The opinion of the court was delivered by: William W. Caldwell United States District Judge
Anthony Alex, a convicted sex offender incarcerated at the Waymart State Correctional Institution (SCI-Waymart), in Waymart, Pennsylvania, filed this pro se action pursuant to 42 U.S.C. § 1983 alleging violations of his due-process and First Amendment rights because he is being denied contact with one of his victims, his eldest daughter, and participation in therapeutic programming. Named as defendants are the following Pennsylvania Department of Corrections (DOC) employees: the DOC Secretary Jeffrey Beard; SCI-Waymart Superintendent Joseph Nish; Unit Manager Joseph Grillo; Director of Bureau of Treatment Services Andres Prior Meintel; and Treatment Specialist Denise Bomba.
Defendants have filed a motion to dismiss.
Fed. R. Civ. P. 12(b)(6) authorizes the dismissal of a complaint for "failure to state a claim upon which relief can be granted." Under Rule 12(b)(6), the court 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)). The court is not limited to evaluating the complaint alone. It may also consider documents attached to the complaint and matters of public record. McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009)(citing Lum v. Bank of America, 361 F.3d 217, 221 n.3 (3d Cir. 2004)).
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), to survive a motion to dismiss 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).
In resolving a motion to dismiss, the court conducts "a two-part analysis." Fowler, 578 F.3d at 210. First, the court separates the factual elements from the legal elements and disregards the legal conclusions. Id. at 210-11. Second, the court "determine[s] 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).
However, "[a] document filed pro se is to be liberally construed," Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 160 L.Ed.2d 1081 (2007)(quoted case and internal quotation marks omitted), and "a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Id., 127 S.Ct. at 2200 (quoted case and internal quotation marks omitted). Pro se litigants are to be granted leave to file a curative amended complaint "even when a plaintiff does not seek leave to amend," unless such an amendment would be inequitable or futile. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). But a complaint that sets forth facts which affirmatively demonstrate that the plaintiff has no right to recover is properly dismissed without leave to amend. Grayson v. Mayview State Hospital, 293 F.3d 103, 106 (3d Cir. 2002).
This background is based on the allegations of the complaint and admissions made by Alex in documents he presented in support of his opposition to the defendants' motion to dismiss.
According to Alex, SCI-Waymart is not following DOC Policies as SCIWaymart "does not allow" sex offenders to enroll in the Sex Offender Program (SOP) "until 3 months before their minimums or after their minimums, which is denying the inmate parole." Doc. 1, Compl. at ¶¶ 3-4. SCI-Waymart is also denying inmates access to DOC policies. Id. at ¶ 5. Alex alleges that the DOC's Director of the Bureau of Treatment, Mr. Meintel, did not respond to Alex's March 30, 2009, letter regarding the way SCI-Waymart was running their programs. Id. at R. 4 and doc. 20, Pl.'s Opp'n Br. at RR. 40-42.*fn1 On March 18, 2009, when Alex was approximately twenty-one months away from his minimum sentence date, he claims his Unit Manager, Mr. Grillo, denied him access to therapeutic programming. See Doc. 20 at R. 41 and Doc. 1 at R. 4. On April 13, 2009, Mr. Grillo advised Alex that he was "not being denied [program participation]. You are still on the SOP wait list." Doc. 20 at R. 47. In July 2009, Alex was advised by his Counselor (a non-defendant) that programming does go by sentence minimum dates and that there are many inmates in need of the SOP. She also noted that Alex's minimum sentence date was December 2010 and that he was still on the SOP wait list. Id. at R. 52.
The DOC Handbook provides that inmates are not allowed to make calls to "a victim of the crime for which you are incarcerated, unless requested by the victim and approved of by the Facility Manager." Doc. 20 at R. 8. The DOC Handbook also identifies categories of "Prohibited Visitors" with whom an inmate cannot have visits without the approval of the Facility Manager. One such category is "any victim of the inmate (without prior approval)." Id. at R. 9. Alex asserts that SCI-Waymart is denying him "phone calls, visits and mail from [his] daughter Amanda." Doc. 1 at ¶ 6. In a letter written by Alex, he confirms that his daughter Amanda, "is one of [his] past victim[s] of [his] crime." Doc. 20 at R. 16. He claims prison ...