UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

EDWARD IACCARINO, : No. 4:CV-06-0063

:

Plaintiff, : Complaint filed 01/10/06

:

vs. : (Judge Muir)

:

SUPERINTENDENT GRACE, et al., : (Magistrate Judge Blewitt)

:

Defendants :

ORDER

February 27, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

This action was initiated on January 10, 2006, when

Plaintiff Edward Iaccarino filed a pro se civil rights complaint. 

The six named Defendants are all officers or employees at the

State Correctional Institution at Huntingdon, Pennsylvania. 

Iaccarino claims that the Defendants have violated a number of

his constitutional rights as a result of the manner in which they

harassed him and one of his visitors, retaliated against him for

various reasons, and disciplined him for what Iaccarino alleges

to be a false misconduct report. 

On January 10, 2006, Iaccarino also filed an application to

proceed in forma pauperis. On January 11, 2006, an

administrative order was issued which authorized prison officials

to deduct in monthly installments the filing fee for this action.

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The Clerk of Court assigned this case to us and referred it

to Magistrate Judge Blewitt for processing. On January 25, 2006,

the Magistrate Judge filed a twenty-page report recommending that

Iaccarino’s application to proceed in forma pauperis be granted

and that the complaint be dismissed pursuant to the screening

provisions of 28 U.S.C. § 1915 for Iaccarino’s failure to state a

claim upon which relief may be granted. 

Magistrate Judge Blewitt specifically held that the

allegations in the complaint fail to: 1) implicate any liberty

interest; 2) state any retaliation claim against Defendant

Seymore; 3) state any constitutional violation with respect to

the Defendants’ review of Iaccarino’s appeal from his

disciplinary hearing; 4) establish the personal involvement of

Defendants Grace, Lockett, and Hollibaugh in any of the alleged

constitutional violations; 5) state any claim resulting from the

loss of any protected liberty interest; 6) otherwise fail to

state any constitutional claim against any Defendant. Magistrate

Judge Blewitt further concluded that Iaccarino should not be

allowed an opportunity to amend his complaint because any such

attempt would be futile.

As a preliminary threshold matter, we note that the court

has not yet ruled on Iaccarino’s application to proceed in forma

pauperis. The information filed establishes Iaccarino’s ability

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to proceed in forma pauperis and we will grant his application to

proceed in that manner pursuant to the Prisoner Litigation Reform

Act. See 28 U.S.C. § 1915(a)(2).

Iaccarino’s objections to Magistrate Judge Blewitt’s Report

and Recommendation were due to have been filed by February 13,

2006. We withheld ruling on the Report and Recommendation for a

brief period to see if our receipt of Iaccarino’s objections may

have been delayed by the fact that Iaccarino is incarcerated. To

this date no objections have been filed. When no objections are

filed to the report of a Magistrate Judge, we need only review

that report as we in our discretion deem appropriate. Thomas v.

Arn, 474 U.S. 145, 151-52 (1985).

On February 21, 2006, Iaccarino filed a document entitled

“Motion for Leave to File an Amended Complaint.” The first

sentence of that document states as follows: “Plaintiff Ed

Iaccarino, pursuant to Rules 15(a) and 19(a), requests leave to

file an amended complaint by providing new issues.” (Motion for

Leave to File an Amended Complaint, p. 1)(Emphasis added)

We initially considered construing Iaccarino’s motion as

objections to Magistrate Judge Blewitt’s Report and

Recommendation. We choose not to do so because nothing in

Iaccarino’s motion addresses the merits of the Report and

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Recommendation. We will proceed to treat the Report and

Recommendation as though no objection to it has been filed.

In addition, we will not grant Iaccarino’s motion to amend

his complaint because, as Iaccarino admits, in the proposed

amendment he seeks to inject “new issues” into this case. Our

review of his motion indicates that none of the new allegations

cures the deficiencies in the complaint which are thoroughly set

forth in the Magistrate Judge’s Report and Recommendation. The

proposed amendment merely adds new facts to otherwise deficient

constitutional claims. Consequently, the proposed amendment will

not be allowed because it would be futile. See Shane v. Fauver,

213 F.3d 113, 115 (3d Cir. 2000).

As noted above, Iaccarino’s application to proceed in forma

pauperis has been granted. Granting that application triggers

our duty to screen the allegations in Iaccarino’s complaint

before it is served upon the Defendants. Title 28 U.S.C. § 1915A

imposes upon the court a duty to

review, before docketing, if feasible or, in any event, as

soon as practicable after docketing, a complaint in a civil

action in which a prisoner seeks redress from a governmental

entity or officer or employee of a governmental entity.

28 U.S.C. § 1915A(a). Subsection (b) of that statute allows for

the dismissal of any portion of such a complaint which fails to

state a claim upon which relief may be granted. 28 U.S.C. §

1915A(b)(1). Magistrate Judge Blewitt screened Iaccarino’s

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complaint pursuant to § 1915A and concluded that Iaccarino has

failed to state a claim upon which relief may be granted. 

Magistrate Judge Blewitt’s conclusions are amply supported

in his twenty-page Report and Recommendation. Our independent

review of the complaint supports those conclusions and Iaccarino

has given us no reason to disturb them. 

 We will adopt the Magistrate Judge’s Report and

Recommendation as our own and dismiss the complaint. 

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Iaccarino’s application to proceed in forma pauperis is

granted pursuant to the Prisoner Litigation Reform Act.

2. Magistrate Judge Blewitt’s report and recommendation

dated January 25, 2006, (Document 6) is adopted in

toto.

3. Iaccarino’s complaint is dismissed because it fails to

state a claim upon which relief may be granted.

4. Iaccarino’s motion to amend his complaint (Document 7)

is denied.

5. The Clerk of Court shall close this case.

6. Any appeal of this order shall be deemed frivolous, 

without probable cause, and not taken in good faith.

s/Malcolm Muir 

MUIR, U. S. District Judge

MM:ga

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