United States District Court, M.D. Pennsylvania
D. Mariani United States District Judge
Dennis Berard ("Berard"), an inmate formerly housed
at the Satellite Prison Camp at Lewisburg, Pennsylvania,
commenced this Bivens28 U.S.C. § 1331, civil
rights action on December 28, 2016. (Doc. 1). Berard alleges
that his due process rights were violated in the context of a
prison disciplinary hearing. (Id. at ¶¶
7-19). Named as Defendants are Timothy Crawford and Angelo
Jordan. (Id. at ¶¶ 5-6). Presently pending
before the court is Defendants' motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc.
8). For the reasons set forth below, the motion will be
Motion to Dismiss Standard of Review
complaint must be dismissed under Fed.R.Civ.P. 12(b)(6), if
it does not allege "enough facts to state a claim to
relief that is plausible on its face." Beil Atl.
Corp. v. Twombiy, 550 U.S. 544, 570, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007). The plaintiff must aver "factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129
S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
a complaint 'does not need detailed factual allegations,
... a formulaic recitation of the elements of a cause of
action will not do.'" DelRio-Mocci v. Connolly
Prop. Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing
Twombiy, 550 U.S. at 555). In other words,
"[f]actual allegations must be enough to raise a right
to relief above the speculative level." Covington v.
Int'l Ass'n of Approved Basketball Officials,
710 F.3d 114, 118 (3d Cir. 2013) (internal citations and
quotation marks omitted). A court "take[s] as true all
the factual allegations in the Complaint and the reasonable
inferences that can be drawn from those facts, but...
disregard[s] legal conclusions and threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements." Ethypharm S.A. France v. Abbott
Laboratories, 707 F.3d 223, 231, n.14 (3d Cir. 2013)
(internal citations and quotation marks omitted).
Twombly and Iqbal require [a district
court] to take the following three steps to determine the
sufficiency of a complaint: 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).
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged - but it has not show[n] - that the pleader is
entitled to relief." Iqbal, 556 U.S. at 679
(internal citations and quotation marks omitted). This
"plausibility" determination will be a
"context-specific task that requires the reviewing court
to draw on its judicial experience and common sense."
even "if a complaint is subject to Rule 12(b)(6)
dismissal, a district court must permit a curative amendment
unless such an amendment would be inequitable or
futile." Phillips v. Cnty. of Allegheny, 515
F.3d 224, 245 (3d Cir. 2008).
[E]ven when plaintiff does not seek leave to amend his
complaint after a defendant moves to dismiss it, unless the
district court finds that amendment would be inequitable or
futile, the court must inform the plaintiff that he or she
has leave to amend the complaint within a set period of time.
Allegations of the Complaint
2014, Berard was served with incident report number 2597656,
charging him with a code 199 violation, most like codes 111,
203, and 204, for engaging in conduct which disrupts the
security of a BOP facility, most like introduction,
extortion, blackmail, and threatening another with bodily
harm. (Doc. 1, ¶¶ 7-8; Doc. 9-1, p.
19, Incident Report).
3, 2014, Berard appeared before the Unit Discipline Committee
("UDC"). (Doc. 1, ¶ 9; Doc. 9-1, p. 20). The
UDC determined that Berard violated codes 199, 203, and 204.
(Id.). The UDC referred the incident report to the