The opinion of the court was delivered by: (judge Caputo)
(MAGISTRATE JUDGE BLEWITT)
Presently before the Court is the Report and Recommendation of Magistrate Judge Blewitt (Doc. 27) to Plaintiff's Amended Complaint (Doc. 25.) The Magistrate Judge recommends dismissing, with prejudice, six (6) of the eight (8) counts in Plaintiff's Amended Complaint. (Doc. 27.) The Magistrate Judge also recommends dismissing, with prejudice, seventeen (17) of the twenty-one (21) Defendants named in the Amended Complaint. (Doc. 27.) Plaintiff, through counsel, filed numerous objections to the Report and Recommendation. Because the Court agrees with the Magistrate Judge's recommendations, the Report and Recommendation will be adopted in its entirety.
As set forth in Magistrate Judge Blewitt's Report and Recommendation (Doc. 27), Plaintiff Abdel Fattah's*fn1 Amended Complaint names as Defendants twenty-one (21) state and federal employees claiming Defendants violated his constitutional rights. (Doc. 25.)*fn2
The Amended Complaint's introduction states that Plaintiff seeks relief from Defendants "in their personal/individual capacities." (Doc. 25.) The Amended Complaint asserts eight (8) causes of action against all Defendants: (1) Eighth Amendment denial of medical care claim; (2) Eighth Amendment failure to protect claim; (3) Eighth Amendment unconstitutional conditions of confinement claim; (4) Fourth and Eighth Amendment unreasonable searches and seizures claim; (5) Fifth and Fourteenth Amendment due process claim; (6) Fifth and Fourteenth Amendment equal protection claim; (7) Americans with Disabilities Act ("ADA") and Rehabilitation Act claim; and (8) Federal Detention Standards claim. (Doc. 25.)
Pursuant to the Prison Reform Litigation Act, 28 U.S.C. 1915, Magistrate Judge Blewitt screened Plaintiff's Amended Complaint to determine whether Plaintiff properly stated claims for which relief could be granted. As Plaintiff's claims are predicated on his alleged deprivation of constitutional rights by state and federal employees, the Magistrate Judge screened Plaintiff's state actor claims under § 1983 and Plaintiff's federal actor claims pursuant to § 1331 and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971).
On September 14, 2011, Magistrate Judge Blewitt issued a Report and Recommendation ("R & R") recommending that six (6) of the eight (8) claims in Plaintiff's Amended Complaint be dismissed with prejudice. (Doc. 27.) Magistrate Judge Blewitt also recommends dismissing seventeen (17) of the twenty-one (21) Defendants from the action with prejudice. (Doc. 27.) The Magistrate Judge recommends, however, that the action proceed against Defendants Rackovan, Somich, Granlund, and Dr. Symonds on the Eighth Amendment denial of proper medical care claim and the Eighth Amendment conditions of confinement claim. (Doc. 27.)
Plaintiff filed timely objections. (Doc. 28.) According to Plaintiff, Magistrate Judge Blewitt committed clear error in the following respects: (1) improperly screening Plaintiff's Amended Complaint; (2) improperly characterizing the litigation capacity of Defendants; (3) improperly concluding that Plaintiff failed to allege an exhaustion of remedies; (4) improperly concluding that a number of Plaintiff's allegations were untimely and barred by the statute of limitations; (5) improperly characterizing the claims against Secretary Beard as based on a theory of respondeat superior; (6) improperly concluding that Plaintiff failed to sufficiently allege a constitutional violation against Nurse Lamas; (7) improperly concluding that Plaintiff failed to adequately allege a denial of access to the courts claim; (8) improperly finding that Plaintiff failed to sufficiently allege a failure to protect claim; and (9) improperly issuing an opinion on ultimate, well-pleaded issues of fact.
1. Legal Standard in Reviewing a 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)). However, this only applies to the extent that a party's objections are both timely and specific. Goney v. Clark, 749 F.2d 5, 6--7 (3d Cir.1984) (emphasis added). In conducting a 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 law 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, 100 S.Ct. 2406, 65 L.Ed.2d 424 (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, 106 S.Ct. 466, 88 L.Ed.2d 435 (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). Therefore, the Court reviews the portions of the Report and Recommendation to which the Plaintiff objects de novo. The remainder of the Report and Recommendation is reviewed for clear error.
2. Legal Standard for a Motion to Dismiss
A court screening a Complaint pursuant to the Prison Reform Litigation Act uses the same standard as it does for a 12(b)(6) motion to dismiss. See Shover v. York Cty. Prison, No. 3:11-CV-2248, 2012 WL 720858, at *2 (M.D. Pa. Mar. 1, 2012). 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. When considering a Rule 12(b)(6) motion, the Court's role is limited to determining if a plaintiff is entitled to offer evidence in support of their claims. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The Court does not consider whether a plaintiff will ultimately prevail. See id.
"A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). The statement required by Rule 8(a)(2) must 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, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Detailed factual allegations are not required. Twombly, 550 U.S. at 555. However, mere conclusory statements will not do; "a complaint must do more than allege the plaintiff's entitlement to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir.2009). Instead, a complaint must "show" this entitlement by alleging sufficient facts. Id.
Dismissal is therefore only appropriate 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," Twombly, 550 U.S. at 570, 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). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 1950.