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Vo v. Gilmore

United States District Court, W.D. Pennsylvania

July 24, 2019

THUY VO, Plaintiff,
v.
ROBERT GILMORE, MICHAEL ZAKEN, and STEPHEN DURCO, Defendants.

          Peter J. Phipps, District Judge.

          REPORT AND RECOMMENDATION Re: ECF No. 30

          MAUREEN P. KELLY UNITED-STATES MAGISTRATE JUDGE

         I. RECOMMENDATION

         Before the Court is a Motion to Dismiss and Brief in Support (collectively, the "Motion to Dismiss") filed by Defendants Robert Gilmore, Michael Zaken, and Stephen Durco. ECF Nos. 30 and 31. For the following reasons, it is respectfully recommended that Defendants' Motion to Dismiss be denied.

         II. REPORT

         A. FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff Thuy Vo ("Plaintiff) initiated this pro se prisoner civil rights action pursuant to 42 U.S.C. § 1983 on October 15, 2018. ECF Nos. 1, 8. Plaintiff is incarcerated at the State Correctional Institution at Greene ("SCI-Greene"), and he asserts claims against three SCI-Greene employees.

         In this action, Plaintiff claims that Defendants violated his Fourth Amendment right to bodily privacy by "implement[ing] a policy of video-recording strip searches of inmates going to, and coming from contact visits, and while using the bathroom." ECF No. 26 ¶ 8. Plaintiff alleges that, beginning in approximately March 2018, inmates have been "subjected to strip-searches with their genitals and private parts in full view of a 360 degree ceiling camera every time they wish to have contact visits, or use the bathroom during visits." Id. ¶ 12. These recorded images are then "digitally recorded and stored for an unknown amount of time," and are "viewed at all times by SCI-Greene's security staff," which includes prison officials not present during the search and individuals of the opposite sex. Id. ¶ 13. Plaintiff further claims that this practice is not implemented in accordance with Pennsylvania Department of Corrections policy, but is instead an SCI-Greene policy that Defendants implemented in retaliation for an inmate's prior assault of a prison official. Id. ¶¶ 8-9.

         Defendants initially moved to dismiss Plaintiffs Complaint on February 6, 2019. ECF No. 13. Plaintiff amended his Complaint on February 22, 2019, eliminating all claims other than his Fourth Amendment claim. ECF No. 26. In response, Defendants filed this renewed Motion to Dismiss Plaintiffs Amended Complaint on March 11, 2019. ECF No. 30. Plaintiff filed his brief in opposition on March 20, 2019. ECF No. 33. The Motion to Dismiss is now ripe for consideration.

         B. STANDARD OF REVIEW

         In assessing the sufficiency of the complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See Cal. Pub. Employees' Retirement Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004), citing Morse v. Lower Merion Sen. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Nor must the Court accept legal conclusions set forth as factual allegations. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, "[f]actual allegations must be enough to raise a right to relief above the speculative level," Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Indeed, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) where it does not allege "enough facts to state a claim to relief that is plausible on its face," id. at 570, or where the factual content does not allow the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009): see also Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, labels, conclusions, and "a formulaic recitation of the elements of a cause of action" do not suffice but, rather, the complaint "must allege facts suggestive of [the proscribed] conduct" and that are sufficient "to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]" of his claim) (internal quotations omitted).

         Pro 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 (1972). Because Plaintiff is proceeding pro se, the Court will liberally construe his Complaint and employ less stringent standards than when judging the work product of an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007).

         C. DISCUSSION

         Plaintiff asserts his claim pursuant to 42 U.S.C. § 1983 ("Section ...


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