Filing 4

OPINION. Signed by Judge Robert B. Kugler on 6/4/2007. (sk)

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CROUCH v. MULVIHILL et al Doc. 4 Case 1:07-cv-00054-RBK-AMD Document 4 Filed 06/04/2007 Page 1 of 18 NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY SHANE CROUCH, Plaintiff, v. RICHARD MULVIHILL, et al., Defendants. APPEARANCES: Plaintiff pro se Shane Crouch Atlantic County Justice Facility 5060 Atlantic Avenue Mays Landing, NJ 08330 KUGLER, District Judge Plaintiff Shane Crouch, a prisoner confined at Atlantic County Justice Facility in Mays Landing, New Jersey, seeks to bring this action in forma pauperis pursuant to 42 U.S.C. 1983, alleging violations of his constitutional rights.1 Based on his : : : : : : : : : Civil Action No. 07-0054 (RBK) OPINION affidavit of indigence and the absence of three qualifying This Court previously entered an Order [2] administratively terminating this matter for failure to pre-pay the filing fee or to submit a complete application for leave to proceed in forma pauperis. Based upon Plaintiff's submission of an Application [3] for leave to proceed in forma pauperis, accompanied by his institutional account statements, as required by 28 U.S.C. 1915(a), this Court will order the Clerk of the Court to re-open the file in this matter and will proceed to screen the Complaint pursuant to 28 U.S.C. 1915 and 1915A and 42 U.S.C. 1997e. 1 Case 1:07-cv-00054-RBK-AMD Document 4 Filed 06/04/2007 Page 2 of 18 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. 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 being held in "an overcrowded housing area," that he has not been provided "proper access" to a law library, and that he has not received "proper medical care" for a gunshot wound. He names as defendants Public Safety Department Head Richard Mulvihill, ACJF Director Gary Merline, Nurse Melissa, classification officer Captain Stevenson, and Officer Clerico. Plaintiff asserts that all defendants are responsible for placing him in overcrowded housing conditions, that Nurse Melissa is responsible for not attending properly to the gunshot wound, and that all defendants except Nurse Melissa are responsible for depriving him of his right of access to a law library. 2 Case 1:07-cv-00054-RBK-AMD Document 4 Filed 06/04/2007 Page 3 of 18 Plaintiff seeks compensatory damages and injunctive relief. 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 The Court must States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). "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 The Court Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). need not, however, credit a pro se plaintiff's "bald assertions" or "legal conclusions." Id. A complaint is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989) (interpreting the predecessor of 1915(e)(2), the former 1915(d)). The standard for evaluating whether a 3 Case 1:07-cv-00054-RBK-AMD Document 4 Filed 06/04/2007 Page 4 of 18 complaint is "frivolous" is an objective one. States, 67 F.3d 1080, 1086-87 (3d Cir. 1995). Deutsch v. United A pro se complaint may be dismissed for failure to state a claim only if it appears "`beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Haines, 404 U.S. at 521 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Milhouse v. Carlson, 652 F.2d 371, 373 (3d Cir. 1981). 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 ... . 4 Case 1:07-cv-00054-RBK-AMD Document 4 Filed 06/04/2007 Page 5 of 18 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). IV. A. Overcrowding Plaintiff does not state whether he is a pre-trial detainee, a convicted but unsentenced prisoner, or a sentenced prisoner. Pre-trial detainees and convicted but unsentenced prisoners retain liberty interests firmly grounded in the Due Process Clause of the Fourteenth Amendment. See Hubbard v. Taylor, 399 ANALYSIS F.3d 150 (3d Cir. 2005); Fuentes v. Wagner, 206 F.3d 335, 341 (3d Cir. 2000). Analysis of whether such a detainee or unsentenced prisoner has been deprived of liberty without due process is governed by the standards set out by the Supreme Court in Bell v. Wolfish, 441 U.S. 520 (1979). Hubbard, 399 F.3d at 157-60, 164- 67; Fuentes, 206 F.3d at 341-42. In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, we think that the proper inquiry is whether those conditions amount to punishment of the detainee. For under the Due Process Clause, a detainee may not be punished prior to an 5 Case 1:07-cv-00054-RBK-AMD Document 4 Filed 06/04/2007 Page 6 of 18 adjudication of guilt in accordance with due process of law. ... Not every disability imposed during pretrial detention amounts to "punishment" in the constitutional sense, however. Once the government has exercised its conceded authority to detain a person pending trial, it obviously is entitled to employ devices that are calculated to effectuate this detention. ... A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose. Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on "whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it]." Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to "punishment." Conversely, if a restriction or condition is not reasonably related to a legitimate goal--if it is arbitrary or purposeless--a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees. ... 441 U.S. at 535-39 (citations omitted). The Court further explained that the government has legitimate interests that stem from its need to maintain security and order at the detention facility. "Restraints that are reasonably related to the institution's interest in maintaining jail security do not, without more, constitute unconstitutional punishment, even if they are discomforting and are restrictions that the detainee would not have experienced had he been released while awaiting trial." 441 U.S. at 540. Retribution and deterrence, however, 6 Case 1:07-cv-00054-RBK-AMD Document 4 Filed 06/04/2007 Page 7 of 18 are not legitimate nonpunitive governmental objectives. at 539 n.20. 441 U.S. Nor are grossly exaggerated responses to genuine Id. at 539 n.20, 561-62. security considerations. The Eighth Amendment to the United States Constitution, applicable to the individual states through the Fourteenth Amendment, prohibits the states from inflicting "cruel and unusual punishments" on those convicted of crimes. Chapman, 452 U.S. 337, 344-46 (1981). Rhodes v. This proscription against cruel and unusual punishments is violated by the "unnecessary and wanton infliction of pain contrary to contemporary standards of decency." Helling v. McKinney, 509 U.S. 25, 32 (1993). It is well settled that "the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Id. at 31. To state a claim under the Eighth Amendment, an inmate must allege both an objective and a subjective component. Seiter, 501 U.S. 294, 298 (1991). Wilson v. The objective component mandates that "only those deprivations denying `the minimal civilized measure of life's necessities' ... are sufficiently grave to form the basis of an Eighth Amendment violation." Helling v. McKinney, 509 U.S. at 32 (quoting Rhodes, 452 U.S. at 346). This component requires that the deprivation sustained by a prisoner be sufficiently serious, for only "extreme 7 Case 1:07-cv-00054-RBK-AMD Document 4 Filed 06/04/2007 Page 8 of 18 deprivations" are sufficient to make out an Eighth Amendment claim. Hudson v. McMillian, 503 U.S. 1, 9 (1992). The subjective component requires that the state actor have acted with "deliberate indifference," a state of mind equivalent to a reckless disregard of a known risk of harm. See Farmer v. Brennan, 511 U.S. 825, 835 (1994); Wilson, 501 U.S. at 303. A plaintiff may satisfy the objective component of an Eighth Amendment conditions-of-confinement claim if he can show that the conditions alleged, either alone or in combination, deprive him of "the minimal civilized measure of life's necessities," such as adequate food, clothing, shelter, sanitation, medical care, and personal safety. Rhodes, 452 U.S. at 347-48; Young v. Quinlan, However, while the Eighth 960 F.2d 351, 364 (3d Cir. 1992). Amendment directs that convicted prisoners not be subjected to cruel and unusual punishment, "the Constitution does not mandate comfortable prisons." Rhodes, 452 U.S. at 349. To the extent that certain conditions are only "restrictive" or "harsh," they are merely part of the penalty that criminal offenders pay for their offenses against society. Id. at 347. An inmate may fulfill the subjective element of such a claim by demonstrating that prison officials knew of such substandard conditions and "acted or failed to act with deliberate indifference to a