United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION 
PARADISE BAXTER United States Magistrate Judge
Relevant Procedural and Factual History
December 14, 2015, Plaintiff Kenneth Boulware, an inmate
formerly incarcerated at the State Correctional Institution
at Forest in Marienville, Pennsylvania
("SCI-Forest"),  initiated this action by filing a
pro se civil rights complaint pursuant to 42 U.S.C.
§ 1983, against the following named Defendants, all of
whom were staff members at SCI-Forest at the time Plaintiff
filed this action: Deputy Overmyer ("Overmyer");
Deputy Oveborlander ("Oveborlander"); Major Ennis
("Ennis"); Lt. Haggerty ("Haggerty"); Lt.
Davis ("Davis"); Lt. Dickey ("Dickey");
Lt. Murin ("Murin"); Sgt. Cochren
("Cochren"); Sgt. Anthony ("Anthony");
C.O. Mulloly ("Mulloly"); C.O. Drayer
("Drayer"); Dr. Simon ("Simon"); Nurse
Hill ("Hill"); and C.O. Baumeratz
not entirely clear from Plaintiff's narrative complaint,
it appears Plaintiff is alleging the following claims: (1) a
Fourteenth Amendment due process claim arising from the theft
of a television he purchased for his cell by another inmate,
which occurred on December 6, 2014, during recreation time
when the cell doors allegedly should have been closed (ECF
No. 3, Complaint, at pp. 5, 10-12); (2) An Eighth Amendment
excessive force claim against Defendants Drayer, Mulloly,
Cochren, Baumeratz, and Murin arising from an incident that
occurred on November 11, 2015 (Id. at p. 6); (3) An
Eighth Amendment failure to protect claim alleging that
Defendants failed to prevent him from being raped by another
inmate on November 18, 2015, after he had informed them of
threats he was receiving from other inmates (Id. at
pp. 9, 13); (4) An Eighth Amendment claim of deliberate
indifference to serious medical needs alleging inadequate
medical and/or psychological care (Id. at pp. 6, 12,
14, 16); and (5) An Eighth Amendment conditions of
confinement claim related to the denial of
"several" showers and meals, and continual
harassment by correctional officers (Id. at 12).
16, 2016, Defendants filed a partial answer to
Plaintiff's complaint [ECF No. 38], and a partial motion
to dismiss Plaintiff's Fourteenth Amendment due process
claim only [ECF No. 37]. Plaintiff has since filed a response
to Defendants' partial motion to dismiss [ECF No. 41].
That motion is now ripe for consideration.
Standards of Review
Motion to Dismiss
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.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). See also Ashcroft
v. Iqbal, 556 U.S. 662, 678 (May 18, 2009) (specifically
applying Twombly analysis beyond the context of the
Court need not accept inferences drawn by 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 School 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. 235-36 (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.
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.
February 19, 2008) 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.
Third Circuit subsequently 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 ...