The opinion of the court was delivered by: Judge Caputo
MAGISTRATE JUDGE BLEWITT MEMORANDUM Presently before the Court are Magistrate Judge Blewitt's Report and Recommendation ("R & R") concerning Plaintiff's Motion to Proceed in forma pauperis of August 3, 2010 (Doc. 2) and Plaintiff Abdel Fattah's Objections to the Magistrate Judge's R&R (Doc. 13). Magistrate Judge Blewitt recommended that: (1) Plaintiff's Eighth Amendment claims against the owner, the director, and the medical director of Columbia Care Center, Columbia, South Carolina ("CCC") be dismissed without prejudice or transferred to the United States District Court for the District of South Carolina; (2) Plaintiff's claims challenging the U.S. Immigration and Customs Enforcement's ("ICE") detainment of him and the length of his detainment be dismissed with prejudice since those claims must be brought in habeas petitions; (3) Plaintiff's claims against Defendants Beard and Daube be dismissed with prejudice on similar grounds; (4) Plaintiff's claim that John Doe #1 illegally detained him in ICE custody an extra six months be dismissed with prejudice; (5) Plaintiff's claims against John Doe #1 Department of Homeland Security ("DHS") Director and Defendant Mitra be dismissed with prejudice and that both Defendants be dismissed from the action; (6) Plaintiffs' Eighth Amendment claims and First Amendment claim against Defendant Sobol be dismissed without prejudice to allow Plaintiff to file an Amended Complaint; and (7) Plaintiff's in forma pauperis Motion be granted. Defendant filed his Objections (Doc. 13) to the R&R, and the R&R is now ripe for disposition. This Court will adopt Magistrate Judge Blewitt's recommendations in their entirety for the reasons discussed more fully below.
The following is taken largely from Magistrate Judge Blewitt's summary of Plaintiff's allegations in Magistrate Judge Blewitt's Report and Recommendation. On June 17, 2008, Plaintiff was released from the Pennsylvania Department of Corrections to the Department of Homeland Security. Despite a severe illness that required IV tubes to be inserted into his arms at all times, unnamed DHS agents took him to JFK Airport and attempted to have him deported based on an order by Defendant Mitra. After the unlawful deportation attempt failed, Plaintiff was brought to York County Prison ("YCP") in York, Pennsylvania, where Defendant Sabol denied him necessary medical and psychiatric treatment. Plaintiff was also denied clothes and access to the courts for approximately two months, from mid-June to mid-August 2008. Plaintiff was then transferred to CCC due to his medical condition. While at CCC, he was denied medical care and given improper medical treatment, including having the wrong feeding tube inserted into the wrong place and not being given proper pain medication. Plaintiff complained to John Doe Defendants # # 2, 3, and 4, and wrote to John Doe Defendant #1, DHS Director, about his inadequate medical treatment and improper care but none of the Defendants took any action. Plaintiff was also unlawfully held in immigration custody for an extra six months by John Doe Defendant #1 DHS Director. Plaintiff has been forced to lived in unsanitary conditions, subjecting his surgeries to continual risk of infections. Plaintiff brought suit under U.S.C. § 1983, against the state officials, and Bivens, pursuant to §1331 against the federal officials, and seeks release from custody, and\or proper medical treatment, nominal, compensatory, and punitive damages, and for the named Defendants to be punished for breaking the law.
I. Objections to the Report and Recommendation
Where objections to the magistrate judge's report are filed, the Court must conduct a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)), provided the objections are both timely and specific, Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). In making its de novo review, the Court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard,829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the statute permits the Court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may be reviewed at a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at 7. At the very least, the Court should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376-77 (M.D. Pa.1998).
Plaintiff has filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. The Prison Litigation Reform Act of 1995 ("PLRA") obligates the Court to engage in a screening process when a prisoner wishes to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Specifically, § 1915(e)(2) provides:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that (A) the allegation of poverty is untrue; or (B) the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), meaning enough factual allegations "'to raise a reasonable expectation that discovery will reveal evidence of'" each necessary element, Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556); see also Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (requiring a complaint to set forth information from which each element of a claim may be inferred). In light of Federal Rule of Civil Procedure 8(a)(2), the statement need only "'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555). "[T]he factual detail in a complaint [must not be] so undeveloped that it does not provide a defendant [with] the type of notice of claim which is contemplated by Rule 8." Phillips, 515 F.3d at 232; see also Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007).
In deciding a motion to dismiss, the Court should consider the allegations in the complaint, exhibits attached to the complaint, and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). When considering a Rule 12(b)(6) motion, the Court's role is limited to determining whether a plaintiff is entitled to offer evidence in support of her claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court does not consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir.2000).
I. Plaintiff's Eighth Amendment Claims against the ...