                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-29-1996

Urrutia v. Harrisburg Pol Dept
Precedential or Non-Precedential:

Docket 95-3427




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Recommended Citation
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                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT



                              95-3427


                           DONALD URRUTIA

                                     v.

                 HARRISBURG COUNTY POLICE DEPT.;
            SEAN MCCORMACK, Asst. D.A.; DENIS THOMASON

                          Donald Urrutia,

                                     Appellant.



         On Appeal from the United States District Court
             For the Western District of Pennsylvania
                    D.C. Civ. No. 95-cv-00068



              Submitted Under 3rd Cir. LAR 34.1(a)
                         March 1, 1996

        Before:   BECKER, MCKEE, and WEIS, Circuit Judges.

                   (Opinion Filed July 29, 1996)


                                Donald Urrutia
                                Somerset SCI
                                1590 Walters Mill Road
                                Somerset, PA 15510

                                Appellant Pro Se



                         OPINION OF THE COURT


BECKER, Circuit Judge.

         This is an appeal by plaintiff, Donald Urrutia, from an
order of the district court dismissing his civil rights
complaint, 42 U.S.C.   1983, as legally frivolous pursuant to 28
U.S.C.   1915(d), and denying him the opportunity to amend his
complaint to correct the defects. The    1915(d) determination
can be prolonged because the matter often goes first to a
magistrate judge, who reviews the pleadings and makes a
recommendation to the district judge. The principal question
presented by the appeal is whether the 120 day period of Fed. R.
Civ. P. 15(c)(3) for satisfying the requirements for relation
back of an amendment that changes or adds a party is suspended
while the district court considers the   1915(d) question so that
the amendment will not be barred by a statute of limitations that
expires after the complaint is filed.
         The version of section 1915(a) of Title 28 in effect
during the time when Urrutia's complaint was under consideration
in the district court provided for the filing of a complaint
without prepayment of fees by a person who was unable to afford
the fees. Section 1915(d), however, permits the district court
to consider whether an in forma pauperis complaint is frivolous
or malicious before authorizing issuance of the summons and
service of the complaint. Some frivolous complaints can be
remedied by an amendment pursuant to Fed. R. Civ. P. 15. Where
that is so, a district court may not dismiss the complaint as
frivolous and must permit the amendment. Denton v. Hernandez,
504 U.S. 25, 34 (1992). An amendment to a complaint must satisfy
the statute of limitations, however. If the limitations period
has expired, in order to survive, the amendment must relate back
to the original complaint under Rule 15(c).
         Urrutia alleged in his original complaint that the
police, after handcuffing him, stood by and watched while another
individual stabbed him. The original filing, which occurred
after the magistrate judge ruled that Urrutia could not afford to
pay the filing fees under   1915(a), was within the statute of
limitations. The complaint was, however, defective. This is
because, even though it alleged misdeeds by individual police
officers, instead of naming the individual police officers as
defendants Urrutia named the Harrisburg police department itself,
and respondeat superior cannot form the basis of liability under
42 U.S.C.   1983. Rizzo v. Goode, 423 U.S. 362 (1976).
Urrutia's problem was compounded by the fact that the statute of
limitations expired two months after the complaint was filed and
about seven weeks before the district court made the   1915(d)
determination.
         An amendment to the complaint in which specific police
officers would be named as additional defendants, or substituted
as defendants, was proposed by Urrutia and would have cured the
defect, if it related back under Rule 15(c). Among the several
conditions in Rule 15(c) that must be satisfied for an amendment
to relate back is that the individuals to be added as defendants
must receive such notice of the institution of the action within
120 days of the filing of the complaint that they will not be
prejudiced in maintaining a defense on the merits. Here,
however, between the magistrate judge and the district judge, the
frivolousness determination consumed nearly all of the 120 day
period established by Rule 15(c) for an amendment to relate back.
         An in forma pauperis plaintiff has no control over the
amount of time the district court takes to make the   1915(d)
ruling. Where that time period is lengthy, as it was here, it
renders the relation back doctrine essentially unavailable to an
in forma pauperis plaintiff, because, by the time the
determination is made, even if it is that an amendment will be
permitted, the 120 day period will have expired or be close to
expiration. Therefore, we hold that, once a plaintiff submits an
in forma pauperis complaint within the time provided by the
statute of limitations, and after the   1915(a) in forma
pauperisdetermination is made, the 120 day period of Rule 15(c)(3) for
satisfying the requirements for relation back of an amendment
that changes or adds a party is suspended while the district
court considers the   1915(d) question. If an amendment will
cure defects in the complaint, it must be permitted, and upon the
filing of an appropriate amendment, the district judge must order
issuance of the summons and service of the complaint. SeeDenton, 504 U.S.
at 34; see also Roman v. Jeffes, 904 F.2d 192,
195 n.4 (3d Cir. 1990). Upon the entry of that order directing
service of the amended complaint, the suspension ends and the 120
day period of Rule 15(c)(3) for service begins to run.
         We address today the version of 28 U.S.C.   1915 in
