The opinion of the court was delivered by: Chief Magistrate Judge Amy Reynolds Hay
Albert Dantzler ("Plaintiff") is a convicted prisoner who was incarcerated at SCI-Fayette at the time of the events giving rise to this civil action.*fn1 Plaintiff has filed a civil rights complaint naming eight Defendants, all of whom are employed by the Pennsylvania Department of Corrections ("DOC"). He alleges that they violated his First Amendment right of free speech and Fourteenth Amendment procedural due process rights when the Defendants authorized and/or participated in and/or upheld during the grievance process, the confiscation of Plaintiff's Uniform Commercial Code ("UCC") materials and other legal materials.
Presently before the Court is Defendants' Motion to Dismiss. Dkt. . Because Plaintiff had no First Amendment right to possess contraband, i.e., the UCC materials, the First Amendment claim is properly dismissed. Because Plaintiff had no property interest in the UCC materials, the procedural due process claim is properly dismissed at least as to the UCC materials. Alternatively, because he had an adequate post-deprivation remedy in either the DOC administrative remedies or a State law tort action, Plaintiff cannot succeed on a procedural due process claim.*fn2
As the United States Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), a complaint may properly be dismissed pursuant to Fed. R. Civ. P. 12 (b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Id. at 1974 (rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).*fn3 See also Ashcroft v. Iqbal, 556 U.S. ____, 129 S.Ct. 1937 (2009) (clarifying that Twombly standard not limited to antitrust context). To survive a motion made pursuant to Fed. R. Civ. P. 12(b)(6), a plaintiff must "make a 'showing' rather than a blanket assertion of an entitlement to relief." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir.2008). In other words, he must supply "enough facts to raise a reasonable expectation that discovery" will reveal evidence supporting his claim. Id. at 232 (quoting Twombly, 550 U.S. at 556 n.3).
The United States Court of Appeals for the Third Circuit has instructed:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.' In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 ( 3d Cir. 2009). Where the court is unable to infer more than a mere possibility of misconduct, the complaint does not "show" that the pleader is entitled to relief.
The court must, as a general rule, accept as true all factual allegations of the complaint and all reasonable inferences must be viewed in the light most favorable to plaintiff. Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir. 1985). Nevertheless, under the 12(b)(6) standard, a "court need not . . . accept as true allegations that contradict matters properly subject to judicial notice or by exhibit." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9 th Cir. 2001), amended by , 275 F.3d 1187 (9 th Cir. 2001). Nor must the court 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. Bell Atlantic Corp., 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
In addition to the complaint, courts may consider matters of public record and other matters of which a court may take judicial notice, court orders, and items appearing in the record of the case when adjudicating a motion to dismiss under Rule 12(b)(6). Winer Family Trust v. Queen, 503 F.3d 319, 328 -29 (3d Cir. 2007); Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n.2 (3d Cir. 1994)(in adjudicating motions to dismiss, courts may "consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case."). In addition, the Court of Appeals in Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004), held that a "defendant may submit an indisputably authentic [document] to the court to be considered on a motion to dismiss[.]"
The question to be resolved is: whether, taking the factual allegations of the complaint, which are not contradicted by the indisputably authentic exhibits and matters of which judicial notice may be had, and taking all reasonable inferences to be drawn from those uncontradicted factual allegations of the complaint, are the "factual allegations . . . enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true even if doubtful in fact[.]" Bell Atlantic Corp. v. Twombly, 550 U.S. at 555. Or, put another way, a complaint may be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570.
In addition, because Plaintiff was, at the time of the filing of this civil action,*fn4 a prisoner and because he named governmental entities or employees thereof as defendants, the screening provisions of the Prisoner Litigation Reform Act ("PLRA") found at 28 U.S.C. § 1915A apply herein. In addition, because he was a prisoner granted leave to proceed in forma pauperis to prosecute this suit, the screening provisions of 28 U.S.C. § 1915(e) also apply. Lastly, because he was a prisoner who filed a civil rights action complaining of prison conditions, the screening provisions of 42 U.S.C. § 1997e apply. The court's obligation to dismiss a complaint under the PLRA screening provisions for complaints that fail to state a claim is not excused even after defendants have filed a motion to dismiss. See, e.g., Lopez v. Smith, 203 F.3d 1122, 1126 n.6 (9 th Cir. 2000). Hence, if there is a ground for dismissal which was not relied upon by a defendant in a motion to dismiss, the court may nonetheless sua sponte rest its dismissal upon such ground pursuant to the screening provisions of the PLRA. See Lopez; Dare v. U.S., CIV.A.06-115E, 2007 WL 1811198, at *4 (W.D.Pa. June 21, 2007), aff'd, 264 Fed.Appx. 183 (3d Cir. 2008).
Plaintiff's complaint is brought pursuant to Section 1983 of the Civil Rights Act. In order to make out a claim under Section 1983, a plaintiff must demonstrate that the conduct of which he is complaining has been committed under color of state or territorial law and that it operated to deny him a right or rights secured by the Constitution and laws of the United States. The plaintiff must also establish that it was the acts of the defendant which caused the constitutional deprivation.
Mosley v. Yaletsko, 275 F.Supp.2d 608, 613 (E.D.Pa. 2003)(citations omitted). Defendants do not dispute that they act under color of state law. Hence, the only two remaining inquiries are whether the complaint states a violation of Plaintiff's rights and whether the Defendants caused that violation. We conclude that the complaint fails to state a violation of Plaintiff's rights.
Plaintiff claims that on or about August 6, 2008, Defendants Kremposky, Hooper, Johnson and Campbell came to his cell at SCI-Fayette and confiscated all of Plaintiff's paperwork and books based upon a suspicion that Plaintiff possessed UCC materials. Plaintiff claims that these four defendants refused to provide Plaintiff with "proper notice" of the alleged UCC materials confiscated. Dkt.  at 4, ¶ 2. He claims such, notwithstanding that Plaintiff himself provided to the Court in his response a copy of "Confiscated Items Receipt" which listed the following items that were confiscated: "one foot locker/paper-work," "two boxes legal work" and "U.C.C. materials." Dkt. [22-3] at 2.*fn5 Plaintiff does not explain how this "Confiscated Items Receipt" does not provide "proper notice" to him. It appears that Plaintiff complains the receipt is not specific enough. Plaintiff notes that "[f]rom information and belief, the UCC material confiscated and alleged to be illegal is a book entitled 'Uniform Commercial Code Commentary Text' and an envelope of about (20) or more pages of legal and personal paperwork . . . ." Dkt. 3 at 4, ¶ 3. Plaintiff alleges that the "UCC material confiscated," id., at ¶ 4, which presumably included the envelope of 20 pages or so, was destroyed shortly after being confiscated notwithstanding the fact that Plaintiff had not exhausted his administrative remedies to challenge the confiscation and notwithstanding the fact that there is a written policy that such confiscated materials will not be destroyed prior to a prisoner exhausting such administrative remedies.
Plaintiff complains that notwithstanding the written procedures, there is another, possibly unwritten, policy put in place and enforced by Defendants Beard, Varner, Coleman and Salvey, which has been in effect since July 2005, whereby the Defendants permit confiscation and destruction of prisoners' property without adequate notice and a meaningful review and prior to allowing them to exhaust their administrative remedies. Dkt.  at 4, ¶ 5.
Plaintiff also alleges that Defendants Beard, Varner, Coleman and Salvey also authorize and condone actions taken by Defendants Kremposky, Hooper, Johnson, and Campbell, whereby these latter four defendants are alleged to have falsified documents to undermine Plaintiff's claims, not only to deprive him of his property but also in ...