The opinion of the court was delivered by: (Judge Conner)
Plaintiff Peter Taylor ("Taylor"), an inmate formerly housed at the United States Penitentiary at Canaan ("USP-Canaan"), commenced this Bivens*fn1 action on December 27, 2011. (Doc. 1.) Named as defendants are the following individuals employed at USP-Canaan: C.O. R. Sanders ("Sanders"); Lt. B. Sudul ("Sudul");
Lt. R. Thomas ("Thomas"); and Teacher T. Salzameda ("Salzameda"). Before the court is a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b), or in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Doc. 21.) For the reasons set forth below, the motion to dismiss will be granted in part and the motion for summary judgment will be granted in part.
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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). 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"); Ashcroft v. Iqbal, ---U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (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, courts should not dismiss a complaint for failure to state a claim if it contains "enough factual matter (taken as true) to suggest the required element. 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).
B. Allegations of the Complaint
On November 16, 2010, while Taylor was in the Chow Hall at USP-Canaan, defendant Sanders allegedly threatened him and assaulted him by pushing him and punching him in the back. (Doc. 1, at ¶ 10.) He states that Sanders took him to the Lieutenant's Office and put him "in the cage." (Id.) Taylor informed Sanders that he wanted to speak to a lieutenant about the assault. (Id. at ¶ 11.)
Later, defendants Sudul and Thomas entered the Lieutenant's Office and began verbally threatening Taylor. (Doc. 1, at ¶ 12.) Thomas allegedly "jump[ed] up" in his face and said "[w]ho the f_ _ _ you think you are wanting to complain about what my officer did to you." (Id. at ¶ 13.) "Lt. B. Sudul then got in my face and said 'Don't worry I promise I'ma [sic] get you, I promise I'ma [sic] set you up. You don't make complains [sic]. Now get the f_ _ _ out of here." (Id. at ¶ 14.)
Taylor further alleges that "on or about 6:00 p.m. on Nov. 16, 2010, while in the classroom of the education department, Ms. Salzameda which is a defendant came into the classroom, why you complaining about staff. Plaintiff ask defendant can he explain. Defendant Salzameda told plaintiff she talk[ed] to Defendant Sudul, and that Defendant Sudul wanted Defendant Salzameda to write plaintiff up because plaintiff was making a complaint on Defendant R. Sanders. Defendant Salzameda told plaintiff she was going to write a false incident report." (Doc. 1, at ¶¶ 15-16.)
Thereafter, Taylor was escorted to the Lieutenant's Office. (Doc. 1, at ¶ 17.) Both Sudul and Thomas then approached him and informed him that they arranged for Salzameda to write a false incident report because of Taylor's complaint against Sanders, and Sudul took Taylor's watch and hat. (Id. at ¶ 18.) He was then taken to the Special Housing Unit ("SHU"). (Id. at ¶ 19.) Minutes later, Sudul served him with the incident report and stated "I told you I was going to set you up. I wrote so much shit on you, you going to be in the program." (Id.) On November 24, 2011, Taylor had his disciplinary hearing. He was found guilty and placed in the SHU for ninety days. (Id. at ¶ 21.)
Taylor alleges that defendant Sanders violated his eighth amendment rights by using excessive force. (Doc. 1, at ¶ 24.) He also alleges that defendants Sudul, Thomas and Salzameda violated his constitutional rights when they conspired to issue him a fabricated incident report in retaliation for lodging a complaint against defendant Sanders. (Doc. 1, at ¶¶ 26-28.)
Bivens is analogous to its statutory cousin, 42 U.S.C. § 1983*fn2 , which allows federal suits of state agents who commit civil rights violations while acting under color of state law. The required elements of a Bivens claim are (1) the conduct complained of was a person acting under color of law, and (2) the conduct deprived that person of a right, privilege, or immunity secured by the Constitution. See, e.g., ...