effect during the time when Urrutia's complaint was under
consideration in the district court. On April 26, 1996, and
while this appeal was pending, the President signed into law the
omnibus fiscal year 1996 appropriations measure, which contained
amendments to   1915. Among other things, section 1915 has been
amended to require courts to assess an initial partial filing fee
of 20 percent of the greater of (1) the average monthly deposits
to the prisoner's account; or (2) the average monthly balance in
the prisoner's account for the prior six-month period whenever
the prisoner's funds are insufficient to pay the full filing fee.
In addition, courts are now required to determine whether a
prisoner has, on three or more occasions, while incarcerated,
brought an action or appeal in a federal court that was dismissed
on the grounds that it was frivolous, malicious, or failed to
state a claim upon which relief may be granted. If so, the
prisoner's new action must be dismissed unless he or she is in
imminent danger of serious physical injury.
         A new provision, 28 U.S.C. 1915A, provides that courts
shall review, before docketing if feasible, a prisoner's
complaint against a governmental entity or officer or employee of
a governmental entity to determine whether it may be dismissed as
frivolous or malicious, or because it fails to state a claim upon
which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. These amendments place
additional burdens on the courts and are bound to prolong the
1915 determination. Our holding today thus retains vitality.
         Because we believe that the district court erred in
resolving the   1915(d) question, specifically by refusing
Urrutia's request to amend his complaint, and because we believe
that Urrutia's proposed amendment will relate back so long as the
individual police officers will not be prejudiced in maintaining
a defense on the merits, we will vacate the order of dismissal,
and remand for further proceedings.
                                I.
         Urrutia's in forma pauperis complaint, consisting of an
original complaint and an affidavit of poverty, alleged that his
due process rights were violated when, on June 9, 1993, Denise
Thompson stabbed him in the hand while he was handcuffed and in
the custody of the police. The complaint named as defendants
Thompson, the Harrisburg Police Department, and the Assistant
District Attorney of Dauphin County, Sean McCormack. The
complaint alleged that the district attorney had been vindictive
in deciding to prosecute Urrutia and in dropping all charges
against Ms. Thompson. Neither monetary damages nor specific
injunctive relief were requested. Instead, complaining that he
must serve seven months because of the district attorney's
alleged vindictiveness, Urrutia merely asked that "justice be
served." Complaint, at Part VI.
         On April 5, 1995, the magistrate judge, to whom the informa
pauperis complaint had been referred pursuant to local
rule, signed a form order on the affidavit of poverty granting
Urrutia leave to proceed without prepayment of fees. The
complaint was filed on the same day. The magistrate judge did
not order the complaint to be served and service did not take
place at this time. Three months later, in July 1995, the
magistrate judge filed a Report and Recommendation in which he
recommended that the complaint be dismissed as legally frivolous.
         In recommending dismissal of the complaint prior to
service, the magistrate judge reasoned that the district
attorney's decision to drop the charges against Thompson and to
prosecute Urrutia was immunized from liability pursuant to Imbler
v. Pachtman, 424 U.S. 409 (1976). Since Thompson was acting as a
private citizen, no federal constitutional rights were implicated
by her conduct, and the magistrate judge concluded that no
liability could be imposed on any member of the police department
because there had been no allegation of their indifference to
Urrutia's safety in the complaint. Finally, he concluded that
the claim against the police department could not stand because a
municipality can only be liable under 42 U.S.C.   1983 if a plan,
policy or custom that it initiated violated a plaintiff's
constitutional rights, see Monell v. Department of Social Servs.,
436 U.S. 658, 690 (1978), and that no such circumstance was
alleged.
         Urrutia filed no objections to the report, but did move
for an extension of time in which to amend his complaint. In his
motion, he explained that he wished to amend his complaint "to
plead his case with more `specificity,'" Motion For Extension of
Time, at   2, and to add as defendants the police officers who
had arrested him. The district court denied the motion, adopted
the Report and Recommendation as the opinion of the court, and
dismissed the complaint. Urrutia then filed a timely notice of
appeal and a motion to proceed in forma pauperis on appeal. The
motion to proceed in forma pauperis was granted by the district
court.
         In his brief filed on appeal, Urrutia provides more
detail about the stabbing. On the day in question, Urrutia was
arrested by approximately five Harrisburg police officers based
on a complaint made by Ms. Thompson. He contends that his hands
were placed in handcuffs behind his back, that Ms. Thompson had a
knife in her hand, which the police ignored, and that they did
not try to stop her from attacking him. In his submission:
              After she (Ms. Thompson) stabbed me once, I told
              the five (5) police that she had just stabbed me
              and they did nothing. She then stabbed me two (2)
              more times and they did nothing. Only after she
              tried to stab me a fourth time did they intervene.
              At the time of the attack I was handcuffed and in
              the custody of the police. If the police had
              placed me in the police vehicle after they
              handcuffed me rather than leaving me to be exposed
              while in a defenseless position, the stabbing
              could have been avoided.

