NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

LUIS DASTAS, :

: Civil Action No. 11-4062 (FLW)

Plaintiff, :

:

v. : OPINION

:

YOLETTE C . ROSS, et al., :

:

Defendants. :

APPEARANCES:

Plaintiff pro se

Luis Dastas

Middlesex County Adult Correctional Center

New Brunswick, NJ 08903

WOLFSON, District Judge

Plaintiff Luis Dastas, a prisoner, seeks to bring this

action in forma pauperis pursuant to 42 U.S.C. § 1983, alleging

violations of his constitutional rights. Based on his affidavit

of indigence and the absence of three qualifying dismissals

within 28 U.S.C. §1915(g), the Court will grant Plaintiff’s

application to proceed in forma pauperis pursuant to 28 U.S.C.

§ 1915(a) and order the Clerk of the Court to file the

Complaint.1

 The Court notes that Plaintiff already had incurred two 1

“strikes” for purposes of the “three-strikes” provision of 28

U.S.C. § 1915(g). See Dastas v. Cicchi, 11-1473 (D.N.J.); Dastas

v. Dept. of Corrections, 01-0598 (D.N.J.).

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At this time, the Court must review the Complaint to

determine whether it should be dismissed as frivolous or

malicious, for failure to state a claim upon which relief may be

granted, or because it seeks monetary relief from a defendant who

is immune from such relief.

I. BACKGROUND

The following factual allegations are taken from Plaintiff’s

Complaint and are accepted as true for purposes of this review.

Plaintiff alleges that he is currently serving a sentence of

Community Supervision for Life (“CSL”). Plaintiff does not

describe the underlying conviction or the conditions of

supervision imposed upon his release from prison, nor has this

Court located any relevant court records.2

Plaintiff alleges that two Chairmen of the New Jersey State

Parole Board, Yolette C. Ross and James T. Plousis, failed to

hold hearings and failed to ensure that employees of the New

 Although this Court has no information regarding the 2

conviction that resulted in the sentence of Community Supervision

for Life, or the conditions of supervision, the Court notes that

the New Jersey Department of Corrections Inmate Locator reflects

that Plaintiff is presently confined at South Woods State Prison

pursuant to August 2011 convictions for violation of the

conditions of Community Supervision for Life, N.J.S.A. 2C:43-

6.4(d)(4), reported to have occurred on August 7, 2010, and for

terroristic threats, N.J.S.A. 2C:12-3(a)(3), reported to have

occurred on May 14, 2009. The report in the Inmate Locator does

not describe the nature of the violation of conditions of

Community Supervision for Life.

2

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Jersey State Parole Board held hearings before modifying his

conditions of supervision, as described below.

Plaintiff alleges that District Parole Supervisor James

Rauth and District Parole Supervisor John Malak failed to hold a

hearing before amending his conditions of supervision, on

September 20, 2007, to include a no-contact special condition.3

Plaintiff does not more fully describe the no-contact special

condition.

Plaintiff alleges that District Parole Supervisor Lt. Edward

Russo and District Parole Supervisor Cavanaugh failed to hold a

hearing before amending his conditions of supervision, on August

25, 2009, to include a no-alcohol special condition.

 Generally, New Jersey’s two-year limitations period on 3

personal injury actions, N.J. Stat. Ann. § 2A:14-2, governs

Plaintiff’s claims. See Wilson v. Garcia, 471 U.S. 261, 280

(1985); Montgomery v. DeSimone, 159 F.3d 120, 126 & n.4 (3d Cir.

1998); Cito v. Bridgewater Township Police Dept., 892 F.2d 23, 25

(3d Cir. 1989). A court may dismiss a complaint for failure to

state a claim, based on a time-bar, where “the time alleged in

the statement of a claim shows that the cause of action has not

been brought within the statute of limitations.” Bethel v.

Jendoco Construction Corp., 570 F.2d 1168, 1174 (3d Cir. 1978)

(citation omitted). Although the statute of limitations is an

affirmative defense which may be waived by the defendant, it is

appropriate to dismiss sua sponte under 28 U.S.C. § 1915(e)(2) a

pro se civil rights claim whose untimeliness is apparent from the

face of the Complaint. See, e.g., Jones v. Bock, 549 U.S. 199,

214-15 (2007) (if the allegations of a complaint, “for example,

show that relief is barred by the applicable statute of

limitations, the complaint is subject to dismissal for failure to

state a claim”).

