MEMORANDUM

MALACHY E. MANNION, District Judge.

I. Background

Plaintiff, Darnell Jacob Williams, an inmate confined in the Forest State Correctional Institution, Marienville, Pennsylvania, filed the above captioned civil rights action pursuant to 42 U.S.C. §1983. (Doc. 1). Williams challenges the medical care he received as an inmate at his former place of confinement, the Dauphin County Prison. The named Defendants are Joseph D. Macut, Dauphin County Prison Physician Assistant; Prime Care Medical Inc.; and Prison Medical Staff. Id. Plaintiff's allegations of fact are taken from Plaintiff's complaint and Plaintiff's attached medical records. (See Doc. 1 at 2-19).

On June 3, 2013, Plaintiff was seen by Defendant Macut, complaining of pain in his left ring finger, which he claimed he jammed over a week ago while playing basketball at the Dauphin County Prison. Id. Defendant Macut's assessment was a contusion of the finger, but needed to rule out a fracture. Id. As such, he ordered an x-ray, Motrin and that the finger be buddy taped. Id.

On June 4, 2013, Plaintiff was again seen by Defendant Macut for the follow up on the x-ray. Id. The x-ray was noted as being negative, however, the finger had mild swelling and tenderness. Id. The buddy tape was discontinued. Id.

On July 3, 2013, Plaintiff was seen by Defendant Macut for complaints of swelling at the site of his left ring finger. Id. Defendant Macut noted questionable swelling and no erythema. Id. A follow up x-ray was ordered. Id.

On July 10, 2013, Plaintiff was again seen by Defendant Macut for the follow up x-ray results, which were negative for fracture. Id. At this time Defendant Macut recommended Plaintiff be referred to Dr. William Young, the medical director for Prime Care at Dauphin County Prison. Id.

On July 12, 2013, Plaintiff was evaluated by Dr. Young for a second opinion. Id. Dr. Young noted that the finder joint could be bent passively, but not actively. Id. The x-ray noted as showing no fracture, however, Dr. Young's assessment was left finger derangement and he recommended an orthopedic evaluation. Id.

On August 15, 2013, Plaintiff was evaluated at the Kline Health Center Orthopedic Clinic. The physician's report noted that although x-rays were negative, a recommendation was made to see a hand specialist. Id.

Plaintiff alleges that he was seen by the hand specialist on August 20, 2013, who recommended immediate surgery due to a pulled ligament. Id.

On September 10, 2013, Plaintiff underwent surgery for a flexor digitorum excision with repair of A-4 pulley and fusion of the distal interphalangeal joint. Id. Following the surgery, it was recommended that Plaintiff follow up in the orthopedic clinic at the Kline Health Center on September 24, 2013. Id. There was no mention of physical therapy in the Operative Report and Assessment Plan. Id.

On September 11, 2013, Plaintiff was seen by Paul Navarro, a nurse practitioner. Id. Motrin was discontinued, but Naproxen and Keflex were ordered to address pain and to prevent infection. Id.

On September 16, 2013, Plaintiff was seen by Toby Catone, a physician's assistant, as a follow up to the his surgery. Id.

On September 24, 2013, as ordered, Plaintiff was seen in the Kline Health Center Orthopedic Clinic, for a follow up. Id. Plaintiff had his splint and sutures removed. Id. He was permitted to perform passive range of motion exercises, and follow up was scheduled in approximately four weeks. Id. There was no indication that physical therapy was needed or recommended. Id.

On October 7, 2013, Plaintiff was seen by Dr. Young for a follow up. Id. Plaintiff "was wondering why they didn't schedule [him] for physical therapy after [his] finger." Id. Dr. Young noted that passive range of motion exercises were permitted and that Plaintiff had a follow up with the surgeon soon. Id.

On October 24, 2013, Plaintiff was seen by the Kline Health Center Orthopedic Clinic for a follow up. Id. Plaintiff was examined and was provided hand exercises. Id. There was no referral or recommendation for physical therapy. Id.

On August 25, 2015, Plaintiff filed the instant action in which he seeks compensatory and punitive damages for "the permanent injuries and damages so sustained by PA-C Joseph D. Macut and Prime Care, Inc." whose "negligence and reckless acts of negligence and medical indifference caused pain, suffering and denial of adequately, prompt medical care and treatment as well as follow up treatment, which complainant so suffered and not from any voluntary actions or contributions on Plaintiff's part; thus based on the misdiagnosis of severe injury incurred; pain and suffering, malfeasance, and gross medical indifference and delay in treatment and care. . .". Id.

Currently pending before the Court is a motion to dismiss Plaintiff's complaint, filed on behalf of Defendants Macut and Prime Care Medical. (Doc. 25). The motion is fully briefed and is ripe for disposition. For the following reasons, the Court will grant the motion.

