United States District Court, M.D. Pennsylvania
D. Mariani United States District Judge
March 20, 2019, Plaintiff Daryl Locke ("Plaintiff'),
an inmate currently confined in the Smithfield State
Correctional Institution, Huntingdon, Pennsylvania
("SCI-Smithfield"), filed the above-captioned
action pursuant to 42 U.S.C. § 1983 and the Fair Credit
Report Act ("FCRA"). The named Defendants are John
Wetzel ("Wetzel"), Mr. Dribelbris
("Dreibelbis"), Mr. Swisher ("Swisher"),
Debra Jadlocks ("Jadlocki"),  Ms. P. Luther
("Luther"), and Mr. Rupert ("Rupert").
(Doc. 1.) Presently before the Court is Defendants'
motion to dismiss Plaintiffs complaint. (Doc. 11.) The motion
if fully briefed and is ripe for disposition. For the reasons
set forth below, Defendants' motion to dismiss will be
alleges that at some unknown time, he "read in the
newspaper that on April 3, 2018, a company named
Accreditation Audit Risk-Management Security, LLC (AARMS) had
suffered a data breach, while in possession of the private
information of 13, 100 inmates, 680 employees and 11 others
within the State Department of Corrections (DOC)." (Doc.
1 at 7.) AARMS notified the DOC of the data breach on April
9, 2018. Id. Defendant Wetzel, however, did not mail
notice of the data breach to Plaintiff until July 19, 2018,
and Plaintiff received the notice on July 24, 2018.
maintains that the DOC "never informed [him] that they
would be distributing his private information (Full Name,
Home Address, Social Security Number and Medical Records) to
a third party, which is contracted vendor of the DOC."
Id. He alleges that the DOC "failed to obtain a
signed release form (DC-108 form) from [him] which would have
authorized the release of his private information to a third
party." Id. Plaintiff asserts that Defendants,
all of whom are supervisors of various departments within the
DOC, disseminated his private information without his
consent. Id. at 2-3, 8. He further maintains that
Defendant Wetzel's failure to promptly notify him of the
data breach "gave ample amount of time for [his] private
information to be sold/misused." Id. at 8.
Plaintiff alleges that because of the data breach and the
delay in notification, "he is 9.5 times more likely than
the public to suffer identity fraud or theft."
Id. Based on these allegations, Plaintiff asserts
that Defendants violated his "civil rights to
privacy," his rights under the FCRA, and "numerous
State [p]rivacy [l]aws and DOC policy." Id. at
3, 9. He seeks declaratory and injunctive relief, as well as
damages. Id. at 4, 10.
Motion to Dismiss Pursuant to Federal Rule of Civil Procedure
move for the dismissal of Plaintiff's complaint pursuant
to Rule 12(b)(1) of the Federal Rules of Civil Procedure,
asserting that the Court lacks subject-matter jurisdiction
over Plaintiffs claims because he lacks standing to pursue
them. (Doc. 12 at 4-7.) A motion to dismiss a case for lack
of standing is properly brought under Rule 12(b)(1) because
standing is a jurisdictional matter. See Ballentine v.
United States, 486 F.3d 806, 810 (3d Cir. 2007). When
evaluating a motion brought under Rule 12(b)(1), a court must
first determine whether the movant presents a facial or
factual attack. See In re Schering Plough Corp.
Intron/Temodar Consumer Class Action, 678 F.3d 235, 243
(3d Cir. 2012). A facial challenge contests the sufficiency
of the pleadings, meaning a court must consider the
allegations of the complaint in the light most favorable to
the plaintiff. See Gould Elec, Inc. v. United
States, 220 F.3d 169, 176 (3d Cir. 2000). By contrast,
when reviewing a factual attack, a court may consider
evidence outside the pleadings. See id.