Appellant's Informal Brief, at 2. Urrutia suffered scars and
lacerations as a result of the stabbing.
                               II.
         We believe that the allegations of Urrutia's complaint,
construed liberally in light of Haines v. Kerner, 404 U.S. 519,
520-21 (1972), state a claim of violation of the Fifth and
Fourteenth Amendments provided that the individual police
officers can be added or substituted as defendants. Using a
familiar referent, he is certainly entitled to the level of
protection provided by the Eighth Amendment, and deliberate
indifference on the part of prison officials to violent attacks
by other inmates is prohibited by the Eighth Amendment. Farmer
v. Brennan, 114 S. Ct. 1970, 1976-77 (1994); Riley v. Jeffes, 777
F.2d 143, 147 (3d Cir. 1985). Deliberate indifference means that
an official acted or failed to act despite his knowledge of a
substantial risk of serious harm. Farmer, 114 S. Ct. at 1981.
We believe that these principles apply to attacks on persons in
custody, whether or not by another inmate, and that the
circumstances described above state a nonfrivolous claim of
deliberate indifference, at a minimum.
         However, Urrutia will have a viable claim only if he
identifies the police officers present following his arrest who
failed to take preventive action, because respondeat superior
cannot form the basis of liability under 42 U.S.C.   1983. SeeRizzo, 423
U.S. at 362. In Denton, 504 U.S. at 34, the Supreme
Court explained that "if it appears that frivolous factual
allegations could be remedied through more specific pleading, a
court of appeals reviewing a   1915(d) disposition should
consider whether the District Court abused its discretion by
dismissing the complaint with prejudice or without leave to
amend." We have held that dismissal under    1915(d) is
appropriate only when the complaint is truly frivolous and no
amendment would cure the defect. Roman, 904 F.2d at 195 n.4. In
view of the allegations discussed above, and subject to the
discussion, infra, we are constrained to hold that the district
court abused its discretion in denying Urrutia leave to amend his
complaint to add or substitute the individual police officers as
defendants and to supplement the factual basis of his claim.
                               III.
                                A.
         We underscore that Urrutia's complaint was submitted to
the court within the two-year limitations period applicable to
this action. However the limitations period expired
approximately two months after the complaint was filed, i.e.
after the 1915(a) determination was made. Thus, an amendment to
the complaint on remand, in which specific police officers are
named as additional defendants, will be barred by the statute of
limitations unless the amendment relates back to the original
complaint under Fed. R. Civ. P. 15(c). See Nelson v. County of
Allegheny, 60 F.3d 1010, 1015 (3d Cir. 1995) (relation back rule
ameliorates effect of statute of limitations), cert. denied, 116
S. Ct. 1266 (1996).
         Rule 15(c) permits amendments of a pleading to relate
back to the date of the original pleading when:
                 (1) relation back is permitted by the law that
              provides the statute of limitations applicable to
              the action, or

                 (2) the claim or defense asserted in the
              amended pleading arose out of the conduct,
              transaction, or occurrence set forth or attempted
              to be set forth in the original pleading, or

                 (3) the amendment changes the party or the
              naming of the party against whom a claim is
              asserted if the foregoing provision (2) is
              satisfied and, within the period provided by Rule
              4(m) for service of the summons and complaint, the
              party to be brought in by amendment (A) has
              received such notice of the institution of the
              action that the party will not be prejudiced in
              maintaining a defense on the merits, and (B) knew
              or should have known that, but for a mistake
              concerning the identity of the proper party, the
              action would have been brought against the party .
              . . .