substantial risk of harm to inmate health or safety." Florio, 968 F.Supp. 193, 198 (D.N.J. 1997). Ingalls v. 8 Case 1:07-cv-00054-RBK-AMD Document 4 Filed 06/04/2007 Page 9 of 18 Under either standard, Plaintiff's conclusory allegation of "overcrowded housing" fails to state a claim. Overcrowding in a prison setting is not itself a violation of the Constitution. See Rhodes v. Chapman, 452 U.S. at 347-48 (double-celling is not per se cruel and unusual punishment). See also Bell v. Wolfish, 441 U.S. 520 (double-celling pre-trial detainees for short periods does not constitute punishment under Due Process Clause). Overcrowding may constitute cruel and unusual punishment when it leads "to deprivations of essential food, medical care, or sanitation," or when it causes an "increase [in] violence among inmates or create[s] other conditions intolerable for prison confinement." See Rhodes, 452 U.S. at 348; Nami v. Fauver, 82 F.3d 63, 66-67 (3d Cir. 1996); Tillery v. Owens, 907 F.2d 418 (3d Cir. 1990). Here, Plaintiff has not alleged any facts suggesting that the "overcrowded housing" has caused him any deprivation or created any intolerable condition. Nor has Plaintiff alleged any facts suggesting that the defendants acted for the purpose of punishment or with deliberate indifference. Thus, the mere conclusory allegation of "overcrowded housing" is not sufficient to state a claim of constitutional deprivation. See, e.g., Halliburton v. Sunquist, 59 Fed.Appx. 781, 2003 WL 1194247 (6th Cir. 2003); Stevenson v. Whetsel, 52 Fed.Appx. 444, 2002 WL 31693490 (10th Cir. 2002). 9 Case 1:07-cv-00054-RBK-AMD Document 4 Filed 06/04/2007 Page 10 of 18 B. Medical Care As noted above, pre-trial detainees and convicted but unsentenced prisoners are protected by the Due Process Clause of the Fourteenth Amendment; convicted and sentenced prisoners are protected by the Eighth Amendment's proscription against cruel and unusual punishment. The Eighth Amendment proscription against cruel and unusual punishment requires that prison officials provide inmates with adequate medical care. (1976). Estelle v. Gamble, 429 U.S. 97, 103-04 In order to set forth a cognizable claim for a violation of his right to adequate medical care, an inmate must allege: (1) a serious medical need; and (2) behavior on the part of prison officials that constitutes deliberate indifference to that need. Id. at 106. To satisfy the first prong of the Estelle inquiry, the inmate must demonstrate that his medical needs are serious. "Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are `serious.'" (1992). Hudson v. McMillian, 503 U.S. 1, 9 Serious medical needs include those that have been diagnosed by a physician as requiring treatment or that are so obvious that a lay person would recognize the necessity for doctor's attention, and those conditions which, if untreated, 10 Case 1:07-cv-00054-RBK-AMD Document 4 Filed 06/04/2007 Page 11 of 18 would result in lifelong handicap or permanent loss. Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987), cert. denied, 486 U.S. 1006 (1988). The second element of the Estelle test requires an inmate to show that prison officials acted with deliberate indifference to his serious medical need. "Deliberate indifference" is more than mere malpractice or negligence; it is a state of mind equivalent to reckless disregard of a known risk of harm. Brennan, 511 U.S. 825, 837-38 (1994). Farmer v. Furthermore, a prisoner's subjective dissatisfaction with his medical care does not in itself indicate deliberate indifference. Andrews v. Camden County, 95 F.Supp.2d 217, 228 (D.N.J. 2000); Peterson v. Davis, 551 F.Supp. 137, 145 (D. Md. 1982), aff'd, 729 F.2d 1453 (4th Cir. 1984). Similarly, "mere disagreements over medical judgment White v. Napoleon, 897 do not state Eighth Amendment claims." F.2d 103, 110 (3d Cir. 1990). "Courts will disavow any attempt to second-guess the propriety or adequacy of a particular course of treatment ... [which] remains a question of sound professional judgment. Implicit in this deference to prison medical authorities is the assumption that such informed judgment has, in fact, been made." Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (internal quotation and citation omitted). Even if a doctor's judgment concerning the proper course of a prisoner's treatment ultimately is shown to be 11 Case 1:07-cv-00054-RBK-AMD Document 4 Filed 06/04/2007 Page 12 of 18 mistaken, at most what would be proved is medical malpractice and not an Eighth Amendment violation. White, 897 F.2d at 110. "Where prison authorities deny reasonable requests for medical treatment, however, and such denial exposes the inmate `to undue suffering or the threat of tangible residual injury,' deliberate indifference is manifest. Similarly, where `knowledge Estelle, 429 U.S. at 105-06; of the need for medical care [is accompanied by the] ... intentional refusal to provide that care,' the deliberate indifference standard has been met. ... Finally, deliberate indifference is demonstrated `[w]hen ... prison authorities prevent an inmate from receiving recommended treatment for serious medical needs or deny access to a physician capable of evaluating the need for such treatment." Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d at 346 (citations omitted). "Short of absolute denial, `if necessary medical treatment [i]s ... delayed for non-medical reasons, a case of deliberate indifference has been made out." Id. (citations omitted). "Deliberate indifference is also evident where prison officials erect arbitrary and burdensome procedures that `result[] in interminable delays and outright denials of medical care to suffering inmates.'" Id. at 347 (citation omitted). With respect to medical care for pretrial detainees, although the applicable standard is the Bell v. Wolfish 12 Case 1:07-cv-00054-RBK-AMD Document 4 Filed 06/04/2007 Page 13 of 18 "punishment" standard under the Fourteenth Amendment, pretrial detainees retain at least those constitutional rights enjoyed by convicted prisoners under the Eighth Amendment. Bell v. Wolfish, 441 U.S. at 545; Hubbard, 399 F.3d at 165-66; Natale, 318 F.3d at 581-82; Kost v. Kozakiewicz, 1 F.3d 176, 187-88 (3d Cir. 1993). Again, Plaintiff's conclusory allegation that Nurse Melissa failed to provide proper medical care is not sufficient to state a claim for a constitutional deprivation. Plaintiff has pleaded a serious medical condition, but has failed to plead any facts suggesting that Nurse Melissa acted with "deliberate indifference," or with a view toward punishment. At best, this is an allegation of medical malpractice, not actionable as a constitutional violation. C. Access to Law Library The constitutional right of access to the courts is an aspect of the First Amendment right to petition the government for redress of grievances. Bill Johnson's Restaurants, Inc. v. In addition, the constitutional NLRB, 461 U.S. 731, 741 (1983). guarantee of due process of law has as a corollary the requirement that prisoners be afforded access to the courts in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights. Procunier v. Martinez, 416 U.S. 396, 419 (1974), overruled on other grounds, Thornburgh v. Abbott, 490 U.S. 401, 413-14 (1989). See also 13 Case 1:07-cv-00054-RBK-AMD Document 4 Filed 06/04/2007 Page 14 of 18 Peterkin v. Jeffes, 855 F.2d 1021, 1036 n.18 (3d Cir. 1988) (chronicling various constitutional sources of the right of access to the courts). In Bounds v. Smith, 430 U.S. 817, 828 (1977), the Supreme Court held that "the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." to the courts is not, however, unlimited. The right of access "The tools [that Bounds] requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration." (1996) (emphasis in original). There is no "abstract, freestanding right to a law library or legal assistance, [and] an inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is subpar in some theoretical sense. ... [T]he inmate therefore must go one step further and Lewis v. Casey, 518 U.S. 343, 355 demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a [non- 14 Case 1:07-cv-00054-RBK-AMD Document 4 Filed 06/04/2007 Page 15 of 18 frivolous] legal claim. He might show, for example, that a complaint he prepared was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison's legal assistance facilities, he could not have known. Or that he had suffered arguably actionable harm that he wished to bring before the courts, but was so stymied by inadequacies of the law library that he was unable to file even a complaint." Lewis, 518 U.S. at 351. In describing the scope of services which must be provided by the state to indigent prisoners, the Supreme Court has stated, "[i]t is indisputable that indigent inmates must be provided at state expense with paper and pen to draft legal documents, with notarial services to authenticate them, and with stamps to mail them. ... This is not to say that economic factors may not be considered, for example, in choosing the methods used to provide meaningful access. But the cost of protecting a constitutional Bounds, 430 U.S. at 824- right cannot justify its total denial." 