The opinion of the court was delivered by: Chief Magistrate Judge Lisa Pupo Lenihan
Plaintiff, Konata Matthews ("Plaintiff") brings this action alleging that Defendants violated his rights under 42 U.S.C. § 1981, § 1983, and various state tort laws and state and federal criminal statutes. Plaintiff has sued the following Defendants in their individual capacities: Jeffrey Beard (former Secretary of the Pennsylvania Department of Corrections), Judy Smith (Superintendent's Assistant and Grievance Coordinator at SCI-Pine Grove), Susan Myers (CHCA at SCI-Pine Grove), T. Bearer (Correctional Food Service Manager at SCI-Pine Grove), Carol Zubur (Mail Inspector Supervisor at SCI-Pine Grove), Mark Thomas (Security Lieutenant at SCI-Pine Grove), E.D. Yeager (Correctional Officer at SCI-Houtzdale), and Jaime B. Boyd (Assistant Counsel of the Governor's Office of General Counsel). Defendants have filed a Motion to Dismiss Plaintiff's Complaint. (ECF No. 18.) Although given an opportunity to file a response in opposition to Defendants' Motion or an Amended Complaint, Plaintiff did neither. (ECF Nos. 20, 21, 22, 47, 48.)
Plaintiff alleges that on December 22, 2009, while he was exiting the cafeteria at SCI-Pine Grove, Defendant Bearer, the Food Service Manager, asked if Plaintiff was interested in working in Food Service. (ECF No. 3 at ¶ 16.) When Plaintiff said no, Defendant Bearer stated she was not interested in his employment but instead wanted to have sex with him. Id. Plaintiff states that he reported this incident the next day to Defendant Thomas, Security Lieutenant, and several days later Defendant Bearer approached Plaintiff stating that she hated him "with a passion" and that he had better watch what he eats because she was "gone [sic] prepare a special meal just for you you Islamic nigger." Id. at ¶¶ 17-18. The following day, Plaintiff filed a complaint against Defendant Bearer to the DOC's Office of Professional Responsibility ("OPR"). Id. at ¶ 19.
Plaintiff states that, after he was assaulted by three prisoners, he was placed in the infirmary on January 1, 2010, and on January 5, 2010, Defendant Myers, the CHCA, demanded that Plaintiff withdraw a grievance he had filed against the physician's assistant for denial of proper health care and making racial slurs. Id. at ¶¶ 20-21. When Plaintiff refused, Myers supposedly stated that Plaintiff was in for a "rude awakening" and called Plaintiff a "black bastard" saying "I hate you Muslims." Id. at ¶ 21. Plaintiff claims he filed a complaint with the OPR against Myers the next day. Id. at ¶ 22. He alleges that Myers approached him on January 11, 2010, and told him that the complaints to OPR "were faxed back to us you stupid ass Muslim. I got a hell of a dosage for you nigger." Id. at ¶ 23.
Plaintiff alleges that on January 12, 2010, Defendant Zubur delivered mail to the infirmary and handed Plaintiff his "Final Call" newspaper with a swastika drawn on it. Id. at ¶ 24.
On January 14, 2010, while still in the infirmary, Plaintiff told Defendant Myers that he had not received his breakfast tray and she told him that she would call for one. Id. at ¶ 25. Defendant Bearer subsequently delivered a tray and took it to Defendant Myers' office instead of directly to Plaintiff. Id. A few minutes later, Defendant Bearer came out of Defendant Myers' office and handed the tray to Plaintiff, who immediately noticed some "tablets" mixed in with his Rice Krispies cereal. Id. The next day, Plaintiff sent five of the nine tablets from his cereal to a nurse who told him they were nitroglycerin tablets. Id. at ¶ 26. After explaining that they had been mixed in his food the previous day, the nurse informed him that she would contact the security office. Id.
On January 17, 2010, Defendant Thomas visited Plaintiff in the infirmary to review the swastika and the nitroglycerin tablets. Id. at ¶ 27. Plaintiff states he gave Defendant Thomas the drawing, five of the nine tablets, and a grievance regarding both matters, and Thomas said all the evidence would be held in the security office for investigation. Id.
Plaintiff filed a motion for a temporary restraining order in a
pending case in the Middle District of Pennsylvania*fn1
regarding the swastika drawing and the nitroglycerin tablets,
and he requested that he be transferred to another facility. Id. at ¶
29. Plaintiff states that he attached the tablets "as evidence," but
that they were returned to him by the Clerk's office the following
day. Id. at ¶ 30. On February 8, 2010, Defendant Boyd filed a brief in
opposition to Plaintiff's motion for temporary restraining order
containing, among other things, declarations from Defendants Thomas,
Smith, and Myers stating that Plaintiff's allegations were fabricated.
