REPORT AND RECOMMENDATION

Re: ECF No. 30

MAUREEN P. KELLY, 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 Plaintiff's 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 Plaintiff's 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 Sch. 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 1983"), which provides:

"Section 1983 provides remedies for deprivations of rights established in the Constitution or federal laws. It does not, by its own terms, create substantive rights." Kaucher v. Cty of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Baker v. McCollan, 443 U.S. 137, 145, n. 3 (1979)). Thus, in order to state a claim for relief under Section 1983, the plaintiff must allege facts from which it could be inferred that "the defendant, acting under color of state law, deprived him or her of a right secured by the Constitution or the laws of the United States." Id. In this action, Plaintiff contends that Defendants deprived him of rights provided by the Fourth Amendment to the United States Constitution.

Under the Fourth Amendment, "[p]rison inmates retain certain protections ... despite their incarcerated status, including the right to bodily privacy." Bey v. NJ Dep't of Corr., No. 18-3693, 2018 WL 5784999, at *5 (D.N.J. Nov. 5, 2018) (citing Parkell v. Danberg, 833 F.3d 313, 326 (3d Cir. 2017)). Although inmates do not have a right to be free from strip searches absent probable cause, the United States Supreme Court has held that these searches must be conducted in a reasonable manner. Bell v. Wolfish, 441 U.S. 520, 558 (1979); see also Cochran v. Kupchella, No. 14-1991, 2015 WL 8601573, at *4 (W.D. Pa. Dec. 14, 2015). Whether such a search is "reasonable" is determined by balancing the need for the search against the invasion of personal rights, taking into consideration four factors: "the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Bell, 441 U.S. at 559.

Courts have held that "using a camera to record a strip search in prison does not, by itself, amount to a constitutional violation." Watley v. Pike Cty., No. 3:17-cv-1539, 2018 WL 6018903, at *11 (M.D. Pa. Nov. 16, 2018). The presence of additional aggravating factors, such as the recording or viewing of the tapes by an officer of the opposite sex, however, can render a search unreasonable under Bell. See id. (citing Baggett v. Ashe, 41 F.Supp.3d 113 (D. Mass. 2014) (holding that female inmates' Fourth Amendment rights were violated by policy of male officer videotaping strip searches)).

In the instant Motion to Dismiss, Defendants argue that Plaintiff's claims should be dismissed because the searches are reasonable under Bell, and therefore do not violate Plaintiff's Fourth Amendment rights. Defendants rely on a declaration from Defendant Michael Zaken (the "Zaken Declaration"), which Defendants appended to a prior filing in this action. ECF 19-1. The Zaken Declaration purports to identify various precautions that SCI-Greene officials have taken to ensure that inmates' private areas are not recorded during strip searches and to limit the circumstances in which the videos are viewed. ECF No. 31 at 8. Given these "overall precautions," Defendants contend, Plaintiff cannot prove his claim. Id. Plaintiff opposes Defendants' motion, asserting, inter alia, that these precautions are not consistently taken and disputing the reasonableness of the searches at issue. ECF No. 33.

Based upon the Court's review of the foregoing, it is recommended that the Motion to Dismiss be denied. Plaintiff's allegations that nude images of Plaintiff are recorded and stored for an unknown amount of time, are viewed by various prison officials, including officials of the opposite sex, and that this policy was imposed for retaliatory purposes, raise questions of fact regarding the reasonableness of relevant searches under Bell and therefore preclude dismissal at this early stage. To the extent Defendants rely on the Zaken Declaration to refute Plaintiff's claim, this is not properly in consideration on a Rule 12(b)(6) motion. Fed. R. Civ. P. 12(d); see also Gross v. Stryker Corp., 858 F.Supp.2d 466, 478 (W.D. Pa. 2012) (holding that defendant's affidavit could not be considered on Rule 12(b)(6) motion, as court may only consider allegations in the complaint, exhibits to attached to the complaint, matters of public record, and documents that form the basis of a claim). Accordingly, Defendants' Motion to Dismiss should be denied.

D. CONCLUSION

For the foregoing reasons, it is respectfully recommended that the Motion to Dismiss, ECF No. 30, be DENIED.

In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.