United States District Court, M.D. Pennsylvania
A. RICHARD CAPUTO, District Judge.
This civil action is filed by pro se plaintiff, Fakeria Phillips, under Bivens  and the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346, et seq. Mr. Phillips alleges his constitutional rights were violated while incarcerated at the United States Penitentiary at Lewisburg (USP-Lewisburg), in Lewisburg, Pennsylvania. Specifically he alleges defendants were deliberately indifferent to his asthma condition by not timely providing him with a refill of his albuterol inhaler. Pending before the court is a motion to dismiss and motion for summary judgment filed by the United States of America, the Federal Bureau of Prisons (BOP), Physician Assistant (PA) Alama, PA Francis Fasciana, Clinical Director Kevin Pigos, and Health Services Administrator (HSA) Steve Brown. For the reasons that follow, the defendants' dispositive motion will be granted and the Complaint will be dismissed without leave to amend.
II. Standards of Review
A. Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. "The test in reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6) is whether, under any plausible' reading of the pleadings, the plaintiff would be entitled to relief." Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764 (3d Cir. 2013)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007)). Under Rule 12(b)(6), the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)(quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). While a complaint need only contain "a short and plain statement of the claim, " Fed.R.Civ.P. 8(a)(2), and detailed factual allegations are not required, Twombly, 550 U.S. at 555, 127 S.Ct. at 1964, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. at 1974. "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." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)(quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965). "[L]abels and conclusions" are not enough, and a court is "not bound to accept as true a legal conclusion couched as a factual allegation.'" Twombly, 550 U.S. at 555, 127 S.Ct. at 1965 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 2944, 92 L.Ed.2d 209 (1986)).
"Pro se complaints are liberally construed' and held to less stringent standards than formal pleadings drafted by lawyers[.]'" Jackson v. Div. of Developmental Disabilities, 2010 WL 3636748, at *2 n.3 (3d Cir. 2010) (per curiam) (nonprecedential) (quoted case omitted). Nonetheless, the complaint still "must contain allegations permitting the reasonable inference that the defendant is liable for the misconduct alleged.'" Id. (quoted case omitted).
The Third Circuit has described the Rule 12(b)(6) inquiry as a three-part process:
First, the court must take 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.
Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013) (quoted cases omitted).
Pro se litigants are to be granted leave to file a curative amended complaint even when a plaintiff does not seek leave to amend, unless such an amendment would be inequitable or futile. See DelRio-Mocci v. Connolly Properties Inc., 672 F.3d 241, 251 (3d Cir. 2012).
B. Motion for Summary Judgment
Under Fed.R.Civ.P. 56, summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In making this evaluation, the court must determine "whether the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and whether the moving party is therefore entitled to judgment as a matter of law." MacFarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 271 (3d Cir. 2012)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to nonmoving party. Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007).
"[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510). "[S]ummary judgment is essentially put up or shut up' time for the non-moving party: the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." Berckeley Inv. Group, Ltd. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006). The moving party has the burden of showing the absence of a genuine issue of material fact, but the non-moving party must present affirmative evidence from which a jury might return a verdict in the non-moving party's favor. Liberty Lobby, 477 U.S. at 256-57, 106 S.Ct. at 2514. "The non-moving party cannot rest on mere pleadings or allegations, " El v. Southeastern Pa. Transp. Auth., 479 F.3d 232, 238 (3d Cir. 2007), but "must set forth specific facts showing that there is a genuine issue for trial." Saldana v. Kmart Corp., 260 F.3d 228, 231-232 (3d Cir. 2001). Allegations made without evidentiary support may be disregarded. Jones v. UPS, 214 F.3d 402, 407 (3d Cir. 2000). "Conclusory, self-serving affidavits are insufficient to withstand a motion for summary judgment." Blair v. Scott Specialty Gases, 283 F.3d 595, 608 (3d Cir. ...