BEAN v. MCFARLAND

Filing 6

MEMORANDUM OPINION & ORDER re 3 Complaint filed by TIMOTHY ALAN BEAN, JR. is dismissed without prejudice for failure to state a claim upon which relief can be granted pursuant to the screening provisions of the PLRA. Plaintiff is given until 4/2 0/2015 to file his Amended Complaint or he will be deemed to stand on the present Complaint and the case will be dismissed with prejudice at that time. Signed by Magistrate Judge Maureen P. Kelly on 3/27/2015. A copy of this order together with the Notice of Electronic Filing are being sent to Plaintiff at his address of record via first class mail. (tmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
TIMOTHY ALAN BEAN, JR.,
Plaintiff,
vs.
SAMUEL McFARLAND,
Defendant.

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Civil Action No. 15-228
Chief Magistrate Judge Maureen P. Kelly

MEMORANDUM ORDER
Timothy Alan Bean, Jr. (“Plaintiff”) has filed a civil rights Complaint, alleging that his
federal rights were violated by the sole named Defendant, Samuel McFarland, a fellow prisoner.
Plaintiff alleges only that on December 8, 2014, “Samuel McFarland, punched me in the face
because I am a sex offender and he harassed me for 2 months prior to assaulting me saying he
was going to kill me or rape me or beat me up.” ECF. No. 3 at ¶ IV.C. In response to a question
on the pre-printed civil rights form Complaint, which asked what federal law Plaintiff claims was
violated, Plaintiff answered “discrimination.” Id., at ¶ IV.A. Because Plaintiff seeks to sue
Defendant McFarland for actions that allegedly violated some unspecified federal law, the
Complaint must be dismissed because Plaintiff fails to show that Defendant McFarland acted
under color of state law and thus fails to state a claim upon which relief can be granted under 42
U.S.C. § 1983.
A. PROCEDURAL BACKGROUND
At the time of the initiation of this civil action, Plaintiff was a prisoner in the State
Correctional Institution at Pittsburgh (“SCI-Pittsburgh”). Plaintiff is proceeding pro se and his
Motion for Leave to Proceed In Forma Pauperis (“IFP Motion”) has been granted. ECF No. 2.
Service of process has not yet been made on the Defendant. Plaintiff has consented to have the

Magistrate Judge exercise plenary jurisdiction in this case. ECF No. 5. Neals v. Norwood, 59
F.3d 530, 532 (5th Cir. 1995).
B. APPLICABLE LEGAL PRINCIPLES
In the Prison Litigation Reform Act ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321
(1996), Congress adopted major changes affecting civil rights actions brought by prisoners in an
effort to curb the increasing number of frivolous and harassing law suits brought by persons in
custody. The PLRA permits courts to screen complaints filed by prisoners and dismiss them
before they are served if the complaints fail to state a claim or are frivolous or malicious. See
Santana v. United States, 98 F.3d 752, 755 (3d Cir. 1996). Because Plaintiff is a prisoner who
has been granted IFP status, the screening provisions of the PLRA apply. See 28 U.S.C.
§ 1915(e) (“[n]otwithstanding any filing fee, or any portion thereof, that may have been paid [by
a prisoner granted IFP status], the court shall dismiss the case at any time if the court determines
that – (A) the allegation of poverty is untrue; or (B) the action or appeal – (i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief.”).
In performing the Court’s mandated function of sua sponte review of complaints under
28 U.S.C. § 1915(e) to determine if they fail to state a claim upon which relief can be granted, a
federal district court applies the same standard applied to motions to dismiss under Federal Rule
of Civil Procedure 12(b)(6). See, e.g., Powell v. Hoover, 956 F. Supp. 564, 568 (M.D. Pa.
1997)(applying Rule 12(b)(6) standard to claim dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii)).
In reviewing complaints as mandated by 28 U.S.C. § 1915(e) and in applying the
standards applicable to a Rule 12(b)(6) motion to dismiss, the complaint must be read in the light
most favorable to the plaintiff and all well-pleaded, material allegations of fact in the complaint

