The opinion of the court was delivered by: Judge McClure
On June 23, 2006, petitioner Darren Keys, an inmate at FCI Williamsburg proceeding pro se, filed a petition for writ of mandamus. Respondent is the Department of Justice ("DOJ"). The petition was filed in the Eastern District of Pennsylvania as Civ. No. 06-2837.
On December 22, 2006, the DOJ filed a Motion to Dismiss, which was granted by the Honorable Robert F. Kelly on January 16, 2007. Judge Kelly granted the Motion to Dismiss because venue was improper in the Eastern District. On February 5, 2007 petitioner moved for a motion for reconsideration or in the alternative to transfer the action to the district where venue is proper, which was denied by Judge Kelly on February 13, 2007. On March 27, 2007, Keys filed a second motion for reconsideration, asserting he has domicile in Philadelphia. That motion was denied without opinion by Judge Kelly on November 19, 2007.
On November 6, 2008, the Third Circuit vacated all three orders of the District Court and remanded for further proceedings. The Third Circuit directed the Eastern District to transfer the case to the Middle District, which, in turn, was directed to consider the non-venue arguments raised in the DOJ's December 22, 2006 Motion to Dismiss.
The case was transferred to this court in the Middle District of Pennsylvania on November 10, 2008, and the docket number was changed to Civ. No. 08-2239.
Now, on reevaluation, we will grant respondent's Motion to Dismiss. As a result, Keys three outstanding motions (Rec. Doc. Nos. 38, 44, and 43) and the DOJ's Motion for a Protective Order (Re. Doc. No. 47) will be denied as moot.
I. Motion to Dismiss Standard
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 & Spaulding, 467 U.S. 69, 73 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In ruling on such a motion, 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 only be dismissed if, accepting as true all of the allegations in the complaint, plaintiff has not pled enough facts to state a claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1960 (2007).
In considering a Rule 12(b)(6) motion, we must be mindful that federal courts require notice pleading, as opposed to a heightened standard of fact pleading. Hellmann v. Kercher, 2008 U.S. Dist. LEXIS 54882, 4 (W.D. Pa. 2008). Federal Rule of Civil Procedure 8 "'requires only a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the.claim is and the grounds on which it rests,'" Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964, (2007) (citing Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, (1957)). However, even under this lower notice pleading standard, a plaintiff must do more than recite the elements of a cause of action, and then make a blanket assertion of an entitlement to relief under it. Hellmann, 2008 U.S. Dist. LEXIS at 4-5. Instead, a plaintiff must make a factual showing of his entitlement to relief by alleging sufficient facts that, when taken as true, suggest the required elements of a particular legal theory. Twombly, 127 S.Ct. at 1965.
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 regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one." Id. at 327
II. Allegations in the Petition
Accepting as true all of the allegations in the petition, the facts are as follows. On June 23, 2006, petitioner Darren Keys filed a petition for writ of mandamus pursuant to 28 U.S.C. § 1361, requesting an order directing the DOJ to afford him due process. According to his petition, on May 29, 2006 Keys climbed into a ceiling vent to fix the circulation. While he was in the vent, staff conducted a head count and reported Keys as missing. On recount, Keys alleged he banged on the pipes to alert officers that he was stuck in the crawl space, but officers ignored Keys' cries for help, and chose to report Keys as missing. Keys alleges that prison staff acted in ...