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David Bohm v. Melissa Straw

January 8, 2013


The opinion of the court was delivered by: Lisa Pupo Lenihan Chief United States Magistrate Judge

District Judge Gibson

Chief Magistrate Judge Lenihan

ECF Nos. 27, 34, 41


For the following reasons, Defendants' Motion to Dismiss (ECF No. 27) will be granted, Plaintiff's Motion for Preliminary Injunction and Temporary Restraining Order (ECF No. 34) will be denied, and Plaintiff's Motion to Amend/Correct Complaint (ECF No. 41) will be denied.


David Bohm ("Plaintiff") is an inmate currently confined at the State Correctional Institution at Cresson ("SCI-Cresson"). He initiated this action in February 2012, by filing a prisoner civil rights complaint pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983. (ECF No. 5.) He named as Defendants Dorina Varner (Chief Grievance Officer for the Pennsylvania Department of Corrections) and the following employees of SCI-Cresson: Melissa Straw (Mailroom Supervisor), Rebecca Reifer (Grievance Coordinator), and Kenneth Cameron (Facility Manager). After Defendants filed a motion to dismiss the Complaint, Plaintiff filed an Amended Complaint on June 6, 2012. (ECF No. 29.) Plaintiff alleges that Defendants violated his rights under the First and Fourteenth Amendments to the United States Constitution in connection with the confiscation of a dictionary. Defendants have filed a Motion to Dismiss Plaintiff's Amended Complaint (ECF No. 27) and Plaintiff has filed a response in opposition to the Motion (ECF No. 30). The Motion is now ripe for review.

A.Plaintiff's Allegations and Factual Background

On September 7, 2011, Plaintiff's mother ordered a copy of Webster's Encyclopedic Unabridged Dictionary of the English Language (hereinafter referred to as "the dictionary") through (ECF No. 29 at ¶ 8.) The dictionary was sold by and shipped directly to Plaintiff from a company named "Goodwill Industries of the Heartland." Id. It arrived at SCICresson on September 12, 2011. Id. at ¶ 9.

Defendant Straw, the mailroom supervisor, inspected the dictionary upon its arrival and declared it contraband pursuant to the Pennsylvania Department of Corrections policy regarding Outside Purchases, DC-ADM 815 (hereinafter referred to as "the policy" or "DC-ADM 815"). Id. at ¶ 10. Specifically, the policy forbids inmates from purchasing from outside sources items that are available through the Commissary. (ECF No. 27-2 at 9-11.*fn1 ) Defendant Straw sent a notice informing Plaintiff that the dictionary was considered to be contraband under the policy and informed him that he would have the opportunity to return the book to the shipper, Goodwill Industries. (ECF No. 29 at ¶ 10; ECF No. 5-1 at 4; ECF No. 28 at 1-2.)

Plaintiff disputed the confiscation in request slips he sent to Defendant Straw and to Superintendent Defendant Cameron claiming that the dictionary met the Pennsylvania Department of Corrections policy concerning incoming publications, DC-ADM 803, as coming from an acceptable original source. (ECF No. 29 at ¶ 9; ECF No. 5-1 at 5-6.) Defendants Straw and Cameron responded that the dictionary was confiscated pursuant to DC-ADM 815, which did not permit inmates to order items that were available through the Commissary. (ECF No. 5-1 at 5-6.) Plaintiff also filed a grievance (#380950), which was denied by Defendant Straw pursuant to DC-ADM 815; the dictionary could not be obtained via an outside purchase because dictionaries were available for purchase in the Commissary. Id. at 11-14. Plaintiff appealed to Defendant Cameron who denied the appeal, upholding Defendant Straw's response. Id. at 15-16. Plaintiff's final appeal was denied by Defendant Varner on November 18, 2011. Id. at 17-19.

On December 2, 2011, the Pennsylvania Department of Corrections amended DC-ADM 803 (effective December 23, 2011) to reflect that incoming publications would not be considered outside purchases under DC-ADM 815 unless they could be obtained from the facility library. Id. at 28-29; (ECF No. 27-2.*fn2 ) This eliminated the previous Commissary restriction. (ECF No. 27-2 at 4.) Believing that the policy change supported his right to the dictionary, Plaintiff attempted to re-appeal Defendant Varner's final decision issued on November 18, 2011. (ECF No. 5-1 at 30.) This appeal was denied on January 9, 2012, because Plaintiff had already received a final disposition of the issue. Id. at 31.


A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). A complaint must be dismissed for failure to state a claim 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) (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Ashcroft v. Iqbal, 129 S. Ct.1937, 1949 (May 18, 2009) (citing Twombly,550 U.S. at 555-57). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556). The Supreme Court further explained:

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. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'"

Id. (citing Twombly, 550 U.S. at 556-57).

In Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. Aug. 18, 2009), the United States Court of Appeals for the Third Circuit discussed its decision in Phillips v. County of Allegheny, 515 F.3d 224, 232-33 (3d Cir. 2008) (construing Twomblyin a civil rights context), and described how the Rule 12(b)(6) standard had changed in light of Twomblyand Iqbal as follows:

After Iqbal, it is clear that conclusory or "bare-bones" allegations will no longer survive a motion to dismiss: "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S. Ct. at 1949. To prevent dismissal, all civil complaints must now set out "sufficient factual matter" to show that the claim is facially plausible. This then "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1948. The Supreme Court's ruling in Iqbal emphasizes that a plaintiff must show that the allegations of his or her complaints are plausible. See Id. at 1949-50; see also Twombly, 505 U.S. at 555, & n. 3.

Fowler, 578 F.3d at 210.

Thereafter, in light of Iqbal, the United States Court of Appeals for the Third Circuit in Fowler v. UPMC Shadyside,578 F.3d 203 (3d Cir. 2009),set forth the following two-prong test to be applied by the district courts in deciding motions to dismiss for failure to state a claim:

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]. 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. at 1950. 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 inIqbal, "[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 entitled to relief.'" Iqbal, 129 S. Ct. at ...

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