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Bussinger v. Beggs

United States District Court, W.D. Pennsylvania

March 25, 2014

GEORGE BUSSINGER, Plaintiff,
v.
BRIAN BEGGS, et al, Defendants.

MEMORANDUM OPINION

SUSAN PARADISE BAXTER, Magistrate Judge.[1]

A. Relevant Procedural History

The operative complaint in this action is the Second Amended Complaint (ECF No. 53), wherein Plaintiff raises claims against multiple Defendants[2], who are employees of the Department of Corrections at three separate prisons (SCI-Forest, SCI-Somerset and SCI-Laurel Highlands).[3] Plaintiff alleges that these Defendants have engaged in a campaign of retaliatory harassment against him. Plaintiff alleges that this campaign spanned all three correctional institutions, and "included threats, intimidation, facility transfers, fictitious misconducts, and culminating with the outright stoppage of all of Plaintiff's incoming and outgoing mail, including legal mail." ECF No. 53, page 2. Plaintiff makes separate claims based upon individual incidents and also alleges that each incident is part of the campaign of retaliation. For example, Plaintiff alleges that fabricated misconducts violate his due process rights, as well as his right to be free from retaliation.

Defendants have filed a partial motion to dismiss[4] [ECF No. 56] and Plaintiff has filed an opposition brief [ECF Nos. 61, 63]. Defendants have not filed any reply to Plaintiff's opposition brief. The issues are ripe for consideration by this Court.

B. Standards of Review

1) Pro Se Litigants

Pro se pleadings, "however inartfully pleaded, " must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner , 404 U.S. 519, 520-521 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant's unfamiliarity with pleading requirements. Boag v. MacDougall , 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley , 141 F.2d 552, 555 (3d Cir. 1969)(petition prepared by a prisoner may be inartfully drawn and should be read "with a measure of tolerance"); Smith v. U.S. District Court , 956 F.2d 295 (D.C.Cir. 1992); Freeman v. Dep't of Corrections , 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, during the initial stages of litigation, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman , 116 F.3d 83 (3d Cir. 1997). See, e.g., Nami v. Fauver , 82 F.3d 63, 65 (3d Cir. 1996)(discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Co. , 906 F.2d 100, 103 (3d Cir. 1990)(same). Because Plaintiff is a pro se litigant, this Court may consider facts and make inferences where it is appropriate.

2) Motion to dismiss pursuant to Rule 12(b)(6)

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the complaint must be accepted as true. Erickson v. Pardus , 551 U.S. 89, 93-94 (2007). 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." Twombly, 550 U.S. at 570 (rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson , 355 U.S. 41 (1957)). See also Ashcroft v. Iqbal , 559 U.S. 662 (2009) (specifically applying Twombly analysis beyond the context of the Sherman Act).

A Court need not accept inferences drawn by a 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 Sch. Dist. , 132 F.3d 902, 906 (3d Cir. 1997). Nor must the Court accept legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 555, citing Papasan v. Allain , 478 U.S. 265, 286 (1986). See also McTernan v. City of York, Pennsylvania , 577 F.3d 521, 531 (3d Cir. 2009) quoting Iqbal, 556 U.S. at 678 ("The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions."). A plaintiff's factual allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 556, citing 5 C. Wright & A. Miller, Federal Practice and Procedure ยง 1216, pp. 235-236 (3d ed. 2004). Although the United States Supreme Court does "not require heightened fact pleading of specifics, [the Court does require] enough facts to state a claim to relief that is plausible on its face." Id. at 570.

In other words, at the motion to dismiss stage, a plaintiff is "required to make a showing' rather than a blanket assertion of an entitlement to relief." Smith v. Sullivan , 2008 WL 482469, at *1 (D. Del.) quoting Phillips v. County of Allegheny , 515 F.3d 224, 231 (3d Cir. 2008). "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 n.3.

The Third Circuit has expounded on the Twombly/Iqbal line of cases:

To determine the sufficiency of a complaint under Twombly and Iqbal, we must take the following three steps:
First, the court must tak[e] note of the elements a plaintiff must plead to state a claim.' Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth.' Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.'

Burtch v. Milberg Factors, Inc. , 662 F.3d 212, 221 (3d Cir. 2011) quoting Santiago v. Warminster Twp. , 629 F.3d 121, 130 (3d Cir. 2010).

Although Defendants have attached exhibits to their filings, the use of these exhibits by this Court does not convert Defendants' motion to dismiss into a motion for summary judgment. Pryor v. National Collegiate Athletic Ass'n , 288 F.3d 548, 560 (3d Cir. 2002) ("... certain matters outside the body of the complaint itself, such as exhibits attached to the complaint and facts of which the court will take judicial notice, will not trigger the conversion of an Federal Rule of Civil Procedure 12(b)(6) motion to dismiss to an Federal Rule of Civil Procedure 56 motion for summary judgment."). See also Ickes v. Flanagan, 2008 WL 859183, at *1 (W.D. Pa.) ("[I]n addition to the allegations contained in the pleadings, the Court may also review matters of public record, exhibits attached to the complaint and items appearing in the record of the case.")

C. Relevant Factual History

Defendants have provided the dockets from the Pennsylvania Commonwealth and Supreme Courts involving the underlying case.[5] These dockets are incomplete as the last entry is dated March 1, 2012. Plaintiff filed a Petition for Review in the Commonwealth Court on May 18, 2010, challenging the Department of Corrections' denial of Plaintiff's right to send or receive mail due to his refusal to execute a Department of Corrections' Power of Attorney form DC-155, and naming the Department of Corrections and many of its employees as Respondents to that action. ECF No. 41-2, page 5. By Memorandum Opinion dated August 24, 2010, Plaintiff's request for preliminary injunction was granted in that the Commonwealth Respondents were enjoined from prohibiting Plaintiff from corresponding by mail with his attorney, the courts of the Commonwealth, and the federal courts.

By Opinion filed August 9, 2011, Plaintiff's motion for summary judgment was granted in part as follows: "1) Department of Corrections' policy and practice, as reflected in DC-155 and as applied to Plaintiff, to revoke all mail privileges where an inmate refuses to grant Department of Corrections authority to endorse checks and deposit the same in his inmate account, unreasonably interferes with rights afforded to Plaintiff under the First Amendment to the U.S. Constitution; and 2) the Department of Corrections is permanently enjoined from enforcing this policy and practice against Plaintiff." ECF No 41-2, page 12.

A status conference was scheduled and the parties were directed that "counsel shall be prepared to address what, if any, merit claims remain for the Court's disposition following the filing of this Court's Opinion and Order this same date, addressing the parties' cross-motions for partial summary judgment." Id.

Thereafter, Plaintiff filed a motion for attorney's fees. By Order dated October 26, 2011, the Court indicated that "the matter [has] been fully resolved on the merits, " leaving only the Plaintiff's motion for costs and attorney's fees. Id. at 14. On November 22, 2011, the Department of ...


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