This Complaint is dated July 11, 2011. Accordingly, the

claim for damages based upon the 2007 amendment to the conditions

of supervision is time-barred and dismissible on that ground.

3

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Plaintiff alleges that District Parole Supervisor Lt. Edward

Jackson failed to hold a hearing before amending his conditions

of supervision, on March 4, 2010, to include use of a GPS

monitoring device.

In addition to the Defendants described above, Plaintiff

also names as a Defendant the New Jersey State Parole Board.4

 The Eleventh Amendment to the United States Constitution 4

provides that, “The Judicial power of the United States shall not

be construed to extend to any suit in law or equity, commenced or

prosecuted against one of the United States by citizens of

another State, or by Citizens or Subjects of any Foreign State.”

As a general proposition, a suit by private parties seeking

to impose a liability which must be paid from public funds in a

state treasury is barred from federal court by the Eleventh

Amendment, unless Eleventh Amendment immunity is waived by the

state itself or by federal statute. See, e.g., Edelman v.

Jordan, 415 U.S. 651, 663 (1974). The Eleventh Amendment

protects states and their agencies and departments from suit in

federal court regardless of the type of relief sought. Pennhurst

State School and Hospital v. Halderman, 465 U.S. 89, 100 (1984). 

Similarly, absent consent by a state, the Eleventh Amendment bars

federal court suits for money damages against state officers in

their official capacities. See Kentucky v. Graham, 473 U.S. 159,

169 (1985). Section 1983 does not override a state’s Eleventh

Amendment immunity. Quern v. Jordan, 440 U.S. 332 (1979).

Title 28 Sections 1915(e)(2)(B)(iii) and 1915A(b)(2) require

this Court to dismiss this action if it “seeks monetary relief 

from a defendant who is immune from such relief.”

In addition, neither states, nor governmental entities that

are considered arms of the state for Eleventh Amendment purposes,

nor state officers sued in their official capacities for money

damages are persons within the meaning of § 1983. Will v.

Michigan Dept. of State Police, 491 U.S. 58, 64, 70-71 and n.10

(1989); Grabow v. Southern State Correctional Facility, 726

F.Supp. 537, 538-39 (D.N.J. 1989) (the New Jersey Department of

Corrections is not a person under § 1983).

For the foregoing reasons, all damages claims against the

4

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Plaintiff seeks monetary damages for what he alleges were

violations of his due process rights.

II. STANDARDS FOR A SUA SPONTE DISMISSAL

This Court must dismiss, at the earliest practicable time,

certain in forma pauperis and prisoner actions that are

frivolous, malicious, fail to state a claim, or seek monetary

relief from a defendant who is immune from such relief. See 28

U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C.

§ 1915A (actions in which prisoner seeks redress from a

governmental defendant); 42 U.S.C. § 1997e (prisoner actions

brought with respect to prison conditions).

In determining the sufficiency of a pro se complaint, the

Court must be mindful to construe it liberally in favor of the

plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United

States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court must

“accept as true all of the allegations in the complaint and all

reasonable inferences that can be drawn therefrom, and view them

in the light most favorable to the plaintiff.” Morse v. Lower

Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997).

In addition, any complaint must comply with the pleading

requirements of the Federal Rules of Civil Procedure.

New Jersey State Parole Board and against the individual

defendants in their official capacities will be dismissed without

prejudice for lack of jurisdiction.

5

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Rule 8(a)(2) requires that a complaint contain “a short and

plain statement of the claim showing that the pleader is entitled

to relief.” A complaint must plead facts sufficient at least to

“suggest” a basis for liability. Spruill v. Gillis, 372 F.3d

218, 236 n.12 (3d Cir. 2004). “Specific facts are not necessary;

the statement need only ‘give the defendant fair notice of what

the ... claim is and the grounds upon which it rests.’” Erickson

v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted).

While a complaint ... does not need detailed factual

allegations, a plaintiff’s obligation to provide the

“grounds” of his “entitle[ment] to relief” requires

more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will

not do, see Papasan v. Allain, 478 U.S. 265, 286, 106

S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to

dismiss, courts “are not bound to accept as true a

legal conclusion couched as a factual allegation”). 