II. Motion to Dismiss

Fed.R.Civ.P. 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." Under Rule 12(b)(6), we must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). While a complaint need only contain "a short and plain statement of the claim," Fed.R.Civ.P. 8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Twombly, 550 U.S. at 556). "[L]abels and conclusions" are not enough, Twombly, 550 U.S. at 555, and a court "is not bound to accept as true a legal conclusion couched as a factual allegation." Id. (quoted case omitted). Thus, "a judicial conspiracy claim must include at least a discernible factual basis to survive a Rule 12(b)(6) dismissal." Capogrosso v. The Supreme Court of New Jersey, 588 F.3d 180, 184 (3d Cir. 2009) (per curiam).

In resolving the motion to dismiss, we thus "conduct a two-part analysis." Fowler, supra, 578 F.3d at 210. First, we separate the factual elements from the legal elements and disregard the legal conclusions. Id. at 210-11. Second, we "determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief". Id. at 211 (quoted case omitted).

In addition, because Plaintiff complains about "prison conditions," the screening provisions of 42 U.S.C. §1997e apply, as do the screening provisions of 28 U.S.C. §1915(e), given that he was granted in forma pauperis status to pursue this suit. The court's obligation to dismiss a complaint under the PLRA screening provisions for complaints that fail to state a claim is not excused even after defendants have filed a motion to dismiss. See, e.g., Lopez v. Smith, 203 F.3d 1122, 1126 n. 6 (9th Cir. 2000). Hence, if there is a ground for dismissal which was not relied upon by a defendant in a motion to dismiss, the court may nonetheless sua sponte rest its dismissal upon such ground pursuant to the screening provisions of the PLRA. See Lopez; Dare v. U.S., Civil No. 06-115E, 2007 WL 1811198, at *4 (W.D. Pa. June 21, 2007), aff'd, 264 Fed App'x. 183 (3d Cir. 2008).

III. Discussion

A. Eighth Amendment Medical Claim

In order to establish an Eighth Amendment medical claim, a plaintiff must show "(i) a serious medical need, and (ii) acts or omissions by prison officials that indicate deliberate indifference to that need." Natale v. Camden Cty. Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003). See also Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A serious medical need is one that has been diagnosed by a physician as requiring treatment, or one that is so obvious that a layperson would recognize the need for a doctor's attention. Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). In addition, "if unnecessary and wanton infliction of pain results as a consequence of denial or delay in the provision of adequate medical care, the medical need is of the serious nature contemplated by the eighth amendment." Id.

A prison official acts with deliberate indifference to an inmate's serious medical needs when he "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a complaint that a physician or a medical department "has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. . ." Estelle v. Gamble, 429 U.S. 97, 106 (1976). For instance, a "medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment. At most it is medical malpractice." Id., 429 U.S. at 107. "[A]s long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights." Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). Further, a doctor's disagreement with the professional judgment of another doctor is not actionable under the Eighth Amendment. See White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990). In sum, negligence, unsuccessful medical treatment, or medical malpractice does not give rise to a §1983 cause of action, and an inmate's disagreement with medical treatment is insufficient to establish deliberate indifference. See Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993).

Further, a prison administrator cannot be found deliberately indifferent under the Eighth Amendment because he or she fails to respond to the medical complaints of an inmate being treated by a prison physician, or because, as non-physicians, they defer to the medical judgment of the inmate's treating physicians. Id., 991 F.2d at 69. If, however, non-medical prison personnel had "a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner," liability may be imposed. Spruill, 372 F.3d 236.

A mere difference of opinion between the prison's medical staff and the inmate regarding the diagnosis or treatment which the inmate receives does not support a claim of cruel and unusual punishment. Farmer v. Carlson, 685 F.Supp. 1335, 1339 (M.D. Pa. 1988). See McCracken v. Jones, 562 F.2d 22, 24 (10th Cir. 1977); Smart v. Villar, 547 F.2d 112, 113 (10th Cir. 1976).

Additionally, if there is a dispute over the adequacy of the received treatment, courts have consistently been reluctant to second guess the medical judgment of the attending physician. Little v. Lycoming County, 912 F.Supp. 809, 815 (M.D. Pa.), aff'd, 101 F.3d 691 (3d Cir. 1996). The key question is whether the defendant has provided the plaintiff with some type of treatment, regardless of whether it is what the plaintiff desires. Farmer v. Carlson, 685 F. Supp. at 1339.

The allegations in Plaintiff's complaint, and his supporting documentation, clearly demonstrate that Plaintiff received medical attention, and that the attention Plaintiff received lacks the requisite deliberate indifference to support a Section 1983 claim. Plaintiff has been continually assessed, monitored and treated since his first sick call visit on June 3, 2013.