Court construes Defendants' standing challenge to be a
facial attack given that they provide no evidence outside the
pleadings and that they maintain that Plaintiff has
"fail[ed] to allege an actual or imminent injury"
to establish standing. (Doc. 12 at 6.) Pursuant to Rule
12(b)(1), the Court must accept as true all material
allegations set forth in the complaint and must construe
those facts in favor of the non-moving party. See
Ballentine, 486 F.3d at 810. When evaluating whether a
complaint adequately pleads the elements of standing, a court
applies the same standard of review as on a Rule 12(b)(6)
motion to dismiss for failure to state a claim. See In re
Schering Plough, 678 F.3d at 243. Accordingly, a
plaintiff must assert facts that affirmatively and plausibly
suggest that the pleader has the rights he claims (here, the
right to jurisdiction), rather than facts that are merely
consistent with such a right. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 557 (2007).
establish standing, a plaintiff must first allege "an
'injury in fact,' or an 'invasion of a legally
protected interest' that is 'concrete and
particularized.'" See In re Horizon Healthcare
Servs. Inc. Data Breach Litig. ('In re
Horizon"), 846 F.3d 625, 633 (3d Cir. 2017)
(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555,
560 (1992). Second, the plaintiff must establish a
"causal connection between the injury and the conduct
complained of." See Lujan, 504 U.S. at 560.
Finally, the plaintiff must allege the likelihood "that
the injury will be redressed by a favorable decision."
See Id. at 561. "In the context of a motion to
dismiss, [the United States Court of Appeals for the Third
Circuit has] held that the [i]njury-in-fact element is not
Mount Everest. The contours of the injury-in-fact
requirement, while not precisely defined, are very generous,
requiring only that [the] claimant allege some specific,
identifiable trifle of injury." Blunt v. Lower
Merion Sch. Dist, 767 F.3d 247, 278 (3d Cir. 2014).
"At the pleading stage, general factual allegations of
injury resulting from the defendant's conduct may
suffice, for on a motion to dismiss [courts] presum[e] that
general allegations embrace those specific facts that are
necessary to support the claim." Lujan, 504
U.S. at 561.
Motion to Dismiss Pursuant to Federal Rule of Civil Procedure
also move for the dismissal of Plaintiffs complaint pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure for
failure to state a claim. (Doc. 12 at 7-8.) Federal notice
and pleading rules require the complaint to provide the
defendant notice of the claim and the grounds upon which it
rests. See Phillips v. Cty. of Allegheny, 515 F.3d
224, 232 (3d Cir. 2008). The plaintiff must present facts
that, accepted as true, demonstrate a plausible right to
relief. See Fed. R. Civ. P. 8(a). Although Federal
Rule of Civil Procedure 8(a)(2) requires "only a short
and plain statement of the claim showing that the pleader is
entitled to relief," a complaint may nevertheless be
dismissed under Federal Rule of Civil Procedure 12(b)(6) for
its "failure to state a claim upon which relief can be
granted." See Fed. R. Civ. P. 12(b)(6).
ruling on a motion to dismiss under Rule 12(b)(6), the court
accepts as true all factual allegations in the complaint and
all reasonable inferences that can be drawn from them, viewed
in the light most favorable to the plaintiff. See
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); In re
Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d
Cir. 2010). To prevent dismissal, all civil complaints must
set out "sufficient factual matter" to show that
their claims are facially plausible. See Iqbal, 556
U.S. at 678; Fowler v. UPMC Shadyside, 578 F.3d 203,
210 (3d Cir. 2009). The plausibility standard requires more
than a mere possibility that the defendant is liable for the
alleged misconduct: "[W]here 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.'" See Iqbal, 556 U.S. at 679
(citing Fed.R.Civ.P. 8(a)(2)).
the Third Circuit has identified the following steps that a
district court must take when reviewing a 12(b)(6) motion:
(1) identify the elements that a plaintiff must plead to
state a claim; (2) identify any conclusory allegations
contained in the complaint that are "not entitled"
to the assumption of truth; and (3) determine whether any
"well-pleaded factual allegations" contained in the
complaint "plausibly give rise to an entitlement to
relief." See Santiago v. Warminster Twp., 629
F.3d 121, 130 (3d Cir. 2010) (internal citations and
quotation marks omitted). The Third Circuit has specified
that in ruling on a Rule 12(b)(6) motion to dismiss for
failure to state a claim, "a court must consider only
the complaint, exhibits attached to the complaint, matters of
public record, as well as undisputedly authentic documents if
the complainant's claims ...