The opinion of the court was delivered by: William W. Caldwell United States District Judge
The pro se plaintiff, Willie Merrell, an inmate at SCI-Huntingdon, filed this civil-rights action alleging an Eighth Amendment claim for the lack of heat in his cell, a due process claim for denial of parole, and a First Amendment claim to allow his attendance at chapel services. He also alleged three retaliation claims. He named the following defendants: R.M. Lawler, Huntingdon's superintendent; Mr. J. Keller, Plaintiff's unit manager who then became a program manager at Huntingdon; Mr. A. Lovett, a counselor at Huntingdon; Jill J. Spyker, a psychological services specialist at Huntingdon; Connie Green, the grievance coordinator at Huntingdon; Lawrence F. Murray, an agent for the Pennsylvania Board of Probation and Parole; Dorina Varner, the chief grievance officer for the Pennsylvania Department of Corrections (DOC); and Jeffrey A. Beard, the secretary of the DOC.
We are currently considering the defendants' motion to dismiss the amended complaint.
We granted Plaintiff leave to proceed in forma pauperis and examined his original complaint for legal sufficiency under 28 U.S.C. § 1915(e)(2)(B). Upon an initial screening, see Merrell v. Lawler, 2009 WL 1810978 (M.D. Pa. June 24, 2009), we dismissed without leave to amend the claim against Green, any claim based solely upon supervisory liability, and any damages claim for conduct of family members toward an inheritance. We also dismissed the three retaliation claims and the claim against defendant Varner but allowed Plaintiff an opportunity to amend these claims. We did permit the denial-of-parole claim, the Eighth Amendment claim, and the First Amendment free-exercise claim to proceed on this initial screening.
In response to our order, on July 2, 2009, Plaintiff filed an amended complaint, noting that we had ordered the "clarif[ication] of certain" claims from the original complaint, (doc. 10, first page), and then going on to amend those claims. We ordered service of the original and amended complaints. Under Fed. R. Civ. P. 12(b)(6), the defendants moved to dismiss. On October 19, 2009, Plaintiff moved to file another amended complaint, seeking to add a retaliation claim against new defendants for events occurring after the events alleged in the original and amended complaints.*fn1
Fed. R. Civ. P. 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." Under Rule 12(b)(6), we must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). While a complaint need only contain "a short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d. 929 (2007), a complaint has to plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955 at 1974. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, U.S.,, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)(quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965). "[L]abels and conclusions" are not enough, Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65, and a court "'is not bound to accept as true a legal conclusion couched as a factual allegation.'" Id., 127 S.Ct. at 1965 (quoted case omitted).
The requirement of making factual allegations extends to averments of conspiracy. See Capogrosso v. The Supreme Court of New Jersey, 588 F.3d 180, 184 (3d Cir. 2009)(per curiam). See also Adams v. Teamsters Local 115, 214 Fed. Appx. 167, 175 (3d Cir. 2007)(nonprecedential)(a conspiracy claim cannot proceed merely upon the conclusory averment that a conspiracy took place but rather requires factual averments that would support the inference that the defendants engaged in concerted or joint action). "'This requirement is established where the complaint sets forth a valid legal theory and it adequately states the conduct, time, place, and persons responsible.'" Id. (quoting Lynn v. Christner, 184 Fed. Appx. 180, 185 (3d Cir. 2006)(per curiam)(nonprecedential)); Kost v. Dep't of Public Welfare, No. 07-2404, 2009 WL 466166, at *4 (E.D. Pa. Feb. 24, 2009).
In resolving the motion to dismiss, we thus "conduct a two-part analysis." Fowler, supra, 578 F.3d at 210. First, we separate the factual elements from the legal elements and disregard the legal conclusions. Id. at 210-11. Second, we "determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "'plausible claim for relief.'" Id. at 211 (quoted case omitted).
This background is taken from the original and amended complaints.
Plaintiff makes the following claims.*fn2
A. Eighth Amendment Claim for Lack of Heat in Plaintiff's Cell
Plaintiff alleges an Eighth Amendment claim based on the lack of heat in his cell, ultimately resulting in a back injury. He avers that while he was an inmate at SCI-Greene, the prison administrators there decided he had to be in a prison that had heat in his cell because of a back injury he suffered in a 1993 DOC van accident. (Original Compl. ¶¶ 13-16). Plaintiff was transferred to SCI-Huntingdon (in 2006, id. ¶ 62) but was placed on BA-Block, a block with opened windows, no ventilation, and radiators with no heat. (Id. ¶ 18). Further, Plaintiff's cell was on the bottom tier, where the cold air collected. Huntingdon did have F-Block, which was a block with bottom, single cells for inmates with Plaintiff's back condition, but that option was ignored. (Id. ¶ 21).
In 2007, Plaintiff filed a grievance seeking a transfer to another prison. (Am. Compl. Part V ¶ 1). Defendants Keller and Lovett and "other administrators" supported Plaintiff verbally and in writing and said they would transfer Plaintiff if "medical" recommended it. (Id. ¶ 3). The medical department did support Plaintiff's need to be in a prison that provided heat to his back and body and wrote reports and made phone calls to the defendants in support. (Original Compl. ¶ 41). The BA-Block unit team, including Lovett, told Plaintiff he would be transferred, either to SCI-Graterford or SCI-Dallas, after he was seen by the Parole Board. (Original Compl. ¶¶ 22 and 23; Am. Compl. Part V ¶ 7). Defendant ...