The opinion of the court was delivered by: MALACHY MANNION, Magistrate Judge
Pending before the court are the defendants' motion to dismiss
the plaintiff's complaint, (Doc. No. 18), and two (2) motions for
injunctive relief filed by the plaintiff, (Doc. Nos. 2 & 14).
The plaintiff, Adam Odenwalt, filed the instant action pursuant
to 42 U.S.C. § 1983 on behalf of himself and his two (2) minor
children. The plaintiff alleges that the defendants have violated
his Eighth and Fourteenth Amendment rights in denying him contact
visits with his minor children. The defendants have moved to
dismiss the plaintiff's complaint pursuant to Fed.R.Civ.P.
The complaint alleges that the plaintiff was committed to the
State Correctional Institution, Camp Hill, ("SCI-Camp Hill"),
Pennsylvania, on January 10, 2002, after having been convicted on charges of
involuntary deviate sexual intercourse*fn1 and sentenced to
five (5) to ten (10) years of incarceration. The plaintiff notes
that he has not been classified as a sexually violent predator
under "Megan's Law."*fn2
The plaintiff alleges that from January 10, 2002, through March
24, 2002, he was allowed three (3) contact visits with his minor
children at SCI-Camp Hill. Subsequently, however, on March 25,
2002, his contact visits were terminated due to Department of
Corrections Policy DC-ADM 812-2, which states, in pertinent part,
"Any inmate who, as an adult or as a young adult offender, was
ever convicted or adjudicated for physical or sexual offense
against a minor is prohibited from having a physical contact
visit with any minor child . . ." As a result, from April 2,
2002, through May 2, 2002, the plaintiff alleges that he was
forced to have non-contact visits with his children. On May 3, 2002, the plaintiff was transferred to SCI-Coal
Township, where he remained until November 30, 2002. During that
time, the plaintiff alleges that he was allowed to have four (4)
contact visits with his children. After this time, the plaintiff
alleges that his contact visits were terminated and he was again
only permitted non-contact visits with his children.
According to the plaintiff, he has enrolled in and completed
Phase I of the Sex Offender Program, as well as the Parenting
Skills Program. Subsequent to the completion of these programs,
the plaintiff alleges that various individuals, including a
family therapist and a Department of Corrections Psychiatrist,
recommended that he be allowed contact visits with his children.
(Doc. No. 1, Ex. A). Despite these recommendations, the plaintiff
alleges that defendant Gillis continued to deny him contact
After unsuccessfully grieving the issue, the plaintiff alleges
that he hired an attorney to assist him in securing contact
visits with his children. On July 28, 2003, a hearing was held in
the Court of Common Pleas of York County, Pennsylvania, after
which an order was entered granting him contact visits with his
children "as they may be arranged."*fn3 (Doc. No. 1, Ex. B).
Despite the court's order, as of September 5, 2003, the plaintiff alleges
that the defendants continue to deny him contact visits with his
children. As a result, on October 27, 2003, the plaintiff filed
the instant action in which he alleges violations of his Eighth
and Fourteenth Amendment rights.
II. Motion to Dismiss Standard
Defendants' motion to dismiss is brought pursuant to provisions
of Fed.R.Civ.P. 12(b)(6). This rule provides for the dismissal of
a complaint, in whole or in part, if the parties fail to state a
claim upon which relief can granted. Dismissal should only occur
where it appears that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief. Conley
v. Gibson, 355 U.S. 41, 45-46 (1957). Accordingly, dismissal is
appropriate "only if, after accepting as true all of the facts
alleged in the complaint, and drawing all reasonable inferences
in the plaintiff's favor, no relief could be granted under any
set of facts consistent with the allegations of the complaint." Trump Hotel and Casino Resorts, Inc. v.
Mirage Resorts, Inc., 140 F.3d 478, 483 (3d Cir. 1998) (citing
ALA, Inc. v. CCair, Inc., 29 F.3d 855, 859 (3d Cir. 1994)).
In deciding a motion to dismiss, a court should generally
consider only the allegations contained in the complaint, the
exhibits attached to the complaint, matters of public record, and
"undisputably authentic" documents which plaintiff has identified
as the basis of his claim. See Pension Benefit Guarantee Corp.
v. White Consolidated Industries, Inc., 998 F.2d 1192, 1196 (3d
Cir. 1993). It must also be remembered that when considering a
motion to dismiss under Rule 12(b)(6), the important inquiry is
not whether the plaintiff will ultimately prevail on the merits
of his claim, but only whether he is entitled to offer evidence
in support of them. Scheuer v. Rhodes, 416 U.S. 233, 236
As a preliminary matter, the plaintiff has named as a defendant
the Pennsylvania Department of Corrections. To this extent,
federal courts can not consider suits by private parties against
states and their agencies unless the state has consented to the
filing of such a suit. Atascadero State Hospital v. Scanlon,
473 U.S. 234, 241 (1985); Edelman v. Jordan, 415 U.S. 651, 662
(1974). This immunity extends to suits asserting civil rights
violations where the state is named as a defendant. Laskaris v.
Thornburgh, 661 F.2d 23, 26 (3d Cir. 1981). "Under the Eleventh Amendment, a plaintiff other
than the United States or a state may not sue a state in federal
court without the latter state's consent unless Congress
abrogates the state's Eleventh Amendment immunity pursuant to a
constitutional provision granting Congress that power."
Chittister v. Dep't. of Community & Economic Dev.,
226 F.3d 223, 226 (3d Cir. 2000). The Commonwealth of Pennsylvania has not
waived its rights under the Eleventh Amendment. "By statute
Pennsylvania has specifically withheld consent [to be sued]."
Laskaris, 661 F.2d at 25 (citing Pa. Cons.Stat. Ann. §§
8521(b)). Additionally, § 1983 does not abrogate the Eleventh
Amendment. Quern v. Jordan, 440 U.S. 332, 345 (1979). Further,
an essential element of any claim under § 1983 is that the
alleged wrongdoing was committed by a "person." 42 U.S.C. § 1983.
"[N]either a State nor its officials acting in their official
capacities are `persons' under § 1983." Will v. Michigan Dep't.
of State Police, 491 U.S. 58, 71 (1989). Therefore, the instant
action will be dismissed with respect to the Pennsylvania
Department of Corrections.
With respect to the merits of the claims against defendant
Gillis, at the outset, the court notes that the interests
asserted by the plaintiff in the instant action are important
ones. The United States Supreme Court has held that "parents have
a liberty interest, protected by the Constitution, in having a
reasonable opportunity to develop close relations with their
children." Hodgson v. Minnesota, 497 U.S. 417, 483 (1990). Nevertheless, it has long been held that while "[p]rison walls
do not form a barrier separating prison inmates from the
protections of the Constitution," prison restrictions that
implicate prisoners' constitutional rights may be upheld if they
are "reasonably related to legitimate penological interests."
Turner v. Safley, 482 U.S. 78, 84, 89 (1987). Noting that
`courts are ill equipped to ...