dismissing the 

complaint will be vacated and the case remanded for further 

proceedings consistent with this opinion.