The opinion of the court was delivered by: Judge Rambo
On February 9, 2007, Plaintiff Derrick Heard filed a Bivens*fn1 -styled complaint against two prison officials from the Federal Prison Camp in Lewisburg, Pennsylvania ("FPC-Lewisburg" or "USP-Lewisburg") (collectively, "Defendants").*fn2
(Doc. 1.) Heard alleges that Defendants violated his constitutional rights when they issued him an incident report and temporarily paid him at a lower pay grade in connection with a safety violation committed at his Federal Prison Industries, Inc. (also known as "UNICOR") job at FPC-Lewisburg. Before the court is Defendants' motion to dismiss the complaint or, in the alternative, for summary judgment. (Doc. 17.) For the reasons set forth below, the motion to dismiss will be granted.
The allegations in Heard's complaint relate to events occurring at FPCLewisburg while Heard was at his UNICOR work assignment as a disassembler in the Computer Recycling Operation area. (Doc. 1.) Heard contends that on or about August 30, 2006, while he was cleaning an electronic computer mouse in the recycling area, Defendant Lockcuff approached him, informing Heard that he was committing a safety violation. (Id. at 2.) According to Defendants, Heard had inserted a screwdriver into an air hose he was using to clean the mouse in order to let air out of the hose.*fn3 (Doc. 24 at 5.) The incident was written up by Heard's supervisor as a "serious safety violation," with a recommendation that Heard's pay grade be temporarily lowered, retroactive to August 1, 2006. (Doc. 1 at 2; Doc. 24 at 5.) The associate warden approved this recommendation on August 30, 2006. (Id.)
Heard was subsequently issued a UNICOR incident report,*fn4 which lowered his pay grade, retroactive to August 1, 2006. (Doc. 24 at 6.) Defendant Lockcuff approved this report on August 31, 2006. (Id.) Heard spoke with Defendant Lockcuff about the incident, reminding him that Lockcuff had failed in the past to reprimand white inmates for similar safety violations. (Doc. 1 at 2-3.) As a result, Heard now claims that the incident report and loss of pay grade he received were too severe and amounted to racial discrimination. (Id.)
On April 1, 2007, a second UNICOR report was issued, recommending that Heard's pay grade be restored effective April 1, 2007. (Id. at 7.) Defendant Lockcuff approved this recommendation on April 5, 2007, and Heard's pay grade was restored. (Id.)
Heard filed his Bivens complaint pursuant to 28 U.S.C. § 1331 with this court on February 9, 2007. (Doc. 1.) The court directed service of the complaint on March 6, 2007. (Doc. 6.) After the court granted Defendants a motion for enlargement of time, Defendants filed the instant motion to dismiss the complaint on June 13, 2007. (Doc. 17.) Heard, however, filed his brief in opposition to the motion to dismiss, (Doc. 18), prior to Defendants' filing of their brief in support of the motion to dismiss, (Doc. 22). As a result, the court issued an order on December 6, 2007, giving Heard fifteen (15) days from the date of the order to file a supplemental brief in opposition to the motion to dismiss. (See Doc. 29.) The court also informed Heard that failure to comply with the order will result in the motion to dismiss being deemed ripe for disposition. (Id.) Heard has not filed a supplemental brief, and his time for doing so has expired. As such, the motion to dismiss is ripe for disposition.
II. Legal Standard - Motion to Dismiss
Among other requirements, a sound complaint must set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This statement must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, - U.S. -, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint need not contain detailed factual allegations, but a plaintiff must provide "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action" to show entitlement to relief as prescribed by Rule 8(a)(2). Id. at 1965; accord, e.g., Evancho v. Fisher, 423 F.3d 347, 350(3d Cir. 2005). A defendant may attack a complaint by a motion under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.
In deciding a motion to dismiss under Rule 12(b)(6), the court is required to accept as true all of the factual allegations in the complaint, Erickson v. Pardus, - U.S. -, 127 S.Ct. 2197, 2200 (2007), and all reasonable inferences permitted by the factual allegations, Watson v. Abington Twp., 478 F.3d 144, 150 (3d Cir. 2007), viewing them in the light most favorable to the plaintiff, Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007). The court is not, however, "compelled to accept unsupported conclusions and unwarranted inferences or a legal conclusion couched as a factual allegation." Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (quotations and citations omitted). If the facts alleged are sufficient to "raise a right to relief above the speculative level" such that the plaintiff's claim is "plausible on its face," a complaint will survive a motion to dismiss. Bell Atlantic Corp., 127 S.Ct. at 1965, 1974; Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007). Further, although the court is generally limited in its review to the facts 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).
When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003); Youse v. Carlucci, 867 F. Supp. 317, 318 (E.D. Pa. 1994). Such a complaint "must be held to less stringent standards than formal pleadings drafted by lawyers." Estelle v. Gamble, 429 U.S. 97, 106 (1976), quoted in Erickson,127 S.Ct. at 2200.
Defendants have moved for dismissal of Heard's complaint under Federal Rule of Civil Procedure 12(b), or, in the alternative, for summary judgment, on the grounds of: (1) failure to exhaust administrative remedies; (2) failure to state a cause of action with respect to his claims of racial discrimination; (3) failure to allege any personal involvement by Defendant Williamson; and (4) failure to demonstrate physical injury in order to recover compensatory damages. Upon consideration ...