474 F.2d 991 (3rd Cir. 1973), 72-1554, Fischer v. Cahill

• Docket Nº: 72-1554.
• Citation: 474 F.2d 991
• Party Name: Joseph FISCHER, Appellant, v. Hon. William T. CAHILL, Governor of New Jersey, et al.
• Case Date: March 01, 1973
• Court: United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 991

474 F.2d 991 (3rd Cir. 1973)

Joseph FISCHER, Appellant,

v.

Hon. William T. CAHILL, Governor of New Jersey, et al.

No. 72-1554.

United States Court of Appeals, Third Circuit.

March 1, 1973

Submitted Feb. 6, 1973.

Page 992

Joseph Fischer, pro se.

George F. Kugler, Jr., Atty. Gen. of New Jersey, Trenton, N. J., Virginia L. Annich and Michael S. Bokar, Deputy Attys. Gen., for appellees.

Before BIGGS and GIBBONS, Circuit Judges, and HUYETT, District Judge.

OPINION

PER CURIAM:

Appellant, a state prisoner, filed a pro se complaint claiming violations of his civil rights. The district court permitted the filing of the complaint in forma pauperis, directed that no summons issue, and dismissed before any responsive pleadings were filed, apparently on the authority of Rule 12(b)(6), Fed.R.Civ.P. The inartistically drafted complaint asserts (1) damages arising from the use of improper medication prescribed by the New Jersey State Prison Medical Department, and (2) a violation of appellant's civil rights by the members of the New Jersey Parole Board in that they denied his parole without a statement of reasons.

With respect to the medication contention, dismissal was proper, since by a most generous reading the complaint can only be construed as a tort claim for malpractice. The only jurisdiction asserted is under the Civil Rights Act, 42 U.S.C. § 1983, and a tort claim for malpractice is not cognizable under that jurisdiction. E. g., Nettles v. Rundle, 453 F.2d 889 (3d Cir. 1971); Isenberg v. Prasse, 433 F.2d 449 (3d Cir. 1970). Moreover, with respect to the prescription of the medication no person is named as a defendant, but only the New Jersey Prison Medical Department. That state agency may not be sued under 42 U.S.C. § 1983 since it is not a person. United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84 (3d Cir. 1969), cert. denied, 396 U.S. 1046, 90 S.Ct. 696, 24 L.Ed.2d 691 (1970). ¹

Page 993

The charges against the members of the Parole Board are another matter. Affording the complaint the generous construction required by Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), it may be construed as alleging that appellant seeks declaratory relief, injunctive relief, and possibly damages, with respect to the failure of the Parole Board to give reasons for its adverse action. No jurisdictional amount is required, Lynch v. Household Finance Corp., 405 U.S....