UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHN CRUISE, : CIVIL NO. 4:06-CV-01897

:

Plaintiff : (Judge McClure)

:

v. : (Magistrate Judge Smyser)

:

WARDEN DONATE, TIM BETTI, :

TOM STAFF, RICK HORAN, :

PAT LYNN and TOM NEEDAMEN, :

:

Defendants :

REPORT AND RECOMMENDATION

On September 26, 2006, the plaintiff commenced this 42

U.S.C. § 1983 action by filing a complaint. At the time the

plaintiff filed this complaint he was a prisoner at the

Lackawanna County Prison. The plaintiff subsequently informed

the court that he is being released on home confinement and he

provided the court with his new address. 

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The complaint names as defendants 1) Warden Donate, the

Warden of the Lackawanna County Prison (LCP); 2) Tim Betti, the

Assistant Warden at the LCP; 3) Tom Staff, a counselor at the

LCP; 4) Rick Horan, a work release counselor at the LCP; 5) Pat

Lynn, a work release/house arrest counselor at the LCP; and 6)

Tom Needamen, a supervisor at the LCP. 

The plaintiff alleges that the defendants denied him

equal protection under the Fourteenth Amendment. In the

relief section of his complaint, the plaintiff states that he

would like to be treated fairly with regard to programs offered

to inmates at the LCP such as work release/home confinement. 

The plaintiff also states that inmates with political

connections are treated much better than unknown inmates. The

plaintiff further alleges that he is being held past his

maximum date which the prison and parole board have

miscalculated.

By an Order dated October 18, 2006, we reviewed the

complaint pursuant to 28 U.S.C. § 1915A and determined that the

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complaint fails to state a claim upon which relief may be

granted. We stated and reasoned as follows:

This is a 42 U.S.C. § 1983 action. 

“Section 1983 imposes civil liability upon any

person who, acting under the color of state

law, deprives another individual of any rights,

privileges, or immunities secured by the

Constitution or laws of the United States.” 

Shuman v. Penn Manor School Dist., 422 F.3d

141, 146 (3d Cir. 2005). Section 1983 “does

not create any new substantive rights but

instead provides a remedy for the violation of

a federal constitutional or statutory right.”

Id. “To state a claim under § 1983, a

plaintiff ‘must allege both a deprivation of a

federally protected right and that this

deprivation was committed by one acting under

color of state law.’” Woloszyn v. County of

Lawrence, 396 F.3d 314, 319 (3d Cir.

2005)(quoting Lake v. Arnold, 112 F.3d 682, 689

(3d Cir. 1997)).

Federal Rule of Civil Procedure 8(a)(2)

requires no more than that a complaint include

“a short and plain statement of the claim

showing that the pleader is entitled to

relief.” “Complaints ‘need not plead law or

match facts to every element of a legal

theory.’” Weston v. Pennsylvania, 251 F.3d 420,

429 (3d Cir. 2001)(quoting Krieger v. Fadely,

211 F.3d 134, 136 (D.C.Cir. 2000)). “[A]

plaintiff generally need not explicitly allege

the existence of every element in a cause of

action if fair notice of the transaction is

given and the complaint sets forth the material

points necessary to sustain recovery.”

Menkowitz v. Pottstown Memorial Medical Center,

154 F.3d 113, 124 (3d Cir. 1998). The

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statement required by Rule 8(a)(2) “must simply

‘give the defendant fair notice of what the

plaintiff’s claim is and the grounds upon which

it rests.’” Swierkiewicz v. Sorema, 534 U.S.

506, 512 (2002)(quoting Conley v. Gibson, 355

U.S. 41, 47 (1957)). “This simplified notice

pleading standard relies on liberal discovery

rules and summary judgment motions to define

disputed facts and issues and to dispose of

unmeritorious claims.” Id. The notice pleading

standard applies to 42 U.S.C. § 1983 cases.

Alston v. Parker, 363 F.3d 229, 233 (3d Cir.

2004)(holding that civil rights complaints are

not required to meet a heightened pleading

standard but are subject to the liberal

standards of notice pleading).

Considering the plaintiff’s complaint

liberally under the notice pleading standard,

we nevertheless conclude that the complaint

fails to state a claim against the defendants

upon which relief may be granted. The

plaintiff has not alleged the basis for his

claims against the defendants. Although the

plaintiff alleges generally that the defendants

denied him equal protection, he has not alleged

what actions the defendants took that are

suppose to have been in violation of his equal

protection rights. Accordingly, the complaint

does not provide the defendants with fair

notice of what the plaintiff’s claims are and

the grounds upon which the claims rest.

The plaintiff alleges that he is being

held past his maximum date. In Preiser v.

Rodriguez, 411 U.S. 475, 500 (1973), the Court

held that when a prisoner “is challenging the

very fact or duration of his physical

imprisonment, and the relief he seeks is a

determination that he is entitled to immediate

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release or a speedier release from that

imprisonment, his sole federal remedy is a writ

of habeas corpus.” To the extent that the

plaintiff is seeking release from custody he

must pursue that claim in a habeas corpus case

not in a 42 U.S.C. § 1983 case such as the

instant case.

Doc. 9 at 3-6.

Before dismissing a complaint for failure to state a

claim upon which relief may be granted pursuant to the

screening provisions of 28 U.S.C. § 1915A, the court must grant

the plaintiff leave to amend his complaint unless amendment

would be inequitable or futile. See Grayson v. Mayview State

Hospital, 293 F.3d 103, 114 (3 Cir. 2002). In the instant rd

case, by the Order dated October 18, 2006, we granted the

plaintiff leave to file an amended complaint to attempt, if

appropriate, to state a claim upon which relief may be granted. 

The plaintiff was granted leave to file an amended complaint on

or before November 20, 2006. The Order of October 18, 2006

warned the plaintiff that if he fails to file an amended

complaint we will recommend that the complaint be dismissed and

that this case be closed.

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The plaintiff has not filed an amended complaint. 

Accordingly, it will be recommended that the complaint be

dismissed pursuant to 28 U.S.C. § 1915A for failure to state a

claim upon which relief may be granted.

Based on the foregoing, it is recommended that the

complaint be dismissed pursuant to 28 U.S.C. § 1915A for

failure to state a claim upon which relief may be granted and

that the case file be closed.

/s/ J. Andrew Smyser

J. Andrew Smyser

Magistrate Judge

Dated: December 12, 2006.

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