25, clarified on other grounds, Lewis v. Casey, 518 U.S. 343. Thus, "there is no First Amendment right to subsidized mail or photocopying. [Instead], the inmates must point to evidence of actual or imminent interference with access to the courts." Reynolds v. Wagner, 128 F.3d 166, 183 (3d Cir. 1997). In addition, one alternative for providing prisoners meaningful access to the courts is the provision of counsel. See 15 Case 1:07-cv-00054-RBK-AMD Document 4 Filed 06/04/2007 Page 16 of 18 e.g., Bounds, 430 U.S. at 828 (approving the provision of "adequate assistance from persons trained in the law"); Rauso v. Zimmerman, 2006 WL 3717785, *4 (M.D. Pa. 2006) (collecting cases); Pressley v. Johnson, 2006 WL 2806572, *5 (W.D. Pa. 2006) (collecting cases). Moreover, a prisoner alleging a violation of his right of access must show that prison officials caused him past or imminent "actual injury." See Lewis, 518 U.S. at 348-55 and n.3 (1996); Oliver v. Fauver, 118 F.3d 175, 177-78 (3d Cir. 1997). Here, Plaintiff has failed to allege any facts indicating that his lack of access to a law library has caused him actual injury with respect to one of the narrow class of claims, relating to the criminal charges against him or the conditions of his confinement, protected by the constitutional right of access to the courts. Plaintiff has failed to state a claim for denial of the right of access to courts. D. Rule 8 Pleading Requirements Rule 8(a) of the Federal Rules of Civil Procedure requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." While a plaintiff "need not plead facts," so long as the complaint meets the notice pleading requirements of Rule 8, see Alston v. Parker, 363 F.3d 229, 233-34 and n.6 (3d Cir. 2004), a complaint must plead facts sufficient at least to "suggest" a basis for 16 Case 1:07-cv-00054-RBK-AMD Document 4 Filed 06/04/2007 Page 17 of 18 liability, Spruill v. Gillis, 372 F.3d 218, 236 n.12 (3d Cir. 2004) (clarifying Alston). See also In re Tower Air, Inc., 416 F.3d 229, 236-38 (3d Cir. 2005) (a plaintiff should plead "basic facts," for those are necessary to provide the defendant fair notice of the plaintiff's claims and the grounds upon which it rests). Plaintiff's entire factual allegations consist of the following: All four defendants are responsible for putting me in an overcrowded housing area. Also have not provided me with proper access to a law library and proper medical care. ... Defendant #3 Nurse Practitioner Melissa. Violated my civil rights by not attending to a gun shot wound in the proper manner. Dates of these incidents started on 11-3-2006 and continue through to this present day. All Defendants are responsible for putting me in overcrowded conditions. Defendants #1 #2 #4 #5 violated my right to a law library. (Complaint, IV.) These allegations fail to meet the notice pleading requirements of Rule 8. V. CONCLUSION For the reasons set forth above, the Complaint must be dismissed without prejudice, pursuant to 28 U.S.C. 1915(e)(2)(B)(ii) and 1915A(b)(1) and 42 U.S.C. 1997e, for 17 Case 1:07-cv-00054-RBK-AMD Document 4 Filed 06/04/2007 Page 18 of 18 failure to state a claim.2 If Plaintiff can correct the deficiencies of his Complaint, he may file a motion to re-open this action. Any such motion should be accompanied by a proposed An appropriate order follows. Amended Complaint.3 S/Robert B. Kugler Robert B. Kugler United States District Judge Dated: June 4, 2007 The Court notes that "`[g]enerally, an order which 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 this action in accordance with the court rules. Plaintiff should note that when an amended complaint is 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 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. 18 3 2

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