Factual allegations must be enough to raise a right to

relief above the speculative level ... .

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citations omitted). The Twombly pleading standard applies in

civil rights actions. See Phillips v. County of Allegheny, 515

F.3d 224, 234 (3d Cir. 2008).

Context matters in notice pleading. Fair notice under

Rule 8(a)(2) depends on the type of case -- some

complaints will require at least some factual

allegations to make out a “showing that the pleader is

entitled to relief, in order to give the defendant fair

notice of what the ... claim is and the grounds upon

which it rests.” Indeed, ... we understand the Court

to instruct that a situation may arise where, at some

point, the factual detail in a complaint is so

undeveloped that it does not provide a defendant the

type of notice of claim which is contemplated by

Rule 8. Put another way, in light of Twombly, Rule

6

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8(a)(2) requires a “showing” rather than a blanket

assertion of an entitlement to relief. We caution that

without some factual allegation in the complaint, a

claimant cannot satisfy the requirement that he or she

provide not only “fair notice,” but also the “grounds”

on which the claim rests.

Phillips, 515 F.3d at 232 (citations omitted).

More recently, the Supreme Court has emphasized that, when

assessing the sufficiency of any civil complaint, a court must

distinguish factual contentions -- which allege behavior on the

part of the defendant that, if true, would satisfy one or more

elements of the claim asserted -- and “[t]hreadbare recitals of

the elements of a cause of action, supported by mere conclusory

statements.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). 

Although the Court must assume the veracity of the facts asserted

in the complaint, it is “not bound to accept as true a legal

conclusion couched as a factual allegation.” Id. at 1950. Thus,

“a court considering a motion to dismiss can choose to begin by

identifying pleadings that, because they are no more than

conclusions, are not entitled to the assumption of truth.” Id.

Therefore, after Iqbal, when presented with a

motion to dismiss for failure to state a claim,

district courts should conduct a two-part analysis. 

First, the factual and legal elements of a claim should

be separated. The District Court must accept all of

the complaint's well-pleaded facts as true, but may

disregard any legal conclusions. Second, a District

Court must then determine whether the facts alleged in

the complaint are sufficient to show that the plaintiff

has a “plausible claim for relief.” In other words, a

complaint must do more than allege the plaintiff's

entitlement to relief. A complaint has to “show” such

an entitlement with its facts. See Phillips, 515 F.3d

7

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at 234-35. As the Supreme Court instructed in Iqbal,

“[w]here the well-pleaded facts do not permit the court

to infer more than the mere possibility of misconduct,

the complaint has alleged-but it has not

‘show[n]’-‘that the pleader is entitled to relief.’” 

This “plausibility” determination will be “a

context-specific task that requires the reviewing court

to draw on its judicial experience and common sense.”

Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009)

(citations omitted).

Where a complaint can be remedied by an amendment, a

district court may not dismiss the complaint with prejudice, but

must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34

(1992); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d

Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)); Shane

v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000) (dismissal

pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg

County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).

III. SECTION 1983 ACTIONS

A plaintiff may have a cause of action under 42 U.S.C.

§ 1983 for certain violations of his constitutional rights. 

Section 1983 provides in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory ... subjects, or causes to be subjected,

any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress ... .

8

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Thus, to state a claim for relief under § 1983, a plaintiff must

allege, first, the violation of a right secured by the

Constitution or laws of the United States and, second, that the

alleged deprivation was committed or caused by a person acting

under color of state law. West v. Atkins, 487 U.S. 42, 48

(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir.

1994).

Local government units and supervisors are not liable under

§ 1983 solely on a theory of respondeat superior. See City of

Oklahoma City v. Tuttle, 471 U.S. 808, 824 n.8 (1985); Monell v.

New York City Department of Social Services, 436 U.S. 658, 690-

91, 694 (1978) (municipal liability attaches only “when execution

of a government’s policy or custom, whether made by its lawmakers

or by those whose edicts or acts may fairly be said to represent

official policy, inflicts the injury” complained of); Natale v.

Camden County Correctional Facility, 318 F.3d 575, 583-84 (3d

Cir. 2003). “A defendant in a civil rights action must have

personal involvement in the alleged wrongs, liability cannot be

predicated solely on the operation of respondeat superior. 

