United States District Court, M.D. Pennsylvania
Christopher C. Conner, Chief Judge.
March 12, 2015, plaintiff Bruce Anthony Dillard
("Dillard"), an inmate formerly housed at the
Federal Correctional Institution, Schuylkill, Pennsylvania,
("FCI-Schuylkill"), commenced this
Bivens action in the United States District Court
for the Eastern District of Pennsylvania. (Doc. 1). The
action was transferred to this court on April 15, 2015. (Doc.
6). Dillard's complaint (Doc. 7) names the following
defendants: Bureau of Prisons ("BOP") Northeast
Regional Director Joseph L. Norwood; counselor G. Talamantes;
unit manager George Nye III; former lieutenant D. Lentini;
captain Hepner; case manager Brad Haupt; former associate
warden C. Entzel; former warden Jeff Krueger; warden Russell
A. Purdue; and lieutenant R. Raup. Presently ripe for
disposition is defendants' motion (Doc. 22) 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(b). For the reasons set forth below, the
court will grant the motion to dismiss, and grant Dillard the
opportunity to file an amended complaint.
Standard of Review
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 may 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 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."
Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d
Cir. 2008). In addition to reviewing the facts contained in
the complaint, the court 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); Pension Ben. Guar. Corp. v.
White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
notice and pleading rules require the complaint to provide
"the defendant fair notice of what the . . . claim is
and the grounds upon which it rests." Phillips,
515 F.3d at 232 (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). To test the sufficiency of the
complaint, the court must conduct a three-step inquiry.
See Santiago v. Warminster Twp., 629 F.3d 121,
130-31 (3d Cir. 2010). In the first step, "the court
must 'tak[e] note of the elements a plaintiff must plead
to state a claim.' " Id. at 130 (quoting
Ashcroft v. Iqbal 556 U.S. 662, 675 (2009)). Next,
the factual and legal elements of a claim should be
separated; well-pleaded facts must be accepted as true, while
mere legal conclusions may be disregarded. Id. at
131; see also Fowler v. UPMC Shadyside, 578 F.3d
203, 210-11 (3d Cir. 2009). Once the court isolates the
well-pleaded factual allegations, it must determine whether
they are sufficient to show a "plausible claim for
relief." Iqbal, 556 U.S. at 679 (citing
Twombly, 550 U.S. at 556); Twombly, 550
U.S. at 555 (requiring plaintiffs to allege facts sufficient
to "raise a right to relief above the speculative
level"). 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 556 U.S. at
should grant leave to amend before dismissing a curable
pleading in civil rights actions. See Fletcher-Harlee
Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247,
251 (3d Cir. 2007); Grayson v. Mayview State Hosp.,
293 F.3d 103, 108 (3d Cir. 2002). Courts need not grant leave
to amend sua sponte in dismissing non-civil rights
claims pursuant to Rule 12(b)(6), Fletcher-Harlee
Corp., 482 F.3d at 251, but leave is broadly encouraged
"when justice so requires." Fed.R.Civ.P. 15(a)(2).
Allegations of the Complaint
allegations of the complaint stem from Dillard's
incarceration at FCI-Schuylkill. (Doc. 7). Dillard alleges
that his due process rights were violated when he was placed
in the Special Housing Unit ("SHU"). (Id.
at 4). He further alleges that he was placed in a cell that
was "inadequate, inhumane and overcrowded, " and
was subjected to retaliation for filing grievances.
to Dillard, defendant Talamantes placed him in a ten-man cell
on two occasions-July 9, 2012 and August 29, 2012-and he was
housed in a ten-man cell for a total of approximately nine
months. (Doc. 7 ¶¶ 2-3, 5). Dillard asserts that
the cell was overcrowded, unsanitary, had inadequate cleaning
supplies, and was not conducive to a good night's sleep.
(Id. at ¶¶ 2, 5-7). He also asserts that
in September 2012, Talamantes moved Dillard's legal
property from a storage area in retaliation for filing a
grievance. (Id. at 4).
