United States District Court, W.D. Pennsylvania
DAVID V. JORDAN, Plaintiff,
UNIT MANAGER BERTOLINI, et al, Defendants.
MAGISTRATE JUDGE'S REPORT AND
PARADISE BAXTER United States Magistrate Judge
respectfully recommended that the motion to dismiss filed by
Defendants Bertolini, Friedline, Marino, Anderson, and
Baummer [ECF No. 28] be denied.
Relevant Procedural History
December 28, 2015, Plaintiff David Jordan, an inmate
incarcerated at the State Correctional Institution at Forest
(“SCI-Forest”), initiated this civil rights
action by filing a pro se complaint pursuant to 42
U.S.C. § 1983. Named as Defendants to this action are:
Unit Manager Bertolini, Lieutenant Baummer, and Correctional
Officers Friedline, Marino, and Anderson. Plaintiff alleges
Defendants retaliated against him after Plaintiff exercised
his First Amendment rights to file lawsuits and grievances.
March 22, 2016 and April 13, 2016, Defendants filed a motion
to dismiss [ECF No. 15; ECF No. 19], and both times,
Plaintiff responded with a proposed Amended Complaint, which
were deemed filed. ECF No. 18; ECF No. 27.
in response to Plaintiff's Second Amended Complaint,
Defendants have filed a motion to dismiss arguing, inter
alia, that Plaintiff fails to state a claim of
retaliation. ECF No. 28. Thereafter, Plaintiff filed an
“Answer to the Defendant's Motion to Dismiss
Plaintiff's Second Amended Complaint, [ECF No. 37] as
well as a “Brief in opposition to Defendant's
Motion to Dismiss the Second Amended Complaint, ” [ECF
No. 38] which this Court finds as Plaintiff's collective
opposition brief. Defendants have filed a reply brief. ECF
No. 40. This motion is fully briefed and is ripe for
disposition by this Court.
Standards of Review
Pro Se Litigants
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.
Motion to dismiss pursuant to Rule 12(b)(6)
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, 556 U.S. 662 (2009)
(specifically applying Twombly analysis beyond the
context of the Sherman Act).
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) (“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 § 1216, pp. ...