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Thomas v. Harry

United States District Court, M.D. Pennsylvania

September 17, 2019

ROBERT THOMAS, Plaintiff,
v.
LAUREL HARRY, et al., Defendant.

          Rambo Judge

          REPORT AND RECOMMENDATION

          Martin C. Carlson United States Magistrate Judge

         I. Introduction

         One 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.

         We are 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.[1] Still other allegations made by Thomas, such as his claim that his personal information was disseminated without his consent, may support a colorable legal claim.

         The 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.

         II. Statement of Facts and of the Case

         Thomas' 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).

         Thereafter, 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).

         The 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.

         After a 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.

         III. Discussion

         A. Rule 12(b)(1) Standard

         Federal 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.”).

         Motions 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).

         In 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.

         B. Rule 12(b)(6) Standard

         The 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 ...


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