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. e du/thir dc ir c uit_1996/126UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

95-3427

DONALD URRUTIA

v.

HARRISBURG COUNTY POLICE DEPT.; SEAN MCCORMACK, Asst. D.A.; DENIS THOMA SON

Donald Urrutia,

Appellant.

On Appeal from the United States District Court For the Western District of Pennsylvan ia
D.C. Civ. No. 95-cv-00068

Submitted Under 3rd Cir. LAR 34.1(a) March 1, 1996

Before: BECKER, MCKEE, and WEIS, Circuit J udges.

(Opinion Filed July 29, 1996)

Donald Urrutia

Somerset SCI
1590 Walters Mill Ro ad Somerset, PA 15510

Appellant Pro Se

OPINION OF THE COURT

BECKER, Circuit Judge.

This is an appeal by plaintiff, Donald Urr utia, from an order of the district court dismissing his civil ri ghts 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) determinationcan be prolonged because the matter often goes firs t to a

magistrate judge, who reviews the pleadings and mak es a recommendation to the district judge. The principa l question presented by the appeal is whether the 120 day peri od of Fed. R. Civ. P. 15(c)(3) for satisfying the requirements fo r relation back of an amendment that changes or adds a party i s suspended
while the district court considers the  1915(d) question so that the amendment will not be barred by a statute of li mitations 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 unab le to afford the fees. Section 1915(d), however, permits the di strict 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 complaint s can be remedied by an amendment pursuant to Fed. R. Civ. P . 15. Where that is so, a district court may not dismiss the co mplaint as frivolous and must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34 (1992). An amendment to a complain t must satisfy the statute of limitations, however. If the limita tions period has expired, in order to survive, the amendment mus t 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 individ ual police officers, instead of naming the individual police o fficers as defendants Urrutia named the Harrisburg police depa rtment itself, and respondeat superior cannot form the basis of li ability under
42 U.S.C.  1983. Rizzo v. Goode, 423 U.S. 362 (1976). Urrutia's problem was compounded by the fact that t he statute of limitations expired two months after the complaint was filed and
about seven weeks before the district court made th e  1915(d)
determination. An amendment to the complaint in which spe cific police officers would be named as additional defendants, o r substituted as defendants, was proposed by Urrutia and would ha ve 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 w ill not be prejudiced in maintaining a defense on the merits. Here, however, between the magistrate judge and the distr ict judge, the frivolousness determination consumed nearly all of the 120 day period established by Rule 15(c) for an amendment t o relate back. An in forma pauperis plaintiff has no cont rol over the
amount of time the district court takes to make the  1915(d) ruling. Where that time period is lengthy, as it w as here, itrenders the relation back doctrine essentially unav ailable to an

in forma pauperis plaintiff, because, by the time t he determination is made, even if it is that an amendm ent will be permitted, the 120 day period will have expired or be close to expiration. Therefore, we hold that, once a plaint iff submits an in forma pauperis complaint within the time provide d by the statute of limitations, and after the  1915(a) in forma pauperisdetermination is made, the 120 day period o f 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 ju dge must order issuance of the summons and service of the complain t. 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 ord er directing service of the amended complaint, the suspension en ds and the 120 day period of Rule 15(c)(3) for service begins to r un. 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, wh ich contained

amendments to  1915. Among other things, section 1915 has been amended to require courts to assess an initial part ial filing fee of 20 percent of the greater of (1) the average mon thly deposits to the prisoner's account; or (2) the average month ly balance in the prisoner's account for the prior six-month peri od whenever the prisoner's funds are insufficient to pay the fu ll filing fee. In addition, courts are now required to determine w hether a prisoner has, on three or more occasions, while inc arcerated, 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 o r 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 priso ner's complaint against a governmental entity or officer or employee of a governmental entity to determine whether it may b e dismissed as frivolous or malicious, or because it fails to stat e a claim upon which relief may be granted, or seeks monetary reli ef from a
defendant who is immune from such relief. These am endments place additional burdens on the courts and are bound to p rolong 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 becau se we believe that Urrutia's proposed amendment will relate back so long as the individual police officers will not be prejudiced i n maintaining a defense on the merits, we will vacate the order o f dismissal, and remand for further proceedings.

