United States District Court, M.D. Pennsylvania
REPORT AND RECOMMENDATION
C. Carlson United States Magistrate Judge
challenge confronting courts involves construing pro
se pleadings. Oftentimes these pleadings are cast in
terms that demand a great deal of the reader, presenting
claims without any clear factual context and combining or
conflating legal claims, factual averments, with vague but
sincerely held beliefs. Occasionally, some of those beliefs
stray from the realm of factual to the world of the fanciful.
The task of the court is to winnow out legally meritless
claims while liberally construing a pro se pleading
and affording the pro se litigant every reasonable
opportunity to amend the complaint.
mindful of these challenges as we consider the instant case
which appears to combine colorable claims with averments
which are either fanciful or fail as a matter of law. This
case comes before us on a motion to dismiss filed by the
defendants. (Doc. 13). The plaintiff is Robert Thomas, an
inmate currently confined in the Pennsylvania Department of
Corrections (“DOC”) at the State Correctional
Institution at Camp Hill. Thomas filed this civil rights suit
against Laurel Harry, the Superintendent of SCI Camp Hill,
and John Wetzel, the Secretary of the DOC. Liberally
construed Thomas's allegations run a gamut of claims.
Some of the claims have the quality of things more imagined
than real, such as Thomas's allegations that the
Superintendent of SCI Camp Hill and the Secretary of the
Department of Corrections have stolen the plaintiff's
identity to speculate on the bond market and cast ballots in
various elections. Other allegations, like Thomas'
claimed potential violation of his right to privacy as a
result of a security breach into a data system used by the
DOC, are too speculative as currently pleaded to support a
claim. Still other allegations made by Thomas,
such as his claim that his personal information was
disseminated without his consent, may support a colorable
defendants have moved to dismiss the plaintiff's
complaint under Rules 12(b)(1) and 12(b)(6) of the Federal
Rules of Civil Procedure, arguing that Thomas does not have
standing to bring his claims, and alternatively, that his
complaint fails to state a claim. After a review of the
complaint, we agree that, as currently pleaded, some of
Thomas' allegations are too fanciful to proceed. Further,
Thomas has not pleaded a viable free-standing loss of privacy
claims where he has not alleged any well-pleaded facts
showing actual use or misuse of his persona information, and
thus we will recommend that these claims be dismissed without
prejudice. However, construing the pro se complaint
liberally, we conclude that Thomas has standing to assert his
claim of unlawful dissemination of his private information, a
colorable violation of the Fair Credit Reporting Act (FCRA)
and we will recommend that this claim be permitted to move
forward, but that Thomas be directed to file a more definite
statement regarding this particular claim.
Statement of Facts and of the Case
complaint alleges that he received a letter from Secretary
Wetzel on July 19, 2018, informing him that his personal
information-including his name, home address, social security
number, driver's license number, and medical records-was
accessed as a result of a security breach. (Doc. 1, at 2;
Doc. 1-1, at 2-3). The letter from Secretary Wetzel states
that a third-party vendor, Accreditation, Audit & Risk
Management Security, LCC (“AARMS”), which
provided the DOC with an online system to conduct, manage,
and track audits and inspections related to its accreditation
and internal operations, was the subject of an incident in
which an unknown third-party gained access to the AARMS
system. (Doc. 1-1, at 2). The letter states that “[t]he
contents of the exported data remains unknown at this time,
” but noted that the exported data may include the
inmate's name, address, social security number,
driver's license number, and/or medical records.
(Id.) The letter also noted that, while the contents
had not been identified, and while it was possible that none
of Thomas' information had been accessed, the DOC was
offering identity theft protection and monitoring services
for one year. (Id., at 2-3).
