The opinion of the court was delivered by: Judge McClure
This pro se civil rights action under 28 U.S.C. §1331 was initiated by forty-six inmates on September 7, 2007. The action concerns their confinement at the Canaan United States Penitentiary ("USP Canaan") in Waymart, Pennsylvania. Presently before the Court is defendants' Motion to Dismiss or for Summary Judgment.
In their complaint, plaintiffs describe themselves as Sunni Muslims whose First Amendment right to exercise their religious beliefs was violated by defendants. (See Rec. Doc. No. 1).
The claims of eleven of the plaintiffs were dismissed on May 7, 2008, for failure to comply with the Administrative Order issued by this Court directing them to submit the required in forma pauperis applications and authorization forms. (See Rec. Doc. No. 153). The May 7, 2008 Order also directed service of the complaint.
Thirty-five plaintiffs remain. The defendants, on August 11, 2008, filed a Motion to Dismiss and for Summary Judgment. (Rec. Doc. No. 169). Plaintiffs filed their own motion for summary judgment on August 21, 2008, and a motion opposing defendants' motion to dismiss and for summary judgment on August 28, 2008 (See Doc. Nos. 164 and 165). On September 2, 2008, defendants filed a brief in support of their motion to dismiss and for summary judgment, as well as a statement of material facts pursuant to Local Rule 56.1. (Rec. Doc. Nos. 170 and 171). This Court, by order dated March 19, 2009, granted plaintiffs' motion requesting an extension of time in order to file a supplement to their already-filed opposition brief and a statement of material facts in response to defendants' statement. (See Rec. Doc. No. 178). Plaintiffs have yet to file either a supplement to their opposition brief or a statement of material facts.
Taken in a light most favorable to the non-moving party, the plaintiffs, the salient facts are as follows.*fn1 Before an inmate may bring an action before the federal courts, he or she must fully exhaust the Bureau of Prisons' ("BOP") administrative remedy process. (See Rec. Doc. No. 171 at 1). In order, then, for an inmate to seek a formal review of an issue regarding the circumstances of his or her incarceration, the inmate must first raise a complaint with his or her "unit team." (Rec. Doc. No. 171 at 2). If this informal attempt at resolution of the complaint is insufficient, the inmate may appeal to the prison's warden. Id. Should the warden's resolution of the issue also fail to be satisfactory to the inmate, he or she may then appeal the decision to the Regional Director and the BOP's Central Office. Id. Only after the inmate's appeal to the Central Office of the BOP is denied will the inmate's remedies be exhausted, allowing for the inmate to then file a complaint in federal court. Id.
Plaintiffs do not dispute that, of the six inmates still currently incarcerated at USP Canaan, none has exhausted his appeals under the administrative remedy process. Id. at 3. Plaintiffs Whitefield, Moreno, and Priester have failed to file any grievances as part of the administrative remedy process. Id. While plaintiffs Cooper, Deloir, and Campbell have filed seventeen, three, and ten administrative remedies respectively, none of these administrative remedies concerns the issues that are raised in this complaint. Id. Of the remaining twenty-nine defendants, twenty-five have been transferred to other facilities and four have been released. (See Rec. Doc. No. 170 at 10).
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). "The tenet that a court must accept as true all of the [factual] allegations contained in the complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal citations omitted). 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. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949. 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). "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950. In considering a Rule 12(b)(6) motion, we must be mindful that federal courts require notice pleading, as opposed to the 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,'" Twombly, 127 S.Ct. at 1964 (citing Conley v. Gibson, 355 U.S. 41, 47 (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, ...