I. Urrutia's in forma pauperis complaint, con sisting of anoriginal complaint and an affidavit of poverty, all eged that his

due process rights were violated when, on June 9, 1 993, Denise Thompson stabbed him in the hand while he was handc uffed 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 be en vindictive in deciding to prosecute Urrutia and in dropping al l charges against Ms. Thompson. Neither monetary damages nor specific injunctive relief were requested. Instead, complai ning that he
must serve seven months because of the district att orney'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 lo cal rule, signed a form order on the affidavit of pover ty granting Urrutia leave to proceed without prepayment of fees . The complaint was filed on the same day. The magistrat e judge did not order the complaint to be served and service di d not take place at this time. Three months later, in July 19 95, the magistrate judge filed a Report and Recommendation in which he recommended that the complaint be dismissed as lega lly frivolous. In recommending dismissal of the complaint prior to service, the magistrate judge reasoned that the dis trict attorney's decision to drop the charges against Tho mpson and to prosecute Urrutia was immunized from liability purs uant to Imbler v. Pachtman, 424 U.S. 409 (1976). Since Thompson w as acting as a private citizen, no federal constitutional rights w ere implicated by her conduct, and the magistrate judge concluded that no liability could be imposed on any member of the pol ice department because there had been no allegation of their indif ference to Urrutia's safety in the complaint. Finally, he con cluded that the claim against the police department could not s tand because a municipality can only be liable under 42 U.S.C.  1983 if a plan, policy or custom that it initiated violated a plain tiff's constitutional rights, see Monell v. Department of Social Servs., 436 U.S. 658, 690 (1978), and that no such circumst ance was alleged. Urrutia filed no objections to the report, but did move for an extension of time in which to amend his comp laint. In his motion, he explained that he wished to amend his co mplaint "to plead his case with more `specificity,'" Motion For Extension of Time, at  2, and to add as defendants the police officers wh o had arrested him. The district court denied the mo tion, adopted the Report and Recommendation as the opinion of the court, and dismissed the complaint. Urrutia then filed a time ly 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 prov ides more detail about the stabbing. On the day in question, Urrutia was arrested by approximately five Harrisburg police of ficers based on a complaint made by Ms. Thompson. He contends t hat his hands were placed in handcuffs behind his back, that Ms. Thompson had aknife in her hand, which the police ignored, and th at they did

not try to stop her from attacking him. In his sub mission: After she (Ms. Thompson) stabbed me o nce, I told the five (5) police that she had just stabbed me and they did nothing. She then stabb ed me two (2) more times and they did nothing. Onl y after she
tried to stab me a fourth time did th ey intervene.
At the time of the attack I was handc uffed and in the custody of the police. If the po lice 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, 4 04 U.S. 519, 520-21 (1972), state a claim of violation of the Fi fth 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 de liberate indifference on the part of prison officials to vio lent attacks by other inmates is prohibited by the Eighth Amendm ent. Farmer v. Brennan, 114 S. Ct. 1970, 1976-77 (1994); Riley v. Jeffes, 777 F.2d 143, 147 (3d Cir. 1985). Deliberate indiffere nce means that an official acted or failed to act despite his know ledge of a substantial risk of serious harm. Farmer, 114 S. C t. at 1981. We believe that these principles apply to attacks o n 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 hi s arrest who failed to take preventive action, because respondea t 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 Suprem e 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 disc retion 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 frivol ous and no amendment would cure the defect. Roman, 904 F.2d a t 195 n.4. In view of the allegations discussed above, and subjec t to the discussion, infra, we are constrained to hold that the district court abused its discretion in denying Urrutia leav e to amend his complaint to add or substitute the individual polic e officers as defendants and to supplement the factual basis of h is claim.

III.

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

the court within the two-year limitations period ap plicable to this action. However the limitations period expire d approximately two months after the complaint was fi led, i.e. after the 1915(a) determination was made. Thus, an amendment to the complaint on remand, in which specific police o fficers are named as additional defendants, will be barred by t he statute of
limitations unless the amendment relates back to th e original complaint under Fed. R. Civ. P. 15(c). See Nelson v. County of Allegheny, 60 F.3d 1010, 1015 (3d Cir. 1995) (relat ion back rule ameliorates effect of statute of limitations), cert . denied, 116 S. Ct. 1266 (1996). Rule 15(c) permits amendments of a pleadin g 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 a pplicable to the action, or

(2) the claim or defense asserted in the amended pleading arose out of the con duct, transaction, or occurrence set forth or attempted to be set forth in the original plead ing, or

(3) the amendment changes the part y or the naming of the party against whom a cl aim is asserted if the foregoing provision ( 2) is satisfied and, within the period prov ided by Rule 4(m) for service of the summons and c omplaint, the party to be brought in by amendment ( A) has
received such notice of the instituti on of the action that the party will not be pre judiced 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 agains t the party .

. . .

