The opinion of the court was delivered by: Christopher C. Conner United States District Judge
Plaintiff Steven Jean-Pierre ("Jean-Pierre"), a federal inmate formerly incarcerated at the United States Penitentiary at Canaan ("USP Canaan"), Waymart, Pennsylvania, commenced this Bivens*fn1 action on May 21, 2008. (Doc. 1.) Presently pending is a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b) and a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, filed on behalf of all named defendants, employees of the Federal Bureau of Prison ("BOP"). (Doc. 14.) For the reasons set forth below, the motions will be granted.
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 and pleading rules require the complaint to provide "the defendant notice of what the . . . claim is and the grounds upon which it rests." Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (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"); Twombly, 550 U.S. at 555 (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 contains "enough factual matter (taken as true) to suggest the required element. This does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556). 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).
B. Allegations of the Complaint
On June 3, 2007, Jean-Pierre approached kitchen staff worker Phile and complained that the food portion on his lunch tray was too small. (Doc. 1, at 3, ¶ 15.) Defendant Branning, who was in the vicinity, replied that the portion was adequate. Jean-Pierre requested that Branning "prove" that the amount was adequate. (Doc. 1, at 4, ¶ 15.) Defendant Branning returned with a measuring cup and determined that the amount was more than adequate. (Id.) Jean-Pierre replied that it was not an accurate measurement because the cup measured liquids, not solids. Branning replied "in an arrogant way 'a cup is a cup don't matter what.'" (Id.) Jean-Pierre looked to Phile, who informed him that he was not responsible for putting the food on the tray. (Id.) He alleges that he took the tray from the counter and while walking away stated "its [sic] okay, he will filed [sic] a bp-8, bp-9, bp-10 to try to have the food problem solved. Then plaintiff walked to a table where he sat and had lunch." (Id.)
Two hours later, he was called to the lieutenant's office and was given a misconduct for being insolent to defendant Branning. (Doc. 1, at 4, ¶ 16.) He informed the lieutenant that the report was written in retaliation for him stating that he would be filing a grievance to resolve a food problem and that most of his conversation was with Phile, not Branning, and at no time was he insolent to either officer. (Doc. 1, at 5, ¶ 16.) He also questioned why, given the seriousness of the offense, he was not immediately charged and taken to the Special Housing Unit ("SHU"). (Id.) The lieutenant replied that the offense was "indeed serious and such a serious offense would call for immediate detention in SHU. (Doc. 1, at 5, ¶ 17.) The lieutenant also allegedly stated "that he didn't know why officer Branning took two hours to report the so called incident." (Id.) Jean-Pierre was then escorted to the SHU.
On June 5, 2007, he appeared before Unit Disciplinary Committee ("UDC") members Moore and Jordan. (Doc. 1, at 5, ¶ 19.) At that time, he informed the UDC that he was not insolent and that he was written up in retaliation for stating that he would be filing a grievance regarding the food problem. (Id. at ¶ 20) He requested witnesses and asked the UDC to review the mess hall surveillance video tape. (Id. at 21.) No witnesses were spoken to and the video tape was not reviewed. Based on the statement of the reporting officer, the UDC found that Jean-Pierre committed the prohibited act and sanctioned him to the loss of thirty days of phone and commissary privileges. (Id. at ¶ 22.)
He appealed to defendant Holt seeking expungement of the incident. He also requested that Holt investigate by calling witnesses and reviewing the video surveillance tape. (Doc. 1, at 6, ¶ 25.) In denying the appeal, "defendant Holt completely ignored the fact that plaintiff specifically requested that Holt reinvestigated [sic] the matter by calling (witnesses) which the plaintiff named in the appeal and by reviewing the video tape himself." (Doc. 1, at 6,¶ 27.)
Jean-Pierre's appeal to the next level of review resulted in defendant Dodrill remanding the matter to the UDC because the section citing the evidence that supported the finding of guilt was incomplete. (Doc. 1, at 7, ¶ 29.) The UDC reissued their decision, again finding him guilty of the prohibited conduct.
He unsuccessfully pursued all appellate avenues of relief. According to Jean-Pierre, defendant Watts issued the following decision at the final level of review:
Our review of your disciplinary proceedings indicates substantial compliance with program statement 5270.07, Inmate Discipline and Special Housing Unit. The UDC's decision was based upon the greater weight of the evidence. We find it reasonable for the UDC to have made this determination. Records indicate you appeared before the UDC, were advised of your rights, and made a statement. Although you dispute the charge, the evidence is sufficient to support the finding. You state video evidence was not considered by the UDC. There is no indication in the record of a request by you that video evidence be considered. The UDC considered your statement, but determined the eyewitness statement of reporting officer supported the conclusion that you committed [sic] the prohibited act. You also contend witnesses were not interviewed. There are no witnesses at UDC hearings. You did not name any witnesses during the investigation into the incident report. Delivery of the UDC decision, even if delayed, has no bearing on the validity of that decision. There is no evidence the incident report was motivated by retaliation. The decision of the UDC is appropriate and consistent with program statement 5270.07, Inmate Discipline and Special Housing Units. The sanction[s] imposed were commensurate to the severity category of the prohibited act commited [sic].
Your appeal is denied. (Doc. 1, at 8-9, ¶ 33.)
In the matter sub judice, Jean-Pierre alleges that defendant Branning filed a false incident report in retaliation for exercise of his constitutional rights. (Doc. 1, at 12, ¶¶ 2, 3.) Additionally, Jean-Pierre contends that he was the victim of unconstitutional retaliation, for which each of the defendants is responsible. (Doc. 1, at 10, ¶ 35.) Further, he contends that UDC Committee members defendants Moore and Jordan, and defendants Holt, Dodrill, and Watts, the individuals who reviewed the UDC's actions, violated his Fifth Amendment due process rights and "retaliated against [him] for his protected right." (Doc. 1, at 9, ¶¶ 12-14.) Finally, he alleges that defendant Lappin, the Director of the BOP, violated his due process rights when he "overlooked the fact that all the above names violated plaintiff's due process right to the Fifth Amendment . . . " and joined in the retaliation. (Doc. 1, at 14, ¶ 15.)
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 v. Young, 366 F.3d 238, 246 (3d Cir. 2004) (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 the outer perimeters ...