The opinion of the court was delivered by: Magistrate Judge Baxter
District Judge McLaughlin
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
It is respectfully recommended that Defendants' Motion to Dismiss Complaint [Document # 13] be granted.
On August 20, 2009, Plaintiff Jason Fourgson, an individual incarcerated at the State Correctional Institution at Forest in Marienville, Pennsylvania ("SCI-Forest"), filed this civil rights action pursuant to 42 U.S.C. § 1983. Named as Defendants are: the Pennsylvania Department of Corrections ("DOC") and the Pennsylvania Board of Probation and Parole ("PBPP").
Plaintiff has alleged that Defendants have committed "official oppression" and retaliation, and have violated his due process rights under the fourteenth amendment to the United States Constitution, by, inter alia: denying him parole based upon his alleged failure to complete prescribed programs; denying him z-code (single cell) status; failing to provide him with a timely parole board decision after a re-parole hearing; issuing him a misconduct for refusing to obey an order when he was "forced to receive a cellmate;" denying him proper mental health attention; and failing to deliver him "12 newspapers that contained the Super Bowl stars collector's edition." (See Complaint at Section III and attachments). As relief for his claims, Plaintiff "seek[s] prosecution" of unnamed individuals. (Id. at Section VI).
Defendants have filed a Motion to Dismiss Complaint [Document # 13] asserting that Plaintiff's claims should be dismissed because Defendants are immune from suit under the Eleventh Amendment and/or are not "persons" against whom suit may be brought under 42 U.S.C. § 1983. Despite being given ample time to do so, Plaintiff has failed to file a response to Defendants' motion. This matter is now ripe for consideration.
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, 93-94 (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 555, 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 555. 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 ...