Fed. R. Civ. P. 15(c).
         Subparagraph (1) will not help Urrutia because
Pennsylvania courts do not take a more lenient approach to the
relation back doctrine than do federal courts. See Nelson, 60
F.3d at 1014 n.4 (citing Aivazoglou v. Drever Furnaces, 418 Pa.
Super. 111, 613 A.2d 595, 599 (1992)). Subparagraph (3) may
however permit Urrutia to identify the specific police officers
who failed to protect him from being stabbed, and either add them
as additional defendants or substitute them in place of the
Harrisburg police department. Id. at 1014; Lundy v. Adamar of
New Jersey, Inc., 34 F.3d 1173, 1183 & n.14 (3d Cir. 1994). For
Urrutia's claim against specific police officers to relate back
to the original complaint, all three conditions in Rule 15(c)(3)
must be satisfied.
         The first condition, that the claim against specific
police officers must have arisen out of the conduct, transaction,
or occurrence set forth or attempted to be set forth in the
original pleading, is plainly met. It is similarly clear that
the third condition is satisfied because Urrutia made a "mistake"
in identifying the proper parties for this   1983 action.
Whether or not he intended to sue the Harrisburg police
department in addition, he certainly intended to sue the
individual police officers who were present at the time of the
stabbing. The initial decision to name the Harrisburg police
department only and not the individual police officers was not a
matter of litigation strategy, as is apparent from Urrutia's
motion for an extension of time in which to file an amended
complaint. See Lundy, 34 F.3d at 1183. Moreover, because, as an
objective matter, it is a legal blunder to pursue a municipal
defendant for the misdeeds of individual state actors, it is
arguable that the proposed additional defendant police officers
knew or should have known that but for the legal mistake of this
pro se plaintiff, they would have been direct targets of the
complaint from the outset. Urrutia will have to demonstrate that
he meets this requirement on remand.
                                B.
         The second and remaining condition has two
requirements, notice and the absence of prejudice, each of which
must be satisfied. This condition presents the greatest problem
for Urrutia, because it is subject to a time restriction over
which he has no control. The individual police officers to be
named in the amendment must receive such notice of the
institution of this action within 120 days of the filing of the
complaint that they will not be prejudiced in maintaining a
defense on the merits.
         Prior to the 1991 amendment to Rule 15(c), a plaintiff
could not relate back the amendment of a defendant's name on the
complaint unless the new defendant had notice of the suit prior
to the expiration of the statute of limitations. Schiavone v.
Fortune, 477 U.S. 21, 30-31 (1986). The 1991 amendment to Rule
15(c) changed the result in Schiavone and provided that an
amendment would relate back as long as the intended defendant
received notice of the action within the period allowed for
service of the summons and complaint as set forth in Fed. R. Civ.
P. 4(m), or 120 days, whether or not the statute of limitations
had expired in the interim. Rule 15(c) does not require that a
plaintiff actually amend his complaint within the Rule 4(m)
period; it speaks only of notice, lack of prejudice, and reason
to know of a mistake within that time.
         In Urrutia's case, an amended complaint naming the
individual police officers has yet to be filed and the 120 day
period from the date of the filing of the original complaint has
long since expired. We assume that the individual police
officers have not received notice of this action, because they
have not been served with a complaint. Moreover, the district
court did not authorize service of the complaint on the
Harrisburg police department. Thus, the individual officers
would not have been able to learn about the action through
department channels.
         This is not Urrutia's fault. He submitted his in formapauperis
complaint a full two months before the statute of
limitations was due to expire. The complaint was duly filed
after the determination was made that Urrutia was indigent, see28 U.S.C.
1915(a), but three months passed before the Report
and Recommendation addressing the   1915(d) concerns was filed.
The statute of limitations expired during this time. After
receipt of the report, the district judge denied Urrutia's motion
for an extension of time to amend and dismissed the complaint.
Shortly thereafter, the 120 day period expired as well.
         Because in cases where an amendment will be necessary,
the delay in making a   1915(d) determination easily could
consume the 120 day period, we hold that, once a plaintiff
submits an in forma pauperis complaint within the limitations