2013, Talamantes purportedly denied Dillard's request for
a new cellmate or cell change, and told other inmates that
Dillard wanted his cellmate to be moved, resulting in rumors
that Dillard was "on snitch time." (Id. at
¶¶ 8-9). Dillard avers that he spoke to defendant
Entzel about a cell change in January 2014, but Entzel failed
to intervene in his request. (Id. ¶ 16).
alleges that defendant Nye also told inmates that Dillard
wanted his cellmate moved, again causing rumors that Dillard
was "on snitch time." (Id. ¶ 9).
Dillard further alleges that, on February 7, 2014, Nye
ordered him to dismiss his grievance regarding a cell change
and reassigned him to an eight-man cell. (Id.)
According to Dillard, defendant Krueger ultimately responded
to his grievance regarding placement in the ten-man cell,
explaining that Dillard was placed in the cell for safety
reasons. (Id. ¶ 18). Thereafter, Nye allegedly
removed Dillard's personal property from the eight-man
cell, stored it inside his office, and ignored Dillard's
request for return of his property. (Id. at ¶
August 20, 2014, defendant Lentini allegedly ordered that
Dillard be placed in the SHU. (Id. ¶ 11).
Dillard suggests that his due process rights were violated
because he was held in the SHU for 120 days. (Id.)
Dillard asserts that defendant Kepner agreed to place him in
the SHU as a supposed safety precaution. (Id. ¶
12). Dillard claims that his safety was not at risk and that
Kepner lied about the reasons for his placement in the SHU.
(Id.) Dillard further claims that Entzel failed to
respond to his concerns about his placement in the SHU, as
well as his complaints regarding denial of writing paper and
pencils. (Id. at ¶¶ 16-17).
approximately the same time, defendant Haupt allegedly
threatened to issue a false disciplinary write-up against
Dillard in the presence of other inmates. (Id.
¶ 14). Dillard alleges that Haupt failed to respond to
his request for a copy of his trust fund account, denying him
access to the courts. (Id.) Dillard also alleges
that Haupt falsified his custody scorings sometime in 2013.
(Id. at ¶ 15). He asserts that Haupt was fueled
by retaliatory motives and intended to cause Dillard
"tremendous hardship and pain." (Id.)
2014, Dillard twice requested documents from defendant Raup
concerning his placement. (Id. ¶ 13). Dillard
avers that Raup failed to respond to the requests and
retaliated against him for filing grievances. (Id.)
On October 20, 2014 and November 16, 2014, Dillard submitted
two requests for administrative remedies to the regional
office. (Id. ¶¶ 20-21). Dillard contends
that Kepner denied him phone privileges and access to the
courts on November 18, 2014, in alleged retaliation for
filing grievances. (Id. at ¶ 13). On December
10, 2014, Dillard purportedly handed a request to defendant
Purdue for placement back into general population.
(Id. ¶ 19). Dillard claims that Purdue failed
to respond to his request. (Id.) On December 22,
2014, defendant Norwood rejected Dillard's October and
November requests for administrative remedies because they
were not sensitive issues. (Id. ¶ 21).
result of defendants' alleged actions, Dillard asserts
that he suffered "mental, emotional and physical harm,
" though he suffered "no medical injuries."
(Id. at 4). For relief, in addition to an award of
damages, costs, and fees, Dillard requests that defendants
"be demoted in pay and rank" and that the
"living conditions inside of FCI-Schuylkill's
Ten-Man cells and Special Housing Unit. . . be
scrutinized." (Id. at 5).
Bivens action is the federal counterpart to an
action filed under 42 U.S.C. § 1983. See Paton v.
LaPrade, 524 F.2d 82 (3d Cir. 1975); Farmer v.
Carlson, 685 F.Supp. 1335, 1338 (M.D. Pa. 1988). Section
1983 of Title 42 of the United States Code offers private
citizens a cause of action for violations of federal law by
state officials. See 42 U.S.C. § 1983. The
statute provides, in pertinent part, as follows:
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 the party injured in an action
at law, suit in equity, or other proper proceeding for
redress. . . .
Id.; see also Gonzaga Univ. v. Doe, 536
U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95 F.3d
1199, 1204 (3d Cir. 1996). "To state a claim under
§ 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States,
and must show that the alleged deprivation was committed by a
person acting ...