The opinion of the court was delivered by: Cathy Bissoon United States Magistrate Judge
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
It is respectfully recommended that the Motion to Dismiss (Doc. 20) filed by Cornell Companies Defendants*fn1 be granted, and that the Motion to Dismiss or for Summary Judgment (Doc. 28) filed by the Federal Defendants*fn2 be granted.
Jose Perez-Barron, an inmate confined under judgment of sentence at the Moshannon Valley Correctional Center ("MVCC"), located in Philipsburg, Pennsylvania, commenced this prisoner civil rights lawsuit on April 30, 2009, in the United States District Court for the Middle District of Pennsylvania. Plaintiff alleges that he was denied his right to necessary medical care, and that this is a violation of due process and his rights under the Fourteenth Amendment to the United States Constitution (Doc. 1, pp. 10-11). Plaintiff was granted leave to proceed in forma pauperis, and the case was transferred to this Court on June 22, 2009.
The Cornell Companies Defendants move to dismiss on the basis that Plaintiff cannot sue them for an alleged violation of his civil rights (Doc. 20). Cornell Companies, Inc., is a private entity that operates MVCC under contract with the Federal Bureau of Prisons. Cornell Companies, Inc., and its employees, argue that the available means of suing a federal agent for the violation of civil rights, a suit pursuant to Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), does not apply to them. Plaintiff has responded to this motion (Doc. 27) and it is ripe.
The Federal Defendants also move to dismiss or for summary judgment (Doc. 28) on numerous bases. Plaintiff was directed to the respond to the motion on or before February 11, 2010, but no response to this motion has been filed.
Dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(6) if, reading the complaint in the light most favorable to the plaintiff, and accepting all factual allegations as true, no relief could be granted under any "reasonable reading of the complaint" Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). A complaint must be dismissed even if the claim to relief is "conceivable," because a plaintiff must 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). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. , 129 S.Ct. 1937, 1949 (2009).
A party=s burden in response to a well-pleaded motion for summary judgment is to present Aspecific facts showing that there is a genuine issue for trial" (Fed. Rule Civ. Proc. 56(e) (emphasis added)), or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The inquiry, then, involves determining "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id., 477 U.S. at 251-52.
1. The Cornell Companies ...