United States District Court, M.D. Pennsylvania
D. Mariani, United States District Judge.
Jeremy Pinson ("Pinson"), a federal inmate who is
currently housed at the United States Penitentiary in Tucson,
Arizona, initiated this action pursuant to
Bivens28 U.S.C. § 1331, and the Federal Tort
Claims Act ("FTCA"). The matter is proceeding via a
second amended complaint. (Doc. 51). Named as Defendants are
Warden L. Oddo, Warden T. Cozza-Rhodes, Chief of the
Designation and Sentence Computation Center J. Santana,
Special Investigative Services Lieutenant S. Valencik,
Special Investigative Agent ("SIA") C. Heath, the
Bureau of Prisons ("BOP"), and the United States of
pending before the Court is Defendants' motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b), and for
summary judgment pursuant to Federal Rule of Civil Procedure
(Doc. 64). The motion is ripe for resolution and, for the
reasons set forth below, the Court will grant Defendants'
Summary Judgment Standard of Review
summary adjudication, the court may dispose of those claims
that do not present a "genuine dispute as to any
material fact." Fed.R.Civ.P. 56(a). "As to
materiality, ... [o]nly disputes over facts that might affect
the outcome of the suit under the governing law will properly
preclude the entry of summary judgment." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
party moving for summary judgment bears the burden of showing
the absence of a genuine issue as to any material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has
been made, the non-moving party must offer specific facts
contradicting those averred by the movant to establish a
genuine issue of material fact. Lujan v. Nat'l
Wildlife Fed'n, 497 U.S. 871, 888 (1990). Therefore,
the non-moving party may not oppose summary judgment simply
on the basis of the pleadings, or on conclusory statements
that a factual issue exists. Anderson, 477 U.S. at
248. "A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by citing to
particular parts of materials in the record ... or showing
that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact."
Fed.R.Civ.P. 56(c)(1)(A)-(B). In evaluating whether summary
judgment should be granted, "[t]he court need consider
only the cited materials, but it may consider other materials
in the record." Fed.R.Civ.P. 56(c)(3). "Inferences
should be drawn in the light most favorable to the non-moving
party, and where the non-moving party's evidence
contradicts the movant's, then the non-movant's must
be taken as true." Big Apple BMW, Inc. v. BMW of N.
Am., Inc., 974 F.2d 1358,1363 (3d Cir.1992),
cert, denied 507 U.S. 912 (1993).
"facts must be viewed in the light most favorable to the
nonmoving party only if there is a 'genuine' dispute
as to those facts." Scott v. Harris, 550 U.S.
372, 380, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007). If a
party has carried its burden under the summary judgment rule,
its opponent must do more than simply show that there is some
metaphysical doubt as to the material facts. Where the record
taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no genuine issue for
trial. The mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact. When
opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for summary
Id. (internal quotations, citations, and alterations
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." Bell Atl.
Corp. v. Twombly, 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 Twombly, 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.
Statement of Undisputed Facts
Background Facts Regarding Pinson
is a federal inmate who was previously housed at the United
States Penitentiary in Florence, Colorado
("USP-Florence") from April 2, 2015 through March
8, 2016. (Doc. 66, Statement of Material Facts, ¶ 1). On
March 8, 2016, Pinson was transferred to the United States
Penitentiary, Allenwood, in White Deer, Pennsylvania
("USP-Allenwood"). (Id. at ¶ 2).
Pinson was designated to USP-Allenwood from March 10, 2016 to
July 18, 2016. (Id. at ¶ 3). On July 25, 2016,
Pinson arrived at the United States Penitentiary in Terre
Haute, Indiana ("USP-Terre Haute"), where she
remained until February 15, 2018. (Id. at ¶ 4).
On February 15, 2018, Pinson was transferred to USP-Tucson.
(Id. at ¶ 5).
Facts Regarding Defendants Cozza-Rhodes and Santana
Cozza-Rhodes was the Warden at USP-Florence at the time of
the alleged events in Pinson's second amended complaint.
(Id. at ¶ 6). Cozza-Rhodes' business office
is located in Aurora, Colorado. (Id. at ¶ 7).
Cozza-Rhodes does not reside, ...