Opinion
Civil Action. No. 05-5510.
December 1, 2005
MEMORANDUM
Plaintiff, an inmate, has filed a pro se 42 U.S.C. § 1983 civil action against the Pennsylvania Board of Probation and Parole and the Warden of the Montgomery County Correctional Facility. He alleges that his constitutional rights have been violated because he has not received credit for time that he spent in custody from May 4, 2001 to October 31, 2001. In his prayer for relief, he is requesting money damages.
With his complaint, plaintiff filed a request for leave to proceed in forma pauperis. As it appears he is unable to pay the cost of commencing this action, leave to proceed in forma pauperis is granted. For the reasons which follow, this complaint will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), without prejudice to plaintiff's right to file an amended complaint as set forth in this memorandum.
I. DISCUSSION
In order to bring suit under § 1983 plaintiff must allege that a person acting under color of state law deprived him of his constitutional rights. West v. Atkins, 487 U.S. 42 (1988). The Supreme Court has held that a "[a] state is not a person within the meaning of § 1983." Will v. Michigan Dept. of State Police, 491 U.S. 58, 64 (1989). The Pennsylvania Board of Probation and Parole may not be sued under § 1983 because such an action is, in essence, a suit against the Commonwealth of Pennsylvania. Therefore, plaintiff's claim against the Pennsylvania Board of Probation and Parole must be dismissed.
Plaintiff is also attempting to sue the Warden of the Montgomery County Correctional Facility. However, there are no allegations in the complaint regarding this defendant. Accordingly, the claim against Julio M. Algarin, Warden of the Montgomery County Correctional Facility, will be dismissed.
II. CONCLUSION
The claims against the defendants named in this civil action are dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). However, plaintiff may reinstate this action by filing an amended complaint in which he identifies the individuals who allegedly violated his constitutional rights and describes how each defendant was involved in such violations.
An appropriate Order follows.
ORDER
AND NOW, to wit, this day of December, 2005, having considered plaintiff's complaint and motion to proceed in forma pauperis, IT IS HEREBY ORDERED that:
1. Leave to proceed in forma pauperis is GRANTED;
2. This complaint is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), with leave to file an amended complaint within thirty (30) days from the date of this order, as set forth in the accompanying memorandum; and
3. The Clerk shall not issue summons unless so ordered by the Court.