period, and where an amendment will be necessary to cure a
defect, the 120 day period of Rule 15(c)(3) is suspended until
the district judge authorizes issuance of the summons and service
of the amended complaint. To hold otherwise would eviscerate
the effect of the 1991 amendment to Rule 15(c) and mean that
similar in forma pauperis actions would be treated differently on
the basis of how quickly the magistrate judge and/or district
judge acted on them.
         This is a matter of first impression in this Circuit,
but other courts have suspended the running of the statute of
limitations during the pendency of an in forma pauperis motion.
The principles guiding those decisions apply equally here,
because "[r]elation back is intimately connected with the policy
of the statute of limitations." Fed. R. Civ. P. 15(c) advisory
committee's note. In Martin v. Demma, 831 F.2d 69 (5th Cir.
1987) (per curiam), for example, a prisoner and his wife sought
to file a   1983 action against two police officers. The
complaint was received in the district court within the
applicable limitations period. However, it was not actually
filed until after the limitations period expired, because of a
two-week delay by the magistrate judge in granting an in formapauperis
motion. The court held that the date the complaint was
received in the district court, rather than the date it was
filed, would determine whether it was barred by the statute of
limitations. The court reasoned that some administrative delay
was inevitable whenever an in forma pauperis motion accompanied a
complaint, but could not fairly be attributed to the in formapauperis
plaintiff. Id. at 71. See also Jones v. Waters, 563 F.
Supp. 817, 818 (E.D. Pa. 1983) (tolling two-year limitations
period governed by 42 Pa. Cons. Stat. Ann.   5524 in   1983
action during pendency of in forma pauperis motion).
                                C.
         The tolling of the limitations period during the
pendency of an in forma pauperis motion is particularly common in
Title VII cases. In Ynclan v. Department of Air Force, 943 F.2d
1388, 1391 (5th Cir. 1991), for example, the complaint was
submitted prior to the expiration of the limitations period but
was not actually filed until after the limitations period had
expired. The court held that the limitations period was tolled
during the pendency of the plaintiff's in forma pauperis and
counsel motions. Another case supporting this view is Paulk v.
Department of Air Force, 830 F.2d 79 (7th Cir. 1987), where a prose
plaintiff submitted a complaint naming the Department of the
Air Force as the defendant and an in forma pauperis motion within
the limitations period. Id. at 80 n.1. After the limitations
period expired, the in forma pauperis motion was granted and the
complaint was served on the U.S. Attorney. After a motion to
dismiss was filed, the plaintiff attempted to amend her complaint
to name the correct party. However, the district court rejected
the amendment and dismissed the suit because the plaintiff had
named the wrong federal government defendant and failed to give
actual notice of the suit to the correct party within the
limitations period. The Court of Appeals for the Seventh Circuit
reversed.
         The court noted that, pursuant to Rule 15(c), service
on the U.S. Attorney within the limitations period satisfied the
rule's requirements for relation back of an amendment to change a
party after the limitations period had expired. Id. at 81.
Although the U.S. Attorney had not been served within the
limitations period, the court held that the district court should
have granted the plaintiff's request to amend her complaint. The
court's explanation in Paulk is especially apposite here:
            Because plaintiff petitioned for leave to proceed informa
pauperis, see 28 U.S.C.   1915, the United States
         Attorney was not actually served with the pro secomplaint for
more than a month after the complaint was
         filed and the statute of limitations had run. This
         delay is fully expectable due to this Circuit's rule
         that the district judge may consider whether the
         complaint is frivolous or malicious before granting
         leave to proceed in forma pauperis under   1915(a) and
         authorizing issuance of the summons and complaint
         (citations omitted). The delay in deciding to grant
         this motion could easily consume the thirty-day
         limitations period and make impracticable the filing of
         in forma pauperis petitions in such suits. Tolling the
         limitations period during the pendency of such a motion
         . . . allows 28 U.S.C.   1915 and Rule 15(c) to operate
         harmoniously, instead of denying the benefits of . . .
         Rule 15(c) to the very plaintiffs who are most likely
         to need it.