Personal involvement can be shown through allegations of personal

direction or of actual knowledge and acquiescence.” Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations

omitted). Accord Robinson v. City of Pittsburgh, 120 F.3d 1286,

9

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1293-96 (3d Cir. 1997); Baker v. Monroe Twp., 50 F.3d 1186, 1190-

91 (3d Cir. 1995).

The claims against Yolette C. Ross and James T. Plousis

appear to be based solely on an untenable theory of vicarious

liability and will be dismissed for failure to state a claim.

IV. ANALYSIS

A. The Due Process Claim

Plaintiff asserts that the various defendants have violated

his right to due process, by amending his conditions of Community

Supervision for Life without an advance hearing. Plaintiff has

not described the nature of the underlying conviction or the

conditions to which he was subject prior to the amendments. The

challenged amendments include a no-alcohol provision and a GPS

monitoring condition.5

Pursuant to N.J.S.A. 2C:43-6.4(a), with respect to certain

enumerated offenses, New Jersey courts must impose a special

sentence of Community Supervision for Life. An offender serving

a CSL sentence shall be supervised by the Division of Parole as

if on parole, subject to certain general conditions, and subject

to any special conditions established by the appropriate panel of

the New Jersey State Parole Board. N.J.A.C. 10A:71-6.11. A

certificate detailing the conditions of CSL supervision is

 As noted above, the 2007 no-contact condition is time- 5

barred. In any event, however, this analysis would apply to that

claim as well.

10

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delivered to the offender at the time of his release from custody

at the expiration of a term of incarceration or upon expiration

of a term of probation or parole. N.J.A.C. 10A:71-6.11(g)-(j). 

Thereafter,

Additional special conditions may be imposed by the

District Parole Supervisor, an Assistant District

Parole Supervisor or the designated representative of

the District Parole Supervisor when it is the opinion

that such conditions would reduce the likelihood of

recurrence of criminal behavior. The offender and the

Board shall be given written notice upon the imposition

of such conditions.

1. Upon notice being received by the Board, the

appropriate Board panel shall review the

offender’s case and determine whether to vacate,

modify or affirm the additional special

condition(s).

2. The Board panel shall notify the District Parole

Supervisor of its determination within three working

days of receipt of notice of the imposition of the

additional special condition(s).

3. The District Parole Supervisor shall notify the

offender in writing of the determination othe Board

panel and shall cause a written record of such notice

to be made in the offender’s case file.

4. A special condition shall not be deemed effective until

affirmed by the appropriate Board panel.

N.J.A.C. 10A:71-6.11(k). An offender who violates a condition of

a special sentence of community supervision without good cause is

guilty of a crime of the fourth degree. N.J.S.A. 2C:43-6.4(d);

N.J.A.C. 10A:71-6.11(l).

The United States Supreme Court has established certain

minimal procedural protections prior to revocation of parole or

11

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probation, including a hearing, see Morrissey v. Brewer, 408 U.S.

471 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973), but

has not considered whether such procedures apply to modifications

of the conditions of supervision for persons on probation or

parole.

As an initial matter, Plaintiff must establish a liberty

interest entitled to protection by the Due Process Clause. Here,

those would be interests in drinking alcohol and in moving freely

without GPS monitoring. Thereafter, requirements of due process

are flexible and context-specific. 

[I]dentification of the specific dictates of due

process generally requires consideration of three

distinct factors: First, the private interest that will

be affected by the official action; second, the risk of

an erroneous deprivation of such interest through the

procedures used, and the probable value, if any, of

additional or substitute procedural safeguards; and

finally, the Government's interest, including the

function involved and the fiscal and administrative

burdens that the additional or substitute procedural

requirement would entail.

Mathews v. Eldridge, 424 U.S. 319, 335 (1976). 

