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Gilmore v. Veshecco

December 16, 2009

WILLIE RAY GILMORE, PLAINTIFF,
v.
SUPERINTENDENT VESHECCO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Baxter

OPINION AND ORDER

United States Magistrate Judge Susan Paradise Baxter.

I. INTRODUCTION

A. Relevant Procedural and Factual History

Plaintiff Willie Ray Gilmore, a prisoner formerly detained at the Erie County Prison*fn1 ("ECP"), brings this action under the Civil Rights Act of 1871, 42 U.S.C. § 1983 against: James Veshecco, Warden at ECP ("Veshecco"); Major James Senyo, a corrections officer at ECP ("Senyo"); Eric Young, an adult individual formerly residing in Erie, Pennsylvania ("Mr. Young")*fn2 ; and Darlene Dixson Young, an adult individual believed to be the wife of Mr. Young, who currently resides in Erie, Pennsylvania ("Mrs. Young").*fn3

In his pro se complaint, which consists of a rambling collection of disjointed factual allegations and legal claims, Plaintiff appears to allege that, on or about December 22, 2008, he authorized ECP to release certain items of his property to Mr. Young, which consisted of: (i) a debit Visa card having a $614.00 credit balance; (ii) a "checkbook to [his] savings account;" (iii) an Access card for $176.00 worth of food stamps; (iv) two pairs of earrings; (v) a cellular phone and charger; (vi) a wallet; and (vii) code numbers to Plaintiff's various accounts. (Complaint at p. 5). Plaintiff alleges that his intent was to have Mr. Young use the money and property to obtain a bond for Plaintiff's release from pre-trial detention at ECP. Instead. Mr. Young allegedly stole the money and property that was released to him. Plaintiff alleges that he sought to grieve the issue at ECP, but was not given a grievance form to do so.

Plaintiff appears to be claiming that Defendants Veshecco and Senyo were negligent in failing to assist him with recovering his property and having charges filed and prosecuted against Mr. and Mrs. Young for the alleged theft. As relief for his claim, Plaintiff seeks monetary damages.

On April 15, 2009, Defendants Veshecco and Senyo filed a motion to dismiss Plaintiff's claim for failure to state a claim upon which relief may be granted. [Document # 15]. Plaintiff has since filed a brief in opposition to Defendants' motion, essentially restating the allegations of his complaint. [Document # 19]. This matter is now ripe for consideration

B. Standards of Review

1. Motion to Dismiss

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 95 (2007). A complaint must be dismissed pursuant to Rule 12 (b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)(rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)). See also Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937 (May 18, 2009) (specifically applying Twombly analysis beyond the context of the Sherman Act).

The Court need not accept inferences drawn by plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). Nor must the court accept legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 556, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 556. Although the United States Supreme Court does "not require heightened fact pleading of specifics, [the Court does require] enough facts to state a claim to relief that is plausible on its face." Id. at 570.

In other words, at the motion to dismiss stage, a plaintiff is "required to make a 'showing' rather than a blanket assertion of an entitlement to relief." Smith v. Sullivan, 2008 WL 482469, at *1 (D.Del. February 22, 2008) quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). "This does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that ...


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