IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ALLEN KELLY, :

 :

Plaintiff, : CIVIL NO. 4:CV-08-2027

 :

v. : (Judge McClure)

 :

YORK COUNTY PRISON, :

 :

 Defendant. :

 :

MEMORANDUM

August 17, 2010

I. BACKGROUND

On November 6, 2008, Plaintiff Allen Kelly (“Plaintiff” or “Kelly”), a former

inmate, initiated this pro se civil rights action by filing a Complaint pursuant to the

provisions of 42 U.S.C. § 1983. At the time of filing, Kelly was an inmate at the

York County Prison (“YCP”) in York, Pennsylvania. Kelly alleged that he was

denied access to the courts, he received inadequate medical care, he was not able to

make photocopies, he was passed over for work release, and he was unjustly placed in

the Behavioral Adjustment Unit. On January 14, 2009, we dismissed Kelly’s

Complaint under 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim. We also

denied leave to amend on grounds that amendment would be futile. 

Kelly appealed to the Third Circuit Court of Appeals. On August 7, 2009, the

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Third Circuit affirmed the dismissal of all claims, with the exception of Kelly’s claim

of retaliatory denial of employment. The judgment of the Third Circuit remanding

the case to this Court was docketed on August 31, 2009. (See Rec. Doc. No. 14.) 

The remand was for the sole purpose of allowing Kelly to file an amended complaint

limited to his claim of retaliatory denial of employment, and thereafter to conduct

such proceedings as are necessary. 

 By Order dated August 31, 2009, Kelly was directed to file an amended 

complaint limited to his claim of retaliatory denial of employment. (Rec. Doc. No.

15.) After securing two (2) extensions of time, Kelly filed his Amended Complaint

naming the York County Prison as a Defendant on December 23, 2009. (Rec. Doc.

No. 21.) Service of the Amended Complaint was directed by Order dated March 9,

2010. (Rec. Doc. No. 22.)

On May 7, 2010, Defendant filed a motion to dismiss (Rec. Doc. No. 24) and a

supporting brief (Rec. Doc. No. 25). In a motion dated May 24, 2010, Kelly

requested that the Court appoint counsel and also grant him a ninety (90) day

extension of time to file his brief in opposition to Defendant’s motion to dismiss. 

(Rec. Doc. No. 26.) By Order dated May 26, 2010, we denied Kelly’s request for

counsel, but granted his request for an extension of time. (Rec. Doc. No. 27.) 

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However, because he did not demonstrate good cause to warrant a ninety (90) day

extension, we afforded him an additional forty-five (45) days, or until July 9, 2010, to

file his opposition brief. (See id.) 

Although the deadline for Plaintiff to file his opposition expired, he neither

filed his opposition brief nor requested an additional extension of time in which to do

so. Accordingly, by Order dated July 26, 2010, we gave him a final opportunity to

file his opposition brief on or before August 9, 2010, and warned him that his failure

to do so may result in the motion to dismiss being deemed unopposed and granted

without a merits analysis. Kelly still has not filed any opposition to the pending

motion or otherwise communicated with the Court. Consequently, the motion to

dismiss will be deemed unopposed, and for the reasons set forth below, will be

granted.

II. DISCUSSION

 To state a § 1983 claim, a plaintiff must plead two essential elements: (1) the 

conduct complained of was committed by a person acting under color of state law;

and (2) 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). A prison is not a “person” within the meaning of § 1983. Will v.

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Michigan Dept. of State Police, 491 U.S. 58, 64, 70 (1989); Phippen v. Nish, 223

Fed. Appx. 191, 192 (3d Cir. 2007) (citing Fischer v. Cahill, 474 F.2d 991, 992 (3d

Cir. 1973)). The sole Defendant named by Kelly in his Amended Complaint is the

York County Prison. (See Rec. Doc. No. 21.) Because Kelly has failed to name a

proper party in this action, his Amended Complaint fails to state a claim upon which

relief may be granted, and the motion to dismiss filed on behalf of Defendant will be

granted. An appropriate Order follows.

 s/ James F. McClure, Jr. 

JAMES F. McCLURE, JR.

United States District Judge

Case 4:08-cv-02027-JFM-SF Document 29 Filed 08/17/10 Page 4 of 5
IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ALLEN KELLY, :

 :

Plaintiff, : CIVIL NO. 4:CV-08-2027

 :

v. : (Judge McClure)

 :

YORK COUNTY PRISON, :

 :

 Defendant. :

 :

ORDER

August 17, 2010

In accordance with the foregoing Memorandum, IT IS HEREBY ORDERED

THAT:

1. The unopposed motion to dismiss Plaintiff’s Amended Complaint (Rec. 

Doc. No. 24) is GRANTED.

2. The Clerk of Court is directed to CLOSE this case.

3. Any appeal from this Order will be deemed frivolous, without probable 

cause, and not taken in good faith.

 s/ James F. McClure, Jr. 

JAMES F. McCLURE, JR.

United States District Judge

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