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must be taken as true. See Estelle v. Gamble, 429 U.S. 97 (1976). Furthermore, because
Plaintiff is pro se, courts accord an even more liberal reading of the complaint, employing less
stringent standards when considering pro se pleadings than when judging the work product of an
attorney. Haines v. Kerner, 404 U.S. 519 (1972).
C. DISCUSSION
Even though Plaintiff does not specifically mention 42 U.S.C. § 1983, which is the Civil
Rights Act, in the Complaint, it is clear to this Court that Plaintiff is seeking to vindicate his
federal rights, possibly, his federal Constitutional rights to equal protection given his invocation
of the term “discrimination.” However, because Plaintiff does not have a cause of action directly
under the Constitution of the United States, nor does he identify another source of a federal right
alleged to have been violated or another basis for federal jurisdiction, a liberal reading of the
Complaint requires the Court to construe the Complaint as one invoking the Court’s federal
question jurisdiction pursuant to 42 U.S.C. § 1983. See, e.g., Arpin v. Santa Clara Valley
Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001) (“a litigant complaining of a violation of a
constitutional right does not have a direct cause of action under the United States Constitution
but must utilize 42 U.S.C. § 1983.”); Pauk v. Board of Trustees of City University of New York,
654 F.2d 856 (2d Cir 1981) (where a federal statute governing civil action for deprivation of
rights provides a remedy, i.e., 42 U.S.C. § 1983, an implied cause of action grounded on the
Constitution is not available), overruling on other grounds as recognized in, Brandman v. North
Shore Guidance Center, 636 F.Supp. 877, 879 (E.D.N.Y. 1986). Hence, the Court construes the
current civil action as alleging a cause of action under Section 1983.
To state a claim for relief under 42 U.S.C. §1983, a plaintiff must meet two threshold
requirements. He must allege: 1) that the asserted misconduct was committed by a person acting

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under color of state law; and 2) that as a result, he was deprived of rights, privileges, or
immunities secured by the Constitution or laws of the United States. West v. Atkins, 487 U.S.
42 (1988).
However, Plaintiff’s Complaint against his fellow prisoner simply fails to show that the
Defendant acted under color of state law as is required to state a claim under Section 1983. The
legal rule is that fellow prisoners do not act under color of state law and thus claims against such
fellow prisoners must be dismissed for failure to state a claim upon which relief can be granted.
See, e.g., Simonton v. Tennis, 437 F. App’x 60 (3d Cir. 2011) (affirming District Court’s
dismissal pursuant to the PLRA of a claim against a fellow inmate who allegedly assaulted a
state prisoner and finding that the fellow inmate was not a state actor and did not act under color
of state law, and thus, could not be liable under § 1983).
Accordingly, the Complaint will be dismissed without prejudice before service for failing
to state a claim upon which relief can be granted, given that the only named Defendant does not
act under color of state law.
D. LEAVE TO FILE AMENDED COMPLAINT
However, Plaintiff is hereby granted leave to file an Amended Complaint that cures the
deficiencies noted herein no later than April 20, 2015. Shane v. Fauver, 213 F.3d 113, 116 (3d
Cir. 2000) (“The Federal Rules of Civil Procedure do not address the situation in which a
deficiency in a complaint could be cured by amendment but leave to amend is not sought. Circuit

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case law, however, holds that leave to amend must be given in this situation as well.”). Failure
to file an Amended Complaint by April 20, 2015 will be deemed to mean that Plaintiff intends to
stand on the Complaint, as filed. See Thompson v. Real Estate Mortg. Network, 748 F.3d 142
(3d Cir. 2014).
BY THE COURT:
s/Maureen P. Kelly
MAUREEN P. KELLY
CHIEF UNITED STATES MAGISTRATE JUDGE
cc

Timothy Alan Bean, Jr.
KZ-3442
SCI Pittsburgh
P.O. Box 99991
Pittsburgh, PA 15233

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