MCINTYRE v. PA BOARD OF PROBATION & PAROLE et al

Filing 11

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE THOMAS N. ONEILL, JR ON 6/5/13. 6/6/13 ENTERED AND COPIES MAILED TO PRO SE PETITIONER. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CIVIL ACTION

JEROME MCINTYRE
v.

NO. 13-1989

PA BOARD OF PROBATION & PAROLE
COMMONWEALTH OF PENNSYLVANIA
MEMORANDUM

JUNE

O'NEILL, J.

S,

2013

Currently before the Court is plaintiff Jerome Mcintyre's
amended complaint against the Pennsylvania Board of Probation &
Parole and the Commonwealth of Pennsylvania.

For the following

reasons, the Court will dismiss the amended complaint pursuant to
28 U.S.C. § 1915(e) (2) (B) (i)

I.

&

(ii).

FACTS AND PROCEDURAL HISTORY
In his initial complaint, plaintiff asserted constitutional

claims against the Pennsylvania Board of Probation & Parole and
the Commonwealth of Pennsylvania, pursuant to 42 U.S.C. §.1983.
His claims appeared to be based on a 1997 arrest, his conviction
and imprisonment, his rearrest in 2010 while he was on probation,
and his subsequent conviction and incarceration for failing to
comply with certain registration requirements.

In a May 7, 2013

order, the Court granted plaintiff leave to proceed in forma
pauperis and dismissed his complaint pursuant to 28 U.S.C. §
1915(e) (2) (B) (ii), because he failed to state a claim against the
defendants, as they are entitled to Eleventh Amendment immunity
and are not "persons" for purposes of § 1983.

Plaintiff was

given leave to file an amended complaint in the event that he
1

could state a claim against a defendant who is not immune.

The

Court specifically informed plaintiff that any amended complaint
must allege sufficient factual matter to state a plausible claim
for relief.
Plaintiff subsequently filed an amended complaint, which is
currently before the Court.

The amended complaint does not list

any new defendants and consists wholly of legal conclusions and
conclusory statements.
II.

STANDARD OF REVIEW
A.s plaintiff is proceeding in forma pauperis, 28 U.S.C. §

1915(e) (2) (B) applies.

That provision requires the Court to

dismiss the amended complaint if it is frivolous or malicious,
fails to state a claim, or seeks monetary relief from a defendant
who is immune.
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), and is legally baseless if "based on an indisputably
meritless legal theory."
1085 (3d Cir. 1995).

Deutsch v. United States, 67 F.3d 1080,

Whether a complaint fails to state a claim

under§ 1915(e) is governed by the same standard applicable to
motions to dismiss under Federal Rule of Civil Procedure
12(b) (6), see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir.
1999), which requires the Court to determine whether the
complaint contains "sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

2

(quotations omitted).

Furthermore, courts evaluating the viability of a complaint
should "disregard legal conclusions and recitals of the elements
of a cause of action, supported by mere conclusory statements."
Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir. 2010)
(quotations omitted); see also Renfro v. Unisys Corp., 671 F.3d
314, 320 (3d Cir. 2011).

Thus, although the Court must construe

plaintiff's allegations liberally because he is proceeding pro
se, Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011), he
must recite more than "labels and conclusions" to state a claim.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

III. DISCUSSION
Here, plaintiff's amended complaint consists solely of legal
conclusions and conclusory statements.
allegations whatsoever.

It makes no factual

In any event, as explained in the

Court's May 7, 2013 order, plaintiff has no legal basis for any
claims against the Commonwealth or the Pennsylvania Department of
Probation & Parole because those defendants are entitled to
Eleventh Amendment immunity and are not "persons" for purposes of
§

1983.

See Will v. Mich. Dep't of State Police, 491 U.S. 58,

65-66 (1989); Haybarger v. Lawrence Cnty. Adult Prob. & Parole,
551 F.3d 193, 198 (3d Cir. 2008).
Plaintiff will not be given another opportunity to amend his
complaint because amendment would be futile.

See Grayson v.

Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).

He cannot

cure the defects in his claims against the Commonwealth and the
Pennsylvania Department of Probation & Parole.
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Furthermore, the

Court cannot discern any basis for a viable claim from
plaintiff's pleadings.

Any false arrest claims appear to be

time-barred, Wallace v. Kato, 549 U.S. 384, 387 & 393-94 (2007);
see also 42 Pa. Cons. Stat.

§

5524, and any claims based on

plaintiff's allegedly unconstitutional conviction and/or
incarceration would not be cognizable in a

§

1983 action.

Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005)
prisoner's

§

("[A]

See

state

1983 action is barred (absent prior invalidation [of

his conviction or sentence])- no matter the relief sought
(damages or equitable relief) , no matter the target of the
prisoner's suit (state conduct leading to conviction or internal
prison proceedings) -

if success in that action would necessarily

demonstrate the invalidity of confinement or its
duration.") (emphasis omitted); Preiser v. Rodriguez, 411 U.S.
475, 500 (1973)

("[W]hen 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.").
IV.

CONCLUSION
For the foregoing reasons, plaintiff's amended complaint is

dismissed with prejudice pursuant to 28 U.S.C.

& (ii).

An appropriate order follows.

4

§

1915(e) (2) (B) (i)