The opinion of the court was delivered by: Judge Conaboy
Background This pro se civil rights action pursuant to 42 U.S.C. § 1983 was filed by Steven Allen Shawley, an inmate presently confined at the Fayette State Correctional Institution, LaBelle, Pennsylvania (SCI-Fayette). By Memorandum and Order dated March 17, 2007, dismissal was entered in favor of the following Corrections Defendants: Pennsylvania Department of Corrections (DOC), Jeffrey Beard, Clifford O'Hara, Pete Damiter, James Wynder, James McGrady and Reed Patterson. See Doc. 19.
By Memorandum and Order dated March 23, 2010, Shawley's request that this Court recuse itself was denied and summary judgment was granted in favor of Corrections Defendants Sergeant William Bowden; Correctional Officers (CO) Michael Solarek, Frederick Bleich, and John Galabinski. See Doc. 79. Remaining Defendants are Psychiatrists Kale and Chakravorty; Psychologist David Pastucka*fn1; and Mental Health Unit (MHU) Program Coordinator David Mont. Pastucka and Mont are psychologists employed in the MHU at Plaintiff's prior place of incarceration, the State Correctional Institution, Frackville, Pennsylvania (SCI-Frackville). Kale and Chakavorty are described as being SCI-Frackville MHU psychiatrists.
In his complaint, Shawley states that while previously confined at the State Correctional Institution, Dallas, Pennsylvania (SCI-Dallas), he was subjected to retaliation by members of that prison's correctional staff for his prior initiation of a federal civil rights action against SCI-Dallas officials. This purported retaliation included the use of other inmates to "abuse/assault him." Doc. 1, ¶ 16. Plaintiff was subsequently transferred to the SCI-Frackville Mental Health Unit (MHU) where he remained from August 2, 2004 until September 20, 2004.
While in the SCI-Frackville MHU, Plaintiff asserts that he repeatedly told Defendants Chakravorty, Pastucka, and Mont that he was afraid to return to SCI-Dallas because of the alleged prior retaliatory abuse he suffered at that facility. Shawley purportedly requested that those Defendants make a recommendation to the Pennsylvania Department of Corrections (DOC) and various DOC supervisory officials to have him sent to a correctional facility other than SCI-Dallas. See Doc. 1 ¶ 17. Despite his above described requests, Shawley was nonetheless returned to SCI-Dallas where he purportedly was subjected to additional retaliatory mistreatment.*fn2
Presently pending is a motion to dismiss filed by Remaining Defendants Pastucka and Mont. See Doc. 72. The motion is unopposed.
Defendants Pastucka and Mont claim entitlement to entry of dismissal on the grounds that: (1) Shawley's action is subject to dismissal under 28 U.S.C. § 1915(g); (2) they had no authority to prevent Plaintiff's transfer and no duty to intercede on his behalf; and (3) Plaintiff fails to allege any actionable harm.
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept as true all factual allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007)(quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). The plaintiff must present facts that, if true, demonstrate a plausible right to relief. See Fed. R. Civ. P. 8(a)(stating that the complaint should include "a short and plain statement of the claim showing that the pleader is entitled to relief"); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"). Rule 8 demands "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, ___ U.S. ___,129 S.Ct 1937, 1949 (2009).
This requirement "calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of" the necessary elements of the plaintiff's cause of action. Twombly, 550 U.S. at 556. The reviewing court must determine whether the complaint "contain[s] either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Id. at 562.
A civil rights complaint should allege the conduct violating plaintiff's rights, the time and the place of that conduct, and the identity of the responsible officials. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Iqbal, 129 S.Ct at 1949. Legal conclusions must be supported by factual allegations and the complaint must state a plausible claim for relief. See id. at 1950. see also Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). It is additionally noted that pro se pleadings are to be construed liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972). Three Strikes
The Prison Litigation Reform Act of 1996 (PLRA) enacted what is commonly referred to as the three strikes provision. Codified at 28 U.S.C. § 1915(g), it directs that a federal civil action by a prisoner proceeding in forma pauperis is barred if he or she: has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
The only exception to the three strikes requirement is where the alleged unconstitutional conduct places the inmate plaintiff in danger of imminent "serious physical injury" at the time his complaint was filed. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001). It must be shown that "the danger of serious physical injury was imminent at the time the complaint was filed, not at the time of the alleged incident." McCarthy v. Warden, USP-Allenwood, 2007 WL 2071891 *2 (M.D. Pa. July 18, ...