The opinion of the court was delivered by: Judge McClure
On January 4, 2006, plaintiff Joseph Thorn, proceeding pro se, commenced the instant Bivens action in the United States District Court for the Middle District of Pennsylvania. As part of his complaint, Thorn asserts that the crowded housing conditions at the Federal Prison Camp in Lewisburg, and the camp's planned expansion to house more inmates, amount to cruel and unusual punishment under the Eighth Amendment of the United States Constitution. The complaint and motion for a temporary restraining order (TRO) and preliminary injunction filed on January 4, 2006, were largely identical to documents he filed in an action he commenced in 2005, an action which was ultimately dismissed by this court for his failure to exhaust administrative remedies. Thorn v. Smith, No. 4:05-CV-0166 (M.D. Pa. July 29, 2005) (McClure, J.).
On February 14, 2006, we granted plaintiff leave to file an amended complaint with new defendants. On March 6, 2006, we timely received plaintiff's amended complaint and supporting memorandum of law. The amended complaint added defendants Troy Williamson, Dave Moffat, D. Scott Dodrill, and Harley G. Lappin. Thorn's amended complaint, largely identical to his previously filed complaints, sought a temporary restraining order and a preliminary injunction.
On March 7, 2006, we denied Thorn's request for a TRO, dismissed the portion of his complaint referencing criminal prosecution, and ordered service of the amended complaint on the new defendants. On May 23, 2006, we denied plaintiff's request for a preliminary injunction. On May 12, 2006, the government filed a motion to dismiss or, in the alternative, for summary judgment. By order dated June 13, 2006 we provided Thorn an extension of time to file his brief in opposition to the defendants' dispositive motion. On August 14, 2006, Thorn filed his brief in opposition captioned "Plaintiff's Response to the Defendant's Brief in Support of the Motion to Dismiss, or in the Alternative for Summary Judgment."
(Rec. Doc. No. 46.) For the following reasons we will grant the defendants' motion to dismiss.
A. Judgment on the Pleadings and Failure to Exhaust
The defendants have filed a motion to dismiss or in the alternative a motion for summary judgment. For the following reasons we will construe the motion, which relies on an exhaustion defense, as a motion for judgment on the pleadings. In Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004), the United States Court of Appeals for the Third Circuit held that when a prisoner fails to exhaust under the PLRA the action should be dismissed without prejudice, and a defendant's motion to dismiss should be treated as a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) because failure to exhaust administrative remedies is an affirmative defense under 42 U.S.C. § 1997e(a). Id. at 223 n.2.
Federal Rule of Civil Procedure 12(c) governs motions for judgment on the pleadings. That rule indicates that when "matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." Fed. R. Civ. P. 12(c). Defendants have attached to their motion a series of exhibits that the court has considered. The United States Court of Appeals for the Third Circuit held in Spruill that a court may consider "indisputably authentic documents . . . without converting it to a motion for summary judgment." Spruill, 372 F.3d at 223.
B. Motion to Dismiss Standard in Evaluating Judgment on Pleadings
The standard in evaluating a motion for judgment on the pleadings is not materially different from the standard for a motion to dismiss. Id. at 223 n.2. When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must view all allegations stated in the complaint as true and construe all inferences in the light most favorable to plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In ruling on a motion to dismiss the court primarily considers the allegations of the pleading, but is not required to consider legal conclusions alleged in the complaint. Kost, 1 F.3d at 183. At the motion to dismiss stage, the court considers whether plaintiff is entitled to offer evidence to support the allegations in the complaint. Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000). A complaint should be dismissed only if the court, from evaluating the allegations in the complaint, is certain that under any set of facts relief cannot be granted. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997); Markowitz v. Northeast Land, Co., 906 F.2d 100, 103 (3d Cir. 1994).
The failure-to-state-a-claim standard of Rule 12(b)(6) "streamlines litigation by dispensing with needless discovery and factfinding." Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). A court may dismiss a claim under Rule 12(b)(6) where there is a "dispositive issue of law." Id. at 326. If it is beyond a doubt that the non-moving party can prove no set of facts in support of its allegations, then a claim must be dismissed "without ...