Thomas attempted to enroll in the identity theft protection
service offered by the DOC. However, On February 24, 2019, he
was informed that, since he did not have established credit,
the service was unable to activate monitoring. (Id.,
at 6). Thomas then filed the instant complaint against the
defendants on May 15, 2019. (Doc. 1). The gravamen of
Thomas' complaint is that the DOC was not permitted to
put his personal information into this system because he had
not given his consent, and that the DOC was using his
personal information to “make a profit” by
“selling” his information and “buying bonds
in [his] name.” (Id., at 3). His complaint
seeks declaratory and injunctive relief, as well as
compensatory and punitive damages, including the cost of
monitoring his credit for the next twenty-five years.
(Id., at 6).
defendants filed the instant motion to dismiss on July 15,
2019, challenging Thomas' standing to bring this suit and
arguing that his complaint fails to state a cognizable claim.
(Doc. 13). In sum, the defendants contend that Thomas'
allegations concerning his personal information do not
constitute an injury-in-fact, and thus Thomas lacks standing
to bring his claims. Moreover, the defendants argue that
Thomas' complaint fails to state a claim for a violation
by the defendants of his privacy rights.
review of the plaintiff's complaint, we agree with the
defendants that Thomas has not alleged a sufficient
injury-in-fact as it relates to his right-to-privacy claims.
However, recognizing that the plaintiff is proceeding pro
se, and that we must construe pro se complaints
liberally, we recommend that Thomas' claim concerning the
unauthorized dissemination of his personal information be
permitted to move forward.
Rule 12(b)(1) Standard
Rule of Civil Procedure 12(b)(1) provides that a court may
dismiss a complaint for “lack of subject matter
jurisdiction.” A motion to dismiss under Rule 12(b)(1)
thus challenges the power of the court to hear a case or
consider a claim. Petruska v. Gannon Univ., 462 F.3d
294, 302 (3d Cir. 2006). When faced with a 12(b)(1) motion,
the plaintiff has the burden to “convince the court it
has jurisdiction.” Gould Elecs., Inc. v. United
States, 220 F.3d 169, 178 (3d Cir. 2000); see also
Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d
Cir. 1991) (“When subject matter jurisdiction is
challenged under Rule 12(b)(1), the plaintiff must bear the
burden of persuasion.”).
under Rule 12(b)(1) come in two varieties. First, a
“facial” attack “contests the sufficiency
of the pleadings.” Common Cause of Pa. v.
Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009) (quoting
Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 187-88
(3d Cir. 2006)). Such a facial challenge “attacks the
complaint on its face without contesting its alleged facts,
is like a 12(b)(6) motion in requiring the court ‘to
consider the allegations of the complaint as true.'
” Hartig Drug Company, Inc. v. Senju Pharmaceutical
Co., Ltd., 836 F.3d 261, 268 (3d Cir. 2016). Thus, in
ruling on such a motion, the court assumes the truth of the
allegations in the complaint but must analyze the pleadings
to determine whether they state an action that comes within
the court's jurisdiction. United States ex rel.
Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d
Cir. 2007). A facial 12(b)(1) motion should be granted only
if it appears certain that the assertion of subject-matter
jurisdiction is improper. Kehr Packages, 926 F.2d at
1408-09; Empire Kosher Poultry, Inc. v. United Food &
Commercial Workers Health & Welfare Fund of Ne. Pa.,
285 F.Supp.2d 573, 577 (M.D. Pa. 2003).
contrast, a “factual” attack on subject-matter
jurisdiction asserts that although the pleadings facially
satisfy jurisdictional requirements, one or more allegations
in the complaint is untrue, which therefore causes the action
to fall outside the court's jurisdiction. Carpet
Group, Int'l v. Oriental Rug Imps. Ass'n, Inc.,
227 F.3d 62, 69 (3d Cir. 2000); Mortensen v. First Fed.
Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.
1977). In ruling on factual challenges, a court must consider
the merits of the disputed allegations, since “the
trial court's ... very power to hear the case” is
in dispute. Mortensen, 549 F.2d at 891.
Rule 12(b)(6) Standard
defendants have also asserted dismissal of this complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, “failure to state a claim upon which relief
can be granted.” With respect to this benchmark
standard for legal sufficiency of a complaint, the United
States Court of Appeals for the Third Circuit has ...