Id. at 82-83. See also Warren v. Department of Army, 867 F.2d
1156, 1161 (8th Cir. 1989) (same).
                                D.
         In sum, we hold that the 120 day period of Rule
15(c)(3) for satisfying the requirements for relation back of an
amendment that changes or adds a party is suspended once a
plaintiff submits the original in forma pauperis complaint within
the time provided by the statute of limitations, and the
1915(a) in forma pauperis determination is made. The 120 day
period remains suspended while the district judge considers the
1915(d) frivolousness question. If an amendment is necessary to
cure defects in the complaint and an appropriate one is
proffered, it must be permitted, see Roman, 904 F.2d at 195 n.4,
and upon the filing of an appropriate amendment, the district
judge must order issuance of the summons and service of the
amended complaint. Upon the entry of that order directing
service of the amended complaint, the suspension ends and the 120
day period of Rule 15(c)(3) begins to run. Cf. n.14, supra. We
agree with the Seventh Circuit in Paulk, supra, that there is a
need for 28 U.S.C.   1915 and Rule 15(c) to operate harmoniously
to avoid denying the benefits of Rule 15(c) to the very
plaintiffs who are most likely to need it. See supra at 20-21.
         Under this holding, the order of the district court
dismissing this action under 28 U.S.C.   1915(d) must be vacated
and the case remanded for further proceedings. On remand,
Urrutia should be granted leave to file his amended complaint.
If he does so and properly names the individual police officers,
the district court should direct service of the amended
complaint. If service of the amended complaint is made within
the 120 day period provided for in Rule 4(m), such period to
commence upon entry of the order directing that the amended
complaint be served, Urrutia will have satisfied the requirement
of notice, because actual service of the complaint clearly
satisfies the notice requirement.
         The additional defendants may, of course, move for
dismissal of the amended complaint as barred by the statute of
limitations if Urrutia does not show that they should have known
that, but for a mistake concerning the identity of the proper
party, the action would have been brought against them, or if
they can show that they will be prejudiced in maintaining a
defense. The prejudice must be actual, not hypothetical. See,
e.g., Bechtel v. Robinson, 886 F.2d 644, 652 (3d Cir. 1989)
(demonstrating prejudice requires party seeking dismissal of
amended complaint to show that it was unfairly denied opportunity
to present facts or evidence which it would have presented had
the amendments been timely). We will leave the determination of
these questions to the district court in the first instance.
                               IV.
         The magistrate judge suggested other possible bases for
dismissal of the complaint, namely, claim preclusion and improper
venue. In answer to a question in the form civil rights
complaint asking for a description of any lawsuits dealing with
the same facts involved in the present action, Urrutia identified
a prior suit against the Harrisburg Police Department, Denise
Thompson, and Sean McCormack. The suit was filed in the "Dauphin
County Courts," Complaint, at Part V.F.1., and was dismissed.
         Urrutia may be precluded from bringing his civil rights
claim in federal court. See Migra v. Warren City Sch. Dist. Bd.
of Educ., 465 U.S. 75, 77 n.1 (1984); Allen v. McCurry, 449 U.S.
90, 96-97 (1980) (res judicata applies to   1983 cases). "When a
prior case has been adjudicated in a state court, federal courts
are required by 28 U.S.C.   1738 to give full faith and credit to
the state judgment and, in section 1983 cases, apply the same
preclusion rules as would the courts of that state." Edmundson
v. Borough of Kennett Square, 4 F.3d 186, 189 (3d Cir. 1993)
(citations omitted). Hence, in this case, Pennsylvania law
determines if Urrutia's   1983 claim should be barred.
         Under Pennsylvania law, a final judgment on the merits
by a court of competent jurisdiction will bar any identical
future action between the parties and their privies. See, e.g.,
Hopewell Estates, Inc. v. Kent, 435 Pa. Super. 471, 476, 646 A.2d
1192, 1194 (1994). All matters which might have been raised in
the former suit as well as those that actually were raised are
res judicata in a subsequent proceeding. Id. "In determining
whether res judicata should apply, a court may consider whether
the factual allegations of both actions are the same, whether the
same evidence is necessary to prove each action and whether both
actions seek compensation for the same damages." Hopewell
Estates, 435 Pa. Super. at 477, 646 A.2d at 1194-95 (citing Mintz
v. Carlton House Partners, 407 Pa. Super. 464, 475, 595 A.2d
1240, 1246 (1991)).
         Even though Urrutia made a vague representation that
his present federal case arises from the same facts as in his
state court case (see supra p. 23), we are unable to determine if
the federal civil rights claim should have been raised in the
prior suit, or, was raised and fully litigated before and,
therefore, cannot now be relitigated. Neither could the
district court make this determination on the facts before it.
         In the usual case, if a   1915(d) dismissal based on
the doctrine of res judicata is contemplated, the district court
should have on hand the complaint and dismissal order from the
prior suit. See Logan v. Moyer, 898 F.2d 356, 357 (3d Cir.
1990). Only then can the district court have the requisite
certainty that the relevant facts and issues support a
determination of claim preclusion. In this case, in view of the
anticipated addition of individual police officers as defendants,
we think the better practice would be for the district court to
leave the defense of res judicata, see Fed. R. Civ. P. 8(c), to
the defendants to plead and develop as a basis for dismissal of
the amended complaint.
         Similarly, because there is no way of knowing at this
time where any of the proposed additional defendant police
officers reside, the defendants also should be the ones to raise
a challenge of improper venue, if such a challenge is
appropriate. At the time of filing of the complaint, Urrutia was
incarcerated at the State Correctional Institution in Somerset,
Pennsylvania. He filed this action in the judicial district in
which Somerset is located, the Western District of Pennsylvania.
The June 1993 arrest by Harrisburg police officers took place in
Harrisburg, Pennsylvania, located in the Middle District of
Pennsylvania.
         Section 1983 contains no special venue provision. SeeSinwell v.
Shapp, 536 F.2d 15, 19 (3d Cir. 1976). Therefore, the
general venue provisions of 28 U.S.C.   1391 apply. Pursuant to
  1391(b):
                 A civil action wherein jurisdiction is not
              founded solely on diversity of citizenship may,
              except as otherwise provided by law, be brought
              only in (1) a judicial district where any
              defendant resides, if all defendants reside in the
              same State, (2) a judicial district in which a
              substantial part of the events or omissions giving
              rise to the claim occurred, . . . or (3) a
              judicial district in which any defendant may be
              found, if there is no district in which the action
              may otherwise be brought.

