The opinion of the court was delivered by: Magistrate Judge Susan Paradise Baxter
A. Relevant Procedural History
On or about October 24, 2008, Plaintiff Jaime Otero, an individual formerly incarcerated at the Bucks County Prison ("BCP"), filed this civil rights action pursuant to 42 U.S.C. § 1983.*fn2
Named as Defendants are: PTS of America, LLC, a private transportation company that was retained by Bucks County to transport Plaintiff back and forth between SCI-Forest and BCP ("PTS"); Thor Catalogne, an official at PTS ("Catalogne"); Stephen Etter, a driver employed by PTS ("Etter"); Patrick S. Canada, a driver employed by PTS ("Canada"); Bucks County, Pennsylvania ("Bucks County"); Michelle Henry, former District Attorney of Bucks County ("Henry"); Steven Jones, Assistant District Attorney of Bucks County ("Jones"); Harris Gubernick, Director of Corrections at BCP ("Gubernick"); Dale Haring, Case Manager Supervisor at BCP ("Haring"); and Edward J. Donnelly, Sheriff of Bucks County ("Donnelly").
After filing his original complaint [ECF No. 7], Plaintiff subsequently filed an amended complaint on December 1, 2009 [ECF No. 60], and a second amended complaint on January 26, 2010 [ECF No. 69]. The second amended complaint subsumes the allegations of Plaintiff's first two complaints, and is deemed to be the operative statement of Plaintiff's claims. In his second amended complaint, Plaintiff raises claims under the fifth, sixth, eighth and fourteenth amendments to the United States Constitution, as well as state law tort claims of negligence and intentional infliction of emotional distress, arising from injuries he sustained in a motor vehicle accident involving the PTS vehicle in which he was being transported from BCP to SCI-Forest. As relief for his claims, Plaintiff seeks declaratory and injunctive relief and monetary damages.
On February 12, 2010, Defendants Bucks County, Donnelly, Gubernick, Haring, Henry, and Jones filed a motion to dismiss [ECF No. 71], asserting that Plaintiff's second amended complaint fails to state a claim against them upon which relief may be granted and should be dismissed or, in the alternative, that this action should be transferred to the United States District Court for the Eastern District of Pennsylvania. On February 15, 2010, Defendants Etter, Canada, PTS, and Catalogne filed separate motions to dismiss [ECF Nos. 73, 75, 77, 79], asserting that they are not "state actors" subject to suit under 42 U.S.C. § 1983, and that Plaintiff has failed to state a claim against them upon which relief may be granted in any event. Plaintiff has since filed a response to each of Defendants' motions. [ECF Nos. 82-86]. This matter is now ripe for consideration.
B. Relevant Factual History*fn3
At all times relevant to this case, Plaintiff was serving a sentence of one to five years at SCI-Forest for Driving Under the Influence, and was also awaiting trial on new charges of Simple Assault and Possession of a Controlled Substance in or around Bucks County, Pennsylvania. (Id. at ¶ 4). On or about March 20, 2008, officials for Defendant Bucks County retained Defendant PTS to transport Plaintiff from SCI-Forest to BCP, because Plaintiff had a scheduled hearing on March 24, 2008, and a scheduled trial date of April 14, 2008, with regard to the new charges. (Second Amended Complaint, ECF No. 69, at ¶¶ 17, 18). On April 10, 2008, at around 11:00 p.m., Defendant Canada arrived at BCP to pick up Plaintiff for transportation back to SCI-Forest. (Id. at ¶ 19). Plaintiff protested, informing Defendant Canada and BCP correctional officers that he had a trial date on April 14; however, Plaintiff was told that he could not refuse the transport back to SCI-Forest. (Id.). Sometime during the early morning hours of April 11, 2008, Defendant Etter relieved Defendant Canada as the driver of the transport vehicle. (Id. at ¶ 20, 56). At around 5:00 a.m., Defendant Etter allegedly "failed to maintain control" of the vehicle and caused it to "collide with the side of a hill." (Id. at ¶¶ 20, 59). As a result of the accident, Plaintiff allegedly suffered "severe injuries to his neck and back areas." (Id. at ¶ 21).
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 19, 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 discovery will reveal evidence of' the necessary element." Phillips, 515 F.3d at 234, quoting Twombly, 550 U.S. at 556.
Recently, the Third Circuit expounded on the Twombly/Iqbal/Phillips line of cases:
To prevent dismissal, all civil complaints must now set out "sufficient factual matter" to show that the claim is facially plausible. This then "allows the court to draw the reasonable inference that the defendant is liable for the alleged misconduct."
[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. As the Supreme Court instructed in Iqbal, "[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'show[n]' - 'that the pleader is entitled to relief.'" This "plausibility" requirement will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009)(emphasis added)(citations omitted).
Pro se pleadings, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers" Haines v. Kerner, 404 U.S. 519, 520 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant's unfamiliarity with pleading requirements. See Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969)("petition prepared by a prisoner... may be inartfully drawn and should be read 'with a measure of tolerance'"); Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir.1997)(overruled on other grounds). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)(discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Company, 906 F.2d 100, 103 (3d Cir. 1990)(same). Because Plaintiff is a pro se litigant, this Court will consider facts and make inferences where it is appropriate.
1. "Care, Custody, Control and Safety Policy"
Plaintiff alleges that each of the Defendants violated the "Care, Custody, Control and Safety Policy;" however, as several Defendants correctly point out, "Plaintiff fails to provide a citation to any statute, regulation, or other source of legal rights which is known as the 'Care, Custody, Control and Safety Policy.'" (See, e.g., ECF Nos. 78 and 80 at p. 3). Plaintiff similarly fails to provide an appropriate citation to, or description of, any such policy in his memoranda of points and authorities in opposition to Defendants' motions to dismiss. (ECF Nos. 41 and 43, incorporated by reference in ECF Nos. 82-86). Without an appropriate citation to and/or description of the alleged policy Plaintiff claims Defendants violated, Plaintiff's claim based upon such an alleged policy must be dismissed.
Plaintiff also claims that each of the Defendants generally violated his rights under the Prisoner Transfer Act, 61 P.S. § 72, which has since been supplanted by its successor statute at 61 Pa.C.S. § 1151.*fn4 In response, several Defendants argue that "[n]either the now-repealed 61 P.S. § 72 [n]or the successor statute 61 Pa.C.S. § 1151 contain any provisions which furnish a basis for Plaintiff to obtain relief." (ECF Nos. 74, 76, 78 and 80 at p. 3). The Court agrees. The Prisoner Transfer Act (the "Act") merely authorizes the transfer of inmates between, inter alia, state and county correctional institutions, either on a long-term or temporary basis. It does not govern the manner in which an inmate is transported between institutions, nor does it prescribe any safety guidelines that must be followed during a transfer. Thus, Plaintiff's attempt to recover damages under the Prisoner Transfer Act is misplaced, and his claims against Defendants based upon their alleged violation of said Act will be dismissed.
3. Fourteenth Amendment Due Process
Against each Defendant, Plaintiff attempts to invoke the broader protection of the Fourteenth Amendment Due Process Clause by claiming that he was a pretrial detainee at BCP.*fn5
However, although Plaintiff was at BCP awaiting trial on new charges, he was still serving a sentence at SCI-Forest as a result of a prior conviction. Thus, Plaintiff was a convicted inmate at the time of the transport vehicle accident at issue, thereby rendering the Fourteenth Amendment inapplicable to Plaintiff's claims. See Hall v. Berdanier, 2010 WL 2262045 at *1 n. 1 (M.D.Pa. June 1, 2010), citing Laza v. ...