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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ABDUL NEDAB )

Plaintiff )

) C.A. No. 05-221 Erie

vs. ) District Judge Mclaughlin

) Magistrate Judge Baxter

BARBARA LITTEN )

Defendant. )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION 

I. REPORT

It is respectfully recommended that this action be dismissed as legally frivolous in

accordance with 28 U.S.C. §1915(d) and the motion for leave to proceed in forma pauperis

should be denied.

II. RECOMMENDATION

Plaintiff, presently incarcerated at the State Correctional Institution at Forest in

Marienville, Pennsylvania, brings this action pro se pursuant to 42 U.S.C. § 1983. Plaintiff

claims that Defendant District Attorney Barbara Litten violated his civil rights by failing to file

criminal charges against several prison guards who allegedly assaulted him at the prison. 

Plaintiff seeks monetary relief. In addition to his complaint, Plaintiff has filed a motion to

proceed in forma pauperis. 

On April 23, 1996, the Prison Litigation Reform Act (hereinafter, “Act”), Pub.L.No.

104-134, was enacted to amend 28 U.S.C. §1915, which establishes the criteria for allowing an

action to proceed without payment of costs. Section 1915(e) as amended, states in relevant part:

“The court shall dismiss the case at any time if the court determines that -- ...(B) the action or

appeal -- (I) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted...” 

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A claim is frivolous if it: 1) is based upon an indisputably meritless legal theory and/or, 2)

contains factual contentions that are clearly baseless. Neitzke v. Williams, 490 U.S. 319, 327

(1989). A plaintiff has failed to allege a section 1983 claim if the court is satisfied “that no

relief could be granted under any set of facts that could be proved consistent with the

allegation.” Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984); Conley v. Gibson, 355 U.S.

41 (1957). This Court has discretion to dismiss frivolous or malicious in forma pauperis

complaints under 28 U.S.C. § 1915(d). Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989).

The U.S. Supreme Court has instructed that section 1915(d) provides the Court with the

authority “... to dismiss a claim based on an indisputably meritless theory, but also the unusual

power to pierce the veil of the complaint’s factual allegations and dismiss those claims whose

factual contentions are clearly baseless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). In

fact, the statute not only empowers the court to screen out frivolous cases before the complaint

is served, it actually encourages it. Roman v. Jeffes, 904 F.2d 192, 195-96 (3d Cir. 1990).

A pro se complaint, “however inartfully pleaded,” must be held to “less stringent

standards than formal pleadings drafted by lawyers” and can only be dismissed for failure to

state a claim if it appears “<beyond a doubt that the plaintiff can prove no set of facts in support

of his claim which would entitle him to relief.’” Haines v. Kerner, 404 U.S. 519, 520-

521(1972), quoting Conley, 355 U.S. at 45-46. If the court can reasonably read pleadings to

state a valid claim on which the litigant could prevail, it should be done so despite failure to cite

proper legal authority, confusion of legal theories, poor syntax and sentence construction, or

litigant’s unfamiliarity with pleading requirements. Smith v. U.S. District Court, 956 F.2d 295

(D.C.Cir. 1992); Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir. 1991); Boag v.

MacDougall, 454 U.S. 364 (1982); Haines. Under our liberal pleading rules, during the initial

stages of litigation, a district court should construe all allegations in a complaint in favor of the

complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997). See, e.g., Nami v. Fauver, 82 F.3d

63, 65 (3d Cir. 1996); Markowitz v. Northeast Land Company, 906 F.2d 100, 103 (3d Cir.

1990). 

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A prosecutor engaged in “activities [ ] intimately associated with the judicial phase of the

criminal process” is absolutely immune from section 1983 money damages. Imbler v.

Pachtman, 424 U.S. 409, 420 (1976). See also Kalina v. Fletcher, 522 U.S. 118, 125 (1997);

Buckley v. Fitzsimmons, 509 U.S. 254 (1993). Actions that relate to the prosecutor’s role as an

advocate are “judicial” actions. Mancini v. Lester, 630 F.2d 990, 993 (3d Cir. 1980). The

decision to initiate a prosecution is at the core of a prosecutor's judicial role. Imbler, 424 U.S. at

430-31. A prosecutor is absolutely immune when making this decision, even where he acts

without a good faith belief that any wrongdoing has occurred. Kulwicki v. Dawson

969 F.2d 1454, 1464 (3d Cir. 1992). Thus, Defendant Litten is absolutely immune and the case

against her should be dismissed as frivolous. 

III. CONCLUSION

For the foregoing reasons, this complaint should be dismissed as frivolous in accordance

with 28 U.S.C. § 1915(d) and the motion for leave to proceed in forma pauperis should be

denied.

In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule

72.1.4(B) of the Local Rules for Magistrates, the parties are allowed ten days from the date of

service to file objections to this Report and Recommendation. 

S/ Susan Paradise Baxter

SUSAN PARADISE BAXTER

Chief United States Magistrate Judge

Dated: September 7, 2005

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