Plaintiff alleges that he received another "Final Call" newspaper with a swastika drawn on it, this time from Defendant Myers on February 15, 2010. Id. at ¶ 32. On February 19, 2010, Defendant Bearer delivered his lunch tray on which there was an envelope folded up inside his Styrofoam cup, addressed to Plaintiff with a "happy face" sticker. Id. at ¶ 33. Plaintiff claims the envelope contained a "death threat" which said "we kill rat-coons." Id. at ¶ 33. Plaintiff says he "positively identified" the handwriting as Defendant Bearer's. Id. Plaintiff claims that Defendant Zubur delivered mail to the infirmary on March 2, 2010, and as she handed him his "Final Call" newspaper with another swastika drawn on it she allegedly stated "you black ass Muslim monkeys better stop referring to us whites as devils in this sinful paper." Id. at ¶ 34.
Plaintiff claims he sent a grievance to Defendant Smith on March 3, 2010, which covered, among other things, the nitroglycerin tablets, the swastikas on his papers, and the "death threat" from Defendant Bearer. Id. at ¶ 35. Plaintiff states that Defendant Smith responded on July 1, 2010, and rejected his grievance as untimely. Id.
Plaintiff was placed in the Restricted Housing Unit ("RHU") on March 5, 2010, and on March 8, 2010, Defendant Zubur delivered his mail. Id. at ¶¶ 36-37. He claims that all three pieces of his mail had confederate flag stickers on them and the mail from the PA Institutional Law Project had the phrase "die coon we hate Muslims" written on it. Id. at ¶ 37. Plaintiff states that he later identified the handwriting as that of Defendant Smith. Id. According to Plaintiff, he filed a grievance about this incident on March 9, 2010, but Defendant Smith rejected it as untimely. Id. at ¶ 38.
Plaintiff was transferred to SCI-Houtzdale on March 10, 2010. Id. at ¶ 39. He filed another complaint with OPR raising the issues with the nitroglycerin tablets, his newspaper, and mail, and on July 26, 2010, OPR advised Plaintiff that his allegations of abuse had been thoroughly investigated by the Security Department at SCI-Pine Grove and had been determined to be unfounded. Id. at ¶¶ 40-41.
Plaintiff alleges that on March 9, 2011, he returned to his cell to find his "Final Call" newspaper delivered with a Ku Klux Klan sticker on it accompanied by certain racially discriminatory statements. Id. at ¶ 44. Plaintiff claims to have "positively identified" the handwriting on the newspaper as that of Defendant Yeager. Id. Plaintiff filed a complaint to OPR regarding the incident on March 11, 2011. Id. at ¶ 45.
When considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), courts must accept all factual allegations in the complaint as true and read them in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir. 1985). 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. 554, 556 (2007). "Factual allegations must be enough to raise a right to relief above a speculative level." Id. at 555. The court need not accept inferences drawn by the 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. Bell Atlantic Corp., 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Additionally, a civil rights claim "must contain specific allegations of fact which indicate a deprivation of constitutional rights; allegations which are nothing more than broad, simple and conclusory statements are insufficient to state a claim under § 1983." Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987).
Courts generally consider the allegations of the complaint, attached exhibits, and matters of public record in deciding motions to dismiss. Pension Benefit Guar. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). Factual allegations within documents described or identified in the complaint also may be considered if the plaintiff's claims are based upon those documents. Id. (citations omitted). Moreover, a district court may consider indisputably authentic documents without converting a motion to dismiss into a motion for summary judgment. Spruill v. Gills, 372 F.3d 218, 223 (3d Cir. 2004); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
Finally, a court must employ less stringent standards when considering pro se pleadings than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a section 1983 action, the court must "apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name." Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) ("Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.") (quoting Higgins, 293 F.3d at 688). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 2102 (10th Cir. 1996).
Plaintiff raises the following fifteen claims for relief: (1) racial intimidation and harassment (Count 1), (2) religious and malicious harassment (Count 2), (3) civil conspiracy (Count 3), (4) violation of the Pennsylvania Hate Crimes Act, 18 Pa. C.S. § 2709 et seq (Count 4), (5) violation of the Federal Anti-Terrorism Act, 18 U.S.C. § 2331 (Count 5), (6) intentional infliction of emotional distress (Count 6), (7) aiding and abetting intentional or reckless infliction of emotional distress (Count 7), (8) outrage (Count 8), (9) negligence (Count 9), (10) gross negligence (Count 10), (11) negligent infliction of emotional distress (Count 11), (12) liability under the Anti-Terrorism ...