The opinion of the court was delivered by: Judge Conner
Plaintiff Frederick Banks ("Banks") initiated both of the above-captioned Bivens*fn1 styled civil rights actions pursuant to 28 U.S.C. § 1331. At the time Banks filed these complaints he was incarcerated at the United States Penitentiary at Canaan, in Waymart, Pennsylvania ("USP-Canaan"). Presently before the court is a motion to dismiss or, in the alternative, for summary judgment (1:06-cv-1228, Doc. 16) Banks' complaint docketed at 1:06-cv-1228 (1:06-cv-1228, Doc. 1-2), filed on behalf of the defendants.*fn2 Also before the court is a motion to dismiss (1:06-cv-1127, Doc. 28) Banks' complaint docketed at 1:06-cv-1127, filed on behalf of the defendants.*fn3 Also pending is Banks' motion to amend the complaint docketed at 1:06-cv-1127. (1:06-cv-1127, Doc. 35.) For the reasons set forth below, the motion for summary judgment (1:06-cv-1228, Doc. 16) will be granted in part, the motion to dismiss (1:06-cv-1127, Doc. 28) will be denied as moot, the actions will be ordered consolidated, and Banks will be granted leave to file one all-inclusive amended complaint.
In each complaint, Banks alleges that USP-Canaan officials have violated his constitutional right of access to the courts. In the complaint docketed at 1:06-cv-1228, Banks alleges that prison officials denied him access to the prison's law library, telephone, and stamps. (1:06-cv-1228, Doc. 1-2 at 1.) In the complaint docketed at 1:06-cv-1127, Banks alleges that prison officials refused to provide him with stamps after he indicated that he did not have the money to purchase stamps for his legal mailings. (1:06-cv-1127, Doc. 1 at 1.) Each complaint spans the months of April and May of 2006. As relief, Banks seeks monetary damages as well as injunctive relief.
Following service of the complaint docketed at 1:06-cv-1228, the defendants filed a motion to dismiss or, in the alternative, for summary judgment (1:06-cv-1228, Doc. 16), arguing, in part, that defendant Lindsay, the warden at USP-Canaan, should be dismissed because the doctrine of respondeat superior cannot form the basis of a Bivens claim.
Following service of the complaint docketed at 1:06-cv-1127, the defendants filed a motion to dismiss*fn4 (1:06-cv-1127, Doc. 28), arguing, in part, that not only should the BOP be dismissed because it is not a proper party in a Bivens action, but also the director of the BOP should be dismissed on the basis that respondeat superior cannot form the basis of a Bivens claim.
A. Motion for Summary Judgment
"Summary judgment serves as a minimal but important hurdle for litigants to overcome before presenting a claim to a jury." Pappas v. City of Lebanon, 331 F. Supp 2d 311, 315 (M.D. Pa. 2004). Faced with such a motion, the adverse party must produce affirmative evidence, beyond the disputed allegations of the pleadings, in support of the claim. FED. R. CIV. P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Corneal v. Jackson Twp., 313 F. Supp 2d 457, 464 (M.D. Pa. 2003). "Such affirmative evidence - regardless of whether it is direct or circumstantial -must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance." Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001) (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989). Only if this burden is met can the cause of action proceed. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986); see FED. R. CIV. P. 56(c), (e).
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a claim that fails to assert a basis upon which relief can be granted. FED. R. CIV. P. 12(b)(6). In the context of a motion to dismiss under Rule 12(b)(6), the court must accept as true all of the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom. Langford v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000) (citing Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)). Although the court is generally limited in its review to the facts alleged in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (stating that, although a district court ruling on a motion to dismiss may not generally consider matters extraneous to the pleadings, a "document integral to or explicitly relied upon in the complaint" may be considered "without converting the motion [to dismiss] into one for summary judgment") (quoting Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1224 (1st Cir. 1996)).
The court will not dismiss a complaint for failure to state a claim unless it appears beyond a doubt that "no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). "The complaint will be deemed to have alleged sufficient facts if it adequately put the defendants on notice of the essential elements of the plaintiff's cause of action." Langford, 235 F.3d at 847. The court must grant leave to amend before dismissing a complaint that is merely deficient. See Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).