United States District Court, W.D. Pennsylvania
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, Chief Magistrate Judge.
Plaintiff Jacob Brosky ("Plaintiff"), is an inmate in the custody of the Pennsylvania Department of Corrections, and is currently incarcerated at the State Correctional Institution at Mercer. Plaintiff brings this civil rights action against Defendants Brian Miller, Warden ("Miller"), Mike Zavatta, Dep. Warden ("Zavada"),  Jack Henecks, Jr. ("Henecks") and County Dct. Carlissimo ("Carlissimo") (collectively, "Defendants"), alleging that, while Plaintiff was incarcerated in the Fayette County Prison, Defendants Miller and Zavada failed to protect him from being assaulted by other inmates in violation of his rights provided by the Eighth Amendment to the United States Constitution. Plaintiff also alleges that Defendants Henecks, the Fayette County District Attorney, and Carlissimo, a Fayette County Detective, discriminated against him and violated their duties as public officials by not criminally charging the inmates who assaulted him.
Presently before the Court is a Motion to Dismiss for Failure to State a Claim ("the Motion") submitted on behalf of Defendants. ECF No. 16. For the following reasons, it is respectfully recommended that the Motion be granted but that Plaintiff be given the opportunity to file an amended complaint solely with respect to his Eighth Amendment claims for failure to protect brought against Defendants Miller and Zavada.
A. FACTUAL AND PROCEDURAL BACKGROUND
According to the Complaint, on December 18, 2011, while Plaintiff was incarcerated at the Fayette County Prison, several inmates attacked him, stabbed him multiple times and broke his jaw. ECF No. 5, p. 2. Plaintiff alleges that although he informed "security" prior to the incident of the possibility that he would be attacked, he was not moved to another Block. Id. Plaintiff further alleges that despite the fact that there were several witnesses to the incident, Defendants District Attorney Henecks and Detective Carlissimo refused to bring charges against the inmates responsible for the attack. Id. at p. 6.
Plaintiff initiated this action on January 21, 2014, by filing a Motion for Leave to Proceed In Forma Pauperis, ECF No. 1, which was accompanied by the instant Complaint. ECF No. 1-1. Thereafter Plaintiff submitted the requisite filing fee of $400.00 on April 3, 2014, ECF No. 4, and the Complaint was filed on that same date. ECF No. 5. Defendants filed the instant Motion to Dismiss for Failure to State Claim on July 7, 2014, ECF No. 16, to which Plaintiff filed a Response on August 20, 2015. ECF No. 19. As such, the Motion is now ripe for review.
B. STANDARD OF REVIEW
In assessing the sufficiency of the complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See California Publ. Employees' 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. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id., citing Papasan v. Allain, 478 U.S. 265, 286 (1986). Indeed, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) where it does not allege "enough facts to state a claim to relief that is plausible on its face, " id. at 570, or where the factual content does not allow the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, "labels, conclusions, and a formulaic recitation of the elements of a cause of action" do not suffice but, rather, the complaint "must allege facts suggestive of [the proscribed] conduct" and that are sufficient "to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s] of his claim").
Although Plaintiff does not specifically mention the Civil Rights Act of 1964, 42 U.S.C. § 1983 ("Section 1983"), in his Complaint, he nevertheless seeks to vindicate his constitutional rights. Because Plaintiff does not have a cause of action directly under the United States Constitution, the Court shall construe his Complaint as one invoking the Court's jurisdiction pursuant to Section 1983. See Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006), citing Baker v. McCollan, 443 U.S. 137, 145 n.3 (1979) ("Section 1983 provides remedies for deprivations of rights established in the Constitution or federal laws. It does not, by its own terms, create substantive rights") (footnote omitted).
Section 1983 provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to ...