A defense of improper venue may be waived. Fed. R. Civ. P.
12(h)(1).
         Because the arrest took place in Harrisburg, venue
would be appropriate in the Middle District. If venue is not
also appropriate in the Western District, because subparagraph
(1) cannot be satisfied, the defendants should seek recourse
pursuant to a Fed. R. Civ. P. 12(b)(3) motion prior to answering
the amended complaint. If it appears from the motion that
venue is not proper in the Western District, the district court
should transfer the action to the Middle District pursuant to 28
U.S.C.   1406(a). See also Cottman Transmissions Sys., Inc. v.
Martino, 36 F.3d 291, 296 (3d Cir. 1994).
                                V.
         The magistrate judge also concluded that defendant
McCormack was immune from suit because the decision to prosecute
is a protected function. However, the absolute immunity for
prosecutorial functions only applies in a suit for money damages.
Imbler, 424 U.S. at 431. Urrutia did not request money damages
in the complaint. On the other hand, Urrutia's request that
"justice be served" is too nebulous to constitute a request for
injunctive relief. In amending his complaint on remand Urrutia
must specify whether he is seeking money damages or injunctive
relief or both. If he is seeking injunctive relief, he should be
specific about what he is seeking. If he continues to rely
solely on his request for "justice," the district court may
dismiss the complaint. If what Urrutia seeks is a release from
custody, his complaint sounds in habeas corpus, not civil rights,
see Preiser v. Rodriguez, 411 U.S. 475, 1500 (1973), and an
assistant district attorney would not be a proper respondent, seeRule
2(a), Rules Governing   2254 Cases. And if he seeks
damages, the district court must consider the Imblerprosecutorial immunity
issue.
                               VI.
         Finally, Urrutia has alluded in his brief on appeal to
an additional claim for false imprisonment arising from the June
1993 arrest, and he has also described in detail a new claim of
excessive use of force in effecting a different arrest on July
26, 1993. Urrutia is free to add other causes of action
concerning the June 1993 arrest pursuant to an amendment to the
complaint (see also supra p. 10 n.7), but an amendment adding
claims arising from a different arrest on a different day in 1993
will not relate back and would appear to be barred by the statute
of limitations. See Fed. R. Civ. P. 15(c)(2).

         The order of the district court dismissing the
complaint will be vacated and the case remanded for further
proceedings consistent with this opinion.