Applying this standard, courts have reached varying

conclusions regarding the procedures required before, or after,

changes to conditions of supervision, depending upon the specific

circumstances. Cf., e.g., Skipworth v. United States, 508 F.2d

598 (3d Cir. 1975) (due process does not require a hearing before

extension of a term of probation; however, as a matter of Court’s

supervisory authority, and because of potential for prejudice,

12

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District Courts in Third Circuit were thereafter required to

provide notice and advise federal probationer of his right to a

hearing with assistance of counsel); Meza v. Livingston, 607 F.3d

392 (5th Cir. 2010) (where offender was never convicted of a sex

crime, before sex-offender conditions can be imposed on him, he

is entitled to notice, an evidentiary hearing before an impartial

decisionmaker, and the right to confront and cross-examine

witnesses, unless good cause is shown); Jamgochian v. New Jersey

State Parole Board, 196 N.J. 222 (N.J. 2008) (sex offender who

has been successfully supervised in society for three and onehalf years is entitled to “reasonable notice and an opportunity

to be heard,” which may consist of a response by letter and/or

affidavit, within a reasonably brief period of time after

imposition of an 11-hour per day curfew from 8:00 p.m. to 7:00

a.m.; to merit a hearing, the supervised offender must deny the

allegations or contest the conclusions to be drawn from the

allegations or the rationale supporting the curfew); Dordell v.

State of Delaware, 850 S.2d 302, 2004 WL 1277160 (Del. Supr.

2004) (post-deprivation judicial review of amended condition

prohibiting contact with minors is sufficient to satisfy due

process); State v. Smith, 769 A.2d 698 (Conn. 2001) (due process

does not require notice and a hearing with benefit of counsel

prior to an order modifying terms of sex offender’s probation to

13

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include therapy) (collecting cases finding no pre-amendment

hearing required).

Here, Plaintiff has alleged only that the conditions of his

supervision were amended, without a hearing, to include GPS

monitoring and a no-alcohol provision. To raise Plaintiff’s due

process claim above the “speculative level,” however, Plaintiff

must provide the Court with at least some rudimentary factual

information that would permit it to apply the Mathews factors to

his circumstances. Such information would include, for instance,

the nature of the conviction that led to the CSL sentence, the

date of Plaintiff’s release from confinement, the progress of his

supervision after release from confinement, the reason for the

imposition of the new conditions, the circumstances under which

he was notified of the new conditions, any post-deprivation

remedies available to him and his utilization of those remedies,6

etc. In the absence of a factual context, the fact of changed

conditions of supervision, alone, does not state a claim for

violation of due process rights. The Complaint will be

dismissed.

B. Considerations Regarding the Bar of Preiser/Heck

The fact that Plaintiff appears presently to be confined

pursuant to a conviction for violation of the conditions of

 The Court notes that New Jersey prisoners generally have a 6

right to judicial review of decisions of the New Jersey State

Parole Board. See N.J. Court Rule 2:2-3(a)(2).

14

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supervision raises one additional concern. To the extent

Plaintiff is presently confined based upon a violation of one of

the challenged amended conditions of supervision, his claim may

be premature until such time as the conviction for violation of

the conditions is overturned or set aside by habeas.

In a series of cases beginning with Preiser v. Rodriguez,

411 U.S. 475 (1973), the Supreme Court has analyzed the

intersection of 42 U.S.C.§ 1983 and the federal habeas corpus

statute, 28 U.S.C. § 2254. In Preiser, state prisoners who had

been deprived of good-conduct-time credits by the New York State

Department of Correctional Services as a result of disciplinary

proceedings brought a § 1983 action seeking injunctive relief to

compel restoration of the credits, which would have resulted in

their immediate release. 411 U.S. at 476. The prisoners did not

seek compensatory damages for the loss of their credits. 411

U.S. at 494. The Court held that “when a state 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 release or a speedier release from that

imprisonment, his sole federal remedy is a writ of habeas

corpus.” Id. at 500.

In Heck v. Humphrey, 512 U.S. 477 (1994), the Court

addressed a corollary question to that presented in Preiser,

whether a prisoner could challenge the constitutionality of his

15

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conviction in a suit for damages only under § 1983, a form of

relief not available through a habeas corpus proceeding. Again,

the Court rejected § 1983 as a vehicle to challenge the

lawfulness of a criminal judgment.

[I]n order to recover damages for allegedly

unconstitutional conviction or imprisonment, or for

other harm caused by actions whose unlawfulness would

render a conviction or sentence invalid, a § 1983

plaintiff must prove that the conviction or sentence

has been reversed on direct appeal, expunged by

executive order, declared invalid by a state tribunal

authorized to make such determination, or called into

question by a federal court’s issuance of a writ of

habeas corpus, 28 U.S.C. § 2254. A claim for damages

bearing that relationship to a conviction or sentence

that has not been so invalidated is not cognizable

under § 1983.

