The opinion of the court was delivered by: Judge Conner
Plaintiff Steven Jean-Pierre ("plaintiff"), a federal inmate formerly incarcerated at the United States Penitentiary at Canaan ("USP-Canaan"), commenced this Bivens*fn1 action on April 19, 2006. (Doc. 1.) He is presently proceeding via an amended complaint. (Doc. 20.) Therein, he alleges violations of his First and Fourteenth Amendment rights as well as state law claims.*fn2 Named as defendants are the following individuals: Cameron Lindsay, Warden; Kyle Lindsay, Unit Manager; Alison O'Neil, Case Manager; Tom Gubbiotti, Counselor; Kenneth Flores*fn3 , Press Foreman; Harrell Watts, National Inmate Appeals Administrator; D. Scott Dodrill, Regional Director; and Harley G. Lappin, Director. Presently before the court are two separate motions to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b), or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56(b). (Docs. 22, 42.) For the reasons set forth below, defendants' motions to dismiss will be granted with respect to the due process and conspiracy claims, and the motions for summary judgment will be granted as to the retaliation claims. The court will decline to exercise supplemental jurisdiction over the state law claims.
A. Allegations of the Complaint
Plaintiff alleges that on June 5, 2006, he reported to work at the UNICOR Factory, and as he "walked through the security metal detector the device went off." (Doc. 20, at 4 .) This prompted a pat search by defendant Flores. "Defendant [Flores] started to search the plaintiff from his upper body, when the defendant reach [sic] the plaintiff lower body the defendant actually took his time in slow motion and put his hand on the plaintiff [sic] butt and caressed it all the way down." (Id.) Plaintiff immediately notified defendant Flores "that he just touched the plaintiff in an inappropriate manner which the plaintiff did not approved [sic] and appreciate. . . ." (Id.) Plaintiff and defendant Flores exchanged words and plaintiff requested that a lieutenant be called to resolve the issue. (Id. at 5.) Plaintiff alleges that after approximately fifteen minutes, the lieutenant appeared. "Defendant then talked to the lieutenant without the plaintiff hearing a word that was being said between the two, then the plaintiff was being escorted out of the unicore [sic] factory by the lieutenant." (Id.) He was taken to a holding cell in the lieutenant's office. After the passage of approximately two hours, he was notified that he was being given an incident report for insolence. (Id. at 6.) Plaintiff alleges that "the only reason why the defendant wrote the insolent report was to cover-up his misconduct actions and to try to stop the plaintiff from complaining." (Id.)
The following day, plaintiff appeared before the Unit Disciplinary Committee ("UDC"), which included defendants Gubbiotti, Kyle Lindsay and O'Neil. (Id.) Plaintiff gave his version of the events and argued that the "report was just a form of retaliation by the defendant to stop the plaintiff from complaining about the assault. . . ." (Id. at 6-7.) He requested that the UDC review the video surveillance camera as evidence that he was sexually assaulted by defendant Flores. His request was denied because "the Administration only reviewed video surveillance when inmates commit crimes." (Doc. 20, at 7.) He alleges that defendant Gubbiotti stated that he would "ride with his officer; which means he would believe the defendant Flowres [sic] without reviewing the requested surveillance video. Upon information and belief and based upon defendant Gubbiotti [sic] remarks it is believed that defendant Gubbiotti refused to admit the surveillance tape as evidence to cover up his co-defendant Flowres [sic] action in a deliberate manner." (Id.) The UDC concluded that plaintiff acted in an insolent manner by using profanity while a pat search was being performed. (Id. at 7.) He was sanctioned with loss of job for 180 days. He takes the position that "all the defendants acted with delibrate [sic] malice to cover up defendant Flowres [sic] action by refusing to allowed [sic] the Unicor Factory surveillance tape as evidence on the plaintiff [sic] behalf. . . ."
Plaintiff unsuccessfully appealed the decision through all levels of review. He challenged the UDC's denial of his request to review the video surveillance tape and was informed, at each level of review, that the surveillance equipment was not available to him because it is utilized for institution security purposes only. (Id. at 12.) It is his contention that defendants Cameron Lindsay, Dodrill, Watts, and Lappin entered into an agreement with BOP staff to uphold the unlawful UDC proceedings. (Id.)
Plaintiff alleges that the denial of access to the videotape during the disciplinary proceedings and the sanction of loss of his job for 180 days deprived him of his due process rights and amounted to a conspiracy to retaliate against him for exercising his First Amendment rights and an agreement to cover-up defendant Flore's sexual battery, assault and harassment.
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept as true all factual allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). 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).
Federal notice pleading rules require the complaint to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Sershen v. Cholish, No. 3:07-CV-1011, 2007 WL 3146357, at *4 (M.D. Pa. Oct. 26, 2007) (quoting Erickson v. Pardus, ___ U.S. ___, 127 S.Ct. 2197, 2200 (2007)). The plaintiff must present facts that, if true, demonstrate a plausible right to relief. See FED. R. CIV. P. 8(a) (stating that the complaint should include "a short and plain statement of the claim showing that the pleader is entitled to relief"); Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1965 (2007) (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"); Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007). Thus, courts should not dismiss a complaint for failure to state a claim if it "contain[s] either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Montville Twp. v. Woodmont Builders LLC, No. 05-4888, 2007 WL 2261567, at *2 (3d Cir. 2007) (quoting Twombly, ___ U.S. at ___, 127 S.Ct. at 1969). Under this liberal pleading standard, courts should generally grant plaintiffs leave to amend their claims before dismissing a complaint that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).
Section 1983 of Title 42 of the United States Code offers private citizens a cause of action for violations of federal law by state officials. See 42 U.S.C. § 1983. The statute provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .
Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). Bivens actions are the federal counterpart to § 1983 claims. Egervary, 366 F.3d at 246 (citing Brown, 250 F.3d at 800). "[C]courts have generally relied upon the principles developed in the case law applying section 1983 to establish ...