The opinion of the court was delivered by: Yvette Kane, Chief Judge Middle District of Pennsylvania
Alfonzo A. Roscoe, an inmate confined at the Federal Correctional Institution at Schuylkill, Pennsylvania, filed this civil rights action on August 16, 2007. On the complaint form, he indicates that he is filing the matter as a combined Bivens*fn1 action pursuant to 28 U.S.C. § 1331, and complaint pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346. Before the Court is Defendants' motion to dismiss or, in the alternative, motion for summary judgment (Doc. No. 23). For the reasons that follow, the motion will be granted, and Plaintiff afforded the opportunity to file an amended complaint in this action.
Plaintiff brings this action against the following employees at the Federal Correctional Institution at Allenwood ("FCI-Allenwood"), his former place of confinement: Correctional Officer Dodson*fn2 , retired Senior Officer Specialist; Troy Williamson and Karen Hogsten, former Wardens; J. Esparaza and Bobby Meeks, former Associate Wardens; J. Lyons, Special Investigative Supervisor ("SIS") Lieutenant; B. Feltman, former SIS Lieutenant; Tim Burns, former Captain; and Lieutenants Hepner and Clarkson. In the complaint, Plaintiff states that on August 15, 2005, he was subjected to excessive force when Defendant Dodson began to shove, snatch and pull him through three doors, and thereafter threatened his life. (Doc. No. 1, Compl. at 5.) Plaintiff alleges that he was thereafter placed in the Special Housing Unit pending an investigation, and confined there until December 22, 2005. He contends that Defendants repeatedly ignored his requests for information as to why he being held in the SHU and claims they failed to provide him with required review hearings. He claims that despite Defendant Dodson's removal from the prison premises, Defendants continued to confine him in the SHU without explanation. He alleges that his placement in the SHU was in retaliation for reporting the excessive force incident, and claims that his efforts to exhaust his claims regarding the assault and SHU placement were hindered by Defendants.
As relief, Plaintiff seeks damages for headaches, back pain, vertigo and other stress-related "physical maladies" he suffered as a result of the foregoing. He also seeks damages for the pain and emotional trauma which resulted in anxiety, the loss of sleep and apprehension.
Pending is a motion to dismiss or, in the alternative, for summary judgment filed by Defendants.*fn3 (Doc. No. 23.) Defendants seek to dismiss the complaint because the Plaintiff's claims of assault and improper SHU placement are barred by the doctrine of claim/issue preclusion. They further seek dismissal of the FTCA claim as barred by the applicable statute of limitations. In the alternative, Defendants request the grant of summary judgment because Plaintiff failed to exhaust his administrative remedies and/or has procedurally defaulted his Bivens claims.
A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the claims alleged in the complaint. In reviewing a motion to dismiss, the court must "accept all factual allegations as true, construe the complaint in the light most favorable to plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)(quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir. 2002). The court is generally limited in its review to the face of the complaint, attached exhibits, and matters of public record in deciding motions to dismiss. In addition, factual allegations within documents described or identified in the complaint may be considered if the plaintiff's claims are based upon those documents. Pension Benefit Guar. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). A district court may consider these documents as well as indisputably authentic documents, without converting a motion to dismiss into a motion for summary judgment. Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004).
Although the moving party bears the burden of showing that no claim has been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2007), the plaintiff has an obligation to allege facts sufficient to "raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007) (internal citations omitted). Furthermore, "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, Id. at 1960. When evaluating a motion to dismiss, a court need not "credit a complaint's 'bald assertions' or 'legal conclusions.'" Evancho v. Fisher, 423 F.3d 347, 354-55 (3d Cir. 2005). Finally, when a plaintiff fails to plead "enough facts to state a claim to relief that is plausible on its face," Twombly, 127 S.Ct. at 1960, the complaint should be dismissed. A district court should provide leave to amend "when amendment could cure the deficiency and would not be inequitable." Grayson v. Mayview State Hospital, 293 F.3d 103, 106 (3d Cir. 2002).
Defendants move for the dismissal of the assault and improper SHU placement claims pursuant to the doctrine of claim/issue preclusion. Specifically, they contend that Plaintiff has previously raised these identical matters before this Court against most of the Defendants named in the instant action. (Doc. No. 24, Attach. 1, Roscoe v. Dobson, et al., Civil No. 1:CV-05-2547, 2007 WL 328605 (M.D. Pa., Jan. 31, 2007).) In the earlier action, this Court granted Defendants' motion for summary judgment after finding that Plaintiff had failed to exhaust his administrative remedies, and that his procedural default was not excusable. (Id., Attach. 1 at 3.) An appeal filed by Plaintiff with the United States Third Circuit Court of Appeals was dismissed on September 25, 2007. (See Roscoe v. Dobson, 248 Fed. Appx. 440 (3d Cir. 2007).)
It is unnecessary to delve into a lengthy discussion with regard to Defendants' claim/issue preclusion argument for the following reasons. After reviewing Plaintiff's brief in opposition to Defendants' motion, it is abundantly clear that he desires the instant action to proceed only under the FTCA. While he indicates in his complaint that he also brings this action under Bivens, and clearly appears to set forth claims pursuant thereto, he clearly abandons the Bivens claims and repeatedly expresses his desire to pursue this action only under the FTCA. In his brief Plaintiff states ...