Fed. R. Civ. P. 15(c). Subparagraph (1) will not help Urrutia bec ause Pennsylvania courts do not take a more lenient appr oach to the
relation back doctrine than do federal courts. See Nelson, 60 F.3d at 1014 n.4 (citing Aivazoglou v. Drever Furna ces, 418 Pa. Super. 111, 613 A.2d 595, 599 (1992)). Subparagrap h (3) may however permit Urrutia to identify the specific pol ice officers who failed to protect him from being stabbed, and e ither add them as additional defendants or substitute them in plac e 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 agains t specific police officers must have arisen out of the conduct , transaction, or occurrence set forth or attempted to be set fort h in theoriginal pleading, is plainly met. It is similarly clear that

the third condition is satisfied because Urrutia ma de a "mistake" in identifying the proper parties for this  1983 action. Whether or not he intended to sue the Harrisburg po lice department in addition, he certainly intended to su e the individual police officers who were present at the time of the stabbing. The initial decision to name the Harrisb urg police department only and not the individual police offic ers 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 acto rs, it is arguable that the proposed additional defendant pol ice officers knew or should have known that but for the legal mi stake of this pro se plaintiff, they would have been direct targe ts of the complaint from the outset. Urrutia will have to de monstrate 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 gre atest problem for Urrutia, because it is subject to a time restri ction over which he has no control. The individual police off icers to be
named in the amendment must receive such notice of the institution of this action within 120 days of the f iling of the complaint that they will not be prejudiced in maint aining 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 th e suit prior to the expiration of the statute of limitations. S chiavone v. Fortune, 477 U.S. 21, 30-31 (1986). The 1991 amend ment 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 all owed for service of the summons and complaint as set forth i n 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 re quire that a plaintiff actually amend his complaint within the R ule 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 na ming 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, b ecause they have not been served with a complaint. Moreover, t he 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 oflimitations was due to expire. The complaint was d uly filed

after the determination was made that Urrutia was i ndigent, 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 Ur rutia's motion
for an extension of time to amend and dismissed the complaint. Shortly thereafter, the 120 day period expired as w ell.
Because in cases where an amendment will b e necessary, the delay in making a  1915(d) determination easily could consume the 120 day period, we hold that, once a pl aintiff submits an in forma pauperis complaint within the l imitations period, and where an amendment will be necessary to cure a defect, the 120 day period of Rule 15(c)(3) is susp ended until the district judge authorizes issuance of the summo ns 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/o r district judge acted on them. This is a matter of first impression in th is Circuit, but other courts have suspended the running of the statute of limitations during the pendency of an in forma paup eris motion. The principles guiding those decisions apply equall y here, because "[r]elation back is intimately connected wi th 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, b ecause 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 dat e it was filed, would determine whether it was barred by the statute of
limitations. The court reasoned that some administ rative delay was inevitable whenever an in forma pauperis motion accompanied a complaint, but could not fairly be attributed to th e in formapauperis plaintiff. Id. at 71. See also Jones v. Waters, 5 63 F. Supp. 817, 818 (E.D. Pa. 1983) (tolling two-year li mitations 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 duri ng the pendency of an in forma pauperis motion is particul arly common in Title VII cases. In Ynclan v. Department of Air Fo rce, 943 F.2d 1388, 1391 (5th Cir. 1991), for example, the compla int was submitted prior to the expiration of the limitation s period but was not actually filed until after the limitations period had expired. The court held that the limitations perio d was tolled during the pendency of the plaintiff's in forma pau peris and counsel motions. Another case supporting this viewis Paulk v.Department of Air Force, 830 F.2d 79 (7th Cir. 1987 ), where a prose

plaintiff submitted a complaint naming the Departme nt 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 gr anted 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 c ourt rejected the amendment and dismissed the suit because the pl aintiff had named the wrong federal government defendant and fa iled to give actual notice of the suit to the correct party with in the limitations period. The Court of Appeals for the S eventh 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 amendme nt to change a party after the limitations period had expired. Id . at 81. Although the U.S. Attorney had not been served with in the limitations period, the court held that the distric t court should have granted the plaintiff's request to amend her c omplaint. 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 r un. This delay is fully expectable due to this Circ uit's rule that the district judge may consider wheth er the complaint is frivolous or malicious before granting leave to proceed in forma pauperis under  1915(a) and authorizing issuance of the summons and co mplaint (citations omitted). The delay in decidin g to grant this motion could easily consume the thirt y-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 benef its 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 Arm y, 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 relati on back of an amendment that changes or adds a party is suspended once a plaintiff submits the original in forma pauperis co mplaint within the time provided by the statute of limitations, an d the  1915(a) in forma pauperis determination is made. T he 120 day period remains suspended while the district judge c onsiders the  1915(d) frivolousness question. If an amendment is necessary to cure defects in the complaint and an appropriate on e is proffered, it must be permitted, see Roman, 904 F.2 d at 195 n.4,and upon the filing of an appropriate amendment, th e district

