Civ. A. No. 69-1983 | E.D. Pa. | Mar 16, 1970
MEMORANDUM AND ORDER
Although framed as a civil rights action under 42 U.S.C. § 1983, plaintiff in this suit is essentially asking both for habeas corpus relief and for damages under the civil rights act.
Insofar as this may be considered a petition for a writ of habeas corpus, the petition is denied for failure to exhaust state remedies. Additionally, we might point out to the relator that particular habeas corpus forms are available at the institution where he is incarcerated which should be completed if he again files for habeas corpus relief in the federal courts.
Insofar as this may be considered a civil rights action, plaintiff’s petition for leave to proceed in forma pauperis is denied because the action is plainly lacking in merit. The Commonwealth of Pennsylvania and the Board of Parole are not “persons” within the meaning of 19 U.S.C. § 1983. United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84" date_filed="1969-07-10" court="3rd Cir." case_name="United States Ex Rel. Jack v. County of Philadelphia">413 F.2d 84 (3 Cir., 1969) (Commonwealth of Pennsylvania) and Bennett v. California, 406 F.2d 36" date_filed="1969-04-07" court="9th Cir." case_name="Frank Hale Bennett v. People of the State of California">406 F.2d 36 (9 Cir. 1969) (Parole Boards). In addition, individual members of parole boards are immune from suits for damages when, as here, they are only alleged to have acted within their legal authority. Bennett v. California, supra. Finally, although the warden, of Holmesburg Prison is named as a defendant in the caption, no allegations are directed at him. Hence, he cannot be considered a defendant in the civil rights action, but only the respondent in the habeas corpus petition.
ORDER
And now, this 16 day of March, 1970, it is ordered that relator’s petition for a writ of habeas corpus be and the same is hereby denied, without prejudice. There is no probable cause for appeal; it is further ordered that plaintiff’s petition for leave to proceed in forma pauperis be and the same is hereby denied.