512 U.S. at 486-87 (footnote omitted). The Court further

instructed district courts, in determining whether a complaint

states a claim under § 1983, to evaluate whether a favorable

outcome would necessarily imply the invalidity of a criminal

judgment.

Thus, when a state prisoner seeks damages in a § 1983

suit, the district court must consider whether a

judgment in favor of the plaintiff would necessarily

imply the invalidity of his conviction or sentence; if

it would, the complaint must be dismissed unless the

plaintiff can demonstrate that the conviction or

sentence has already been invalidated. But if the

district court determines that the plaintiff’s action,

even if successful, will not demonstrate the invalidity

of any outstanding criminal judgment against the

plaintiff, the action should be allowed to proceed, in

the absence of some other bar to the suit.

512 U.S. at 487 (footnotes omitted). The Court further held that

“a § 1983 cause of action for damages attributable to an

16

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unconstitutional conviction or sentence does not accrue until the

conviction or sentence has been invalidated.” Id. at 489-90.

In Edwards v. Balisok, 520 U.S. 641 (1997), the Supreme

Court applied the lessons of Preiser and Heck to a state prisoner

action, seeking compensatory and punitive damages, challenging

the constitutionality of procedures used in a prison disciplinary

proceeding that resulted in the loss of good-time credits, but

not necessarily challenging the result and not seeking the

restoration of the good-time credits. Again, the Court

emphasized that such a claim is not cognizable under § 1983 if a

favorable outcome would necessarily imply the invalidity of the

challenged judgment, there the disciplinary finding and

punishment. 520 U.S. at 646-8.

Most recently, in Wilkinson v. Dotson, 544 U.S. 74 (2005),

the Supreme Court applied these principles to hold that claims

challenging the validity of general parole procedures are

cognizable under § 1983, so long as the prisoner does not seek

injunctive relief ordering his immediate or speedier release into

the community, but rather seeks merely a new eligibility review

or parole hearing.

Here, Plaintiff asserts that certain conditions of

supervision were imposed on him in violation of his due process

rights. He seeks only compensatory damages. Nevertheless, if

Plaintiff is presently confined pursuant to a conviction for

17

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violation for one of the challenged conditions, this Court must

determine whether the Heck/Preiser line of cases would bar this

case at this time. Accordingly, in any proposed amended

complaint, Plaintiff must state the facts surrounding his

conviction for violation of the conditions of supervision.

V. CONCLUSION

For the reasons set forth above, all claims will be

dismissed, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and

1915A(b)(1), for failure to state a claim. 

7

However, because it is conceivable that Plaintiff may be

able to supplement his pleading with facts sufficient to overcome

certain deficiencies described herein, the Court will grant

Plaintiff leave to move to reopen and to file an amended

complaint. 

8

 The Court notes that “‘[g]enerally, an order which 7

dismisses a complaint without prejudice is neither final nor

appealable because the deficiency may be corrected by the

plaintiff without affecting the cause of action.’ ... The

dispositive inquiry is whether the district court’s order finally

resolved the case.” Martin v. Brown, 63 F.3d 1252, 1257-58 (3d

Cir. 1995) (quoting Borelli v. City of Reading, 532 F.2d 950, 951

(3d Cir. 1976)) (other citations omitted). In this case, if

Plaintiff can correct the deficiencies of his Complaint, he may

file a motion to re-open these claims in accordance with the

court rules.

 Plaintiff should note that when an amended complaint is 8

filed, the original complaint no longer performs any function in

the case and “cannot be utilized to cure defects in the amended

[complaint], unless the relevant portion is specifically

incorporated in the new [complaint].” 6 Wright, Miller & Kane,

Federal Practice and Procedure § 1476 (2d ed. 1990) (footnotes

omitted). An amended complaint may adopt some or all of the

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An appropriate order follows.

s/Freda L. Wolfson 

Freda L. Wolfson

United States District Judge

Dated: February 29, 2012 

allegations in the original complaint, but the identification of

the particular allegations to be adopted must be clear and

explicit. Id. To avoid confusion, the safer course is to file

an amended complaint that is complete in itself. Id.

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