judge must order issuance of the summons and servic e of the amended complaint. Upon the entry of that order di recting service of the amended complaint, the suspension en ds and the 120 day period of Rule 15(c)(3) begins to run. Cf. n.1 4, supra. We agree with the Seventh Circuit in Paulk, supra, tha t 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 sup ra at 20-21. Under this holding, the order of the distr ict 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 pol ice officers,
the district court should direct service of the ame nded 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 th e 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 shou ld have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against t hem, or if they can show that they will be prejudiced in maint aining a defense. The prejudice must be actual, not hypothe tical. See, e.g., Bechtel v. Robinson, 886 F.2d 644, 652 (3d Ci r. 1989) (demonstrating prejudice requires party seeking dis missal of amended complaint to show that it was unfairly deni ed opportunity to present facts or evidence which it would have pr esented had the amendments been timely). We will leave the det ermination of these questions to the district court in the first instance.

IV. The magistrate judge suggested other possi ble bases for dismissal of the complaint, namely, claim preclusio n and improper venue. In answer to a question in the form civil r ights complaint asking for a description of any lawsuits dealing with the same facts involved in the present action, Urru tia identified a prior suit against the Harrisburg Police Departme nt, Denise Thompson, and Sean McCormack. The suit was filed i n 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 S ch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984); Allen v. McCu rry, 449 U.S. 90, 96-97 (1980) (res judicata applies to  1983 cases). "When a prior case has been adjudicated in a state court, f ederal courts are required by 28 U.S.C.  1738 to give full faith and credit to the state judgment and, in section 1983 cases, appl y the same preclusion rules as would the courts of that state. " Edmundson v. Borough of Kennett Square, 4 F.3d 186, 189 (3d C ir. 1993) (citations omitted). Hence, in this case, Pennsylv ania law
determines if Urrutia's  1983 claim should be barred.Under Pennsylvania law, a final judgment o n the merits

by a court of competent jurisdiction will bar any i dentical 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 be en 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 cons ider whether the factual allegations of both actions are the sam e, whether the same evidence is necessary to prove each action and whether both actions seek compensation for the same damages." H opewell 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 represent ation that his present federal case arises from the same facts as in his state court case (see supra p. 23), we are unable t o determine if the federal civil rights claim should have been rai sed in the prior suit, or, was raised and fully litigated befo re and, therefore, cannot now be relitigated. Neither coul d 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 d istrict court should have on hand the complaint and dismissal ord er from the prior suit. See Logan v. Moyer, 898 F.2d 356, 357 (3d Cir. 1990). Only then can the district court have the r equisite certainty that the relevant facts and issues suppor t a determination of claim preclusion. In this case, i n view of the anticipated addition of individual police officers as defendants, we think the better practice would be for the distr ict 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 know ing 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 complain t, 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 Dis trict of Pennsylvania. Section 1983 contains no special venue pro vision. 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 jurisdictio n is not founded solely on diversity of citize nship 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 i n which asubstantial part of the events or omi ssions giving

rise to the claim occurred, . . . or (3) a judicial district in which any defend ant may be found, if there is no district in whi ch 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 Harrisbur g, venue would be appropriate in the Middle District. If ve nue is not also appropriate in the Western District, because s ubparagraph (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 moti on that venue is not proper in the Western District, the di strict court should transfer the action to the Middle District p ursuant 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 d efendant
McCormack was immune from suit because the decision to prosecute is a protected function. However, the absolute imm unity for prosecutorial functions only applies in a suit for money damages. Imbler, 424 U.S. at 431. Urrutia did not request m oney damages in the complaint. On the other hand, Urrutia's req uest that "justice be served" is too nebulous to constitute a request for injunctive relief. In amending his complaint on re mand 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 c ourt 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 r espondent, seeRule 2(a), Rules Governing  2254 Cases. And if he seeks damages, the district court must consider the Imble rprosecutorial 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 arr est on July 26, 1993. Urrutia is free to add other causes of a ction concerning the June 1993 arrest pursuant to an amen dment to the complaint (see also supra p. 10 n.7), but an amendm ent adding claims arising from a different arrest on a differe nt 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.