The opinion of the court was delivered by: (Judge Conner)
Plaintiff Damont Hagan ("Hagan") initially filed this action on April 26, 2010. (Doc. 1.) The matter is proceeding via a second amended complaint. (Doc. 45.) The following individuals are named as defendants: Deputy Secretary, Department of Corrections Central Office, David Novitsky ("Novitsky"); Superintendent John Palakovich ("Palakovich"); Lieutenant Nathan Goss ("Goss"); Corrections Officer Barry Jones ("Jones"); Sergeant William Warner ("Warner"); Houser; Nurse K. Moore; Unit Manager Chris Chambers ("Chambers"); Corrections Officer Robert Eger ("Eger"); Corrections Officer Mark Spieles ("Spieles"); Corrections Officer Brant Brant; Corrections Officer Andy Hubert ("Hubert"); Corrections Officer Phelps; and Corrections Officer Bankes. Also named as a defendant is Shirley Smeal ("Smeal"); Deputy Director, Department of Corrections Central Office. However, Hagan seeks to voluntarily dismiss the claims against this defendant; Smeal will be terminated as a defendant pursuant to Federal Rule of Civil Procedure 41(a)(2). (Doc. 54, at 9, ¶ 6.)
Presently pending is defendants' motion to dismiss all claims contained in the second amended complaint except the excessive force claim against Corrections Officers Spieles, Hubert, Jones, and Bankes, contained in Count I and his conspiracy claims in Count III against Sergeant Warner, Unit Manager Chambers, Sergeant Houser, and Lieutenant Goss. (Doc. 47 at 3-4, 6.) Based on the discussion set forth below, the motion will be granted in part and denied in part.
Also pending is Hagan's "motion to disregard and reprimand," (Doc. 61), which will be construed as a sur reply and considered by the Court in disposing of the motion to dismiss. Hagan's brief in support of his motion (Doc. 64), his reply brief(Doc. 66) and defendants' brief filed in opposition to plaintiff's motion (Doc. 64) will also be considered.
I. Allegations of the Second Amended Complaint
Hagan alleges that on August 1, 2008, while incarcerated in the Special Management Unit at the State Correctional Institution at Camp Hill, Corrections Officer Spieles approached his cell door and stated "Hagan you coming out to get your ass beat - I mean for a legal visit[?]" (Doc. 45, at 3, "Statement of Claim" ¶ 1.) He refused to come out until there was a camera to document his exit from the cell. (Id.) Defendant Spieles returned with Sergeant Jones, and Corrections Officers Hubert and Bankes, and informed him that there was a camera present. (Id.) After he agreed to be handcuffed defendants Spieles, Jones, Hubert and Bankes entered his cell and began kicking and punching him. He suffered injuries to his head, mouth, right hand and one of his knees. (Id. at 3, "Statement of Claim" ¶ 2.)
Following the assault, Hagan alleges that while on his rounds, Corrections Officer Phelps stopped at his cell door, noticed his injuries, and stated "it looks like you did that to yourself." (Doc. 45, at 5, ¶ 3.) When Hagan informed Phelps that his injuries were the result of an assault, Phelps laughed. (Id.) Nurse Moore came to the cell and, despite Hagan's report that he was injured during an assault, she refused to take pictures of his injuries because, after speaking with Phelps, she, too, believed the injuries were self-inflicted. (Id.)
Thereafter, because Hagan orally complained about being assaulted by corrections officers, Phelps issued a "fabricated misconduct" charging Hagan with causing injury to himself. (Id.) Allegedly, defendant Moore corroborated the misconduct with false medical documentation. (Id.)
2. Eger, Spieles and Palakovich
After the August 1, 2008 assault, Hagan filed a grievance against Corrections Officers Eger and Spieles. (Doc. 45, at 4, ¶ 10.) He alleges that upon becoming aware of the grievance, Eger and Spieles started giving information about his criminal case to inmate William Kulp. (Id., at 4, ¶ 11.) Also, after being notified by Hagan and the Human Rights Coalition of the assault, Superintendent Palakovich allegedly "informed William Kulp that he would transfer him if he informed detectives in [Hagan's] case that [he] was having someone take [his] case in September/August 2008." (Id. at ¶ 12.) "Based on Palakovich's, Eger's and Spieles [sic] directions, William Kulp gave dectives [sic] in my case false info, sabotaging my case on September 17, 2008." (Id. at ¶ 13.) In addition, Eger issued him a fabricated misconduct on September 2, 2008. (Id. at ¶ 14.)
Following numerous complaints against staff members who assaulted him, Hagan alleges that Corrections Officer Brant began harassing him by calling him a snitch. (Doc. 45, at 6, ¶ 15.) He filed grievances concerning this conduct in October 2008 and January 2008. (Id.) On January 20, 2009, Brant told Hagan that if he came out of his cell, he would assault him. (Id. at ¶ 17.) Moments later he was sprayed in the face with chemicals. (Id.) Brant commented "that if he didn't like it, he could write another grievance. . . ." (Id.)
In June 2008, Hagan received a letter "from a federal lawyer stating that [his] testimony was needed in a civil action against William Warner. . . ." (Doc. 45, at 4, ¶ 6.) "Both of these letters were given to [him] by Mark Spieles and opened and read outside of [his] door, and both letters stated that [his] testimony would be compelled in July of 2008 and on August 1, 2008 in the a.m. hours - Spieles informed [him]that he'd [let Warner know about this] in June of 2008." (Id.) Thereafter, defendants Spieles, Warner, Chambers, Houser and Goss conspired to threaten him so as to prevent him from testifying against Warner. (Id. at ¶¶ 7-8.)
Hagan alleges that defendant Palakovich's conduct following the August 1, 2008 assault displayed that he was indifferent to Hagan's plight. (Doc. 45, at 6, ¶ 24.)
Hagan alleges that Novitsky, Deputy Director at the Department of Corrections Central Office, was "indifferent" because "[i]n June and July of 2008 [he] informed David Novitsky of the intimidation and threats on [his] life by Spieles, Warner, Goss, Houser and Chambers regarding [his] intentions to testify in a federal civil action by complaint (written), and Novitsky responded by directing Camphill's internal security to threaten [him] on July 23 and July 24 of 2008, and offered no corrective action which led to the August 1, 2008 assault." (Doc. 45, at 4, ¶ 9.)
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). 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)). Although the court is generally limited in its review to the facts contained in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
Federal notice and pleading rules require the complaint to provide "the defendant notice of what the . . . claim is and the grounds upon which it rests." Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Twombly, 550 U.S. 544). 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"); Iqbal, ---U.S. ---, 129 S.Ct. at 1949 (explaining that Rule 8 requires more than "an unadorned, the-defendant unlawfully-harmed-me accusation"); Twombly, 550 U.S. at 555 (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"). Thus, to prevent a summary dismissal, civil complaints must now allege "sufficient factual matter" to show that a claim is facially plausible. See Iqbal, 129 S.Ct. at 1949--50; see also Twombly, 505 U.S. at 555, & n. 3; Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). This then "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1948.
The Third Circuit now requires that a district court must conduct the two-part analysis set forth in Iqbal when presented with a motion to dismiss:
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. [Iqbal, 129 S.Ct. at 1949--50]. 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." [Id.] 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. See Phillips, 515 F.3d at 234--35. 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 ...