At best, Plaintiff's complaint demonstrates his disagreement with the type and timeliness of the treatment rendered. However, his mere disagreement with the course of action that the medical department took based on the symptoms he presented, is not enough to state a §1983 claim. Sample v. Diecks, 885 F.2d 1099, 1109 (3d Cir. 1989) (citing Estelle, 429 U.S. at 105-06 (in the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute an unnecessary and wanton infliction of pain or to be repugnant to the conscience of mankind)). This is particularly so in light of the fact that there are no allegations in the complaint that any of the Defendants intentionally withheld medical treatment from Plaintiff in order to inflict pain or harm upon Plaintiff. Farmer; Rouse.

Even holding Plaintiff's complaint to the less stringent pleading standards of pro se plaintiffs, the allegations do not sufficiently allege deliberate indifference. Plaintiff does not suggest that the institution's medical staff were aware that there was an excessive risk to his health or safety but wantonly refused to provide him medical care. Spruill v. Gillis, 372 F.3d 218, 236 n. 12 (3d Cir. 2004) (stating that while a pro se complaint should be read liberally, an inmate plaintiff must still allege that defendant was aware of the risk and intentionally disregarded it). Thus, the allegations in the Plaintiff's complaint amount to nothing more than Plaintiff's subjective disagreement with the treatment decisions and medical judgment of the medical staff at the prison. At most, the allegations in the complaint only rise to the level of mere negligence. As simple negligence can not serve as a predicate to liability under §1983, Hudson v. Palmer, 468 U.S. 517 (1984), Plaintiff's civil rights complaint fails to articulate an arguable claim. See White, 897 F.2d at 108-110.

Moreover, to the extent that Plaintiff believes that he has been misdiagnosed, mere misdiagnosis or negligent treatment is not actionable as an Eighth Amendment claim because medical malpractice is not a constitutional violation. Estelle, 429 U.S. at 106. Indeed, prison authorities are accorded considerable latitude in the diagnosis and treatment of prisoners. Durmer, 991 F.2d at 67. Once again, "mere disagreements over medical judgment" do not rise to the level of an Eighth Amendment violation. White, 897 F.2d at 110.

Before dismissing a complaint for failure to state a claim upon which relief may be granted, the Court must grant the Plaintiff leave to amend his complaint unless amendment would be inequitable or futile. See Grayson v. Mayview State Hospital, 293 F.3d 103, 114 (3rd Cir. 2002). Since it is clear from Plaintiff's complaint, and supporting documentation, that Plaintiff received adequate medical treatment throughout his incarceration at the Dauphin County Prison, and merely disagrees with the treatment he received during this time, the Court finds that amendment on these claims would be futile.

B. Equal Protection

It is well-settled that a litigant, in order to establish a viable equal protection claim, must show an intentional or purposeful discrimination. Snowden v. Hughes, 321 U.S. 1, 8 (1944); Wilson v. Schillinger, 761 F.2d 921, 929 (3d Cir. 1985), cert. denied, 475 U.S. 1096 (1986); E & T Realty v. Strickland, 830 F.2d 1107, 1113-14 (11th Cir. 1987), cert. denied, 485 U.S. 961 (1988). This "state of mind" requirement applies equally to claims involving (1) discrimination on the basis of race, religion, gender, alienage or national origin, (2) the violation of fundamental rights and (3) classifications based on social or economic factors. See, e.g., Britton v. City of Erie, 933 F.Supp. 1261, 1266 (W.D. Pa. 1995), aff'd, 100 F.3d 946 (3d Cir. 1996); Adams v. McAllister, 798 F.Supp. 242, 245 (M.D. Pa.), aff'd, 972 F.2d 1330 (3d Cir. 1992).

Aside from listing it as a federal law that Plaintiff claims was violated, Williams fails to allege facts from which it can be concluded that any of the Defendants engaged in intentional or purposeful discrimination or that he was treated differently from similarly situated individuals on the basis of his race or some other impermissible reason. Consequently, his equal protection claim will be dismissed.

IV. Conclusion

For the reasons stated above, the motion to dismiss filed on behalf of Defendants, Joseph D. Macut, and Prime Care, Inc., will be granted. Although not a moving Defendant, the Court finds that based upon the foregoing, Defendant, Prison Medical Staff, is also entitled to dismissal pursuant to of 28 U.S.C. §1915(e)(2)(B)(ii), for failure to state a claim upon which relief may be granted. An appropriate order shall issue.

Attorneys and Law Firms

John Dare, Silver Spring, MD, pro se.

Michael C. Colville, Pittsburgh, PA, for Defendants.

MEMORANDUM ORDER

SEAN J. McLAUGHLIN, United States District Judge.

* 1 This civil rights action was received by the Clerk of Court on May 17, 2006, and was referred to United States Magistrate Judge Susan Paradise Baxter for report and recommendation in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates.

The Magistrate Judge's Report and Recommendation [Doc. No. 20], filed on May 31, 2007, recommended that Defendants' motion to dismiss, or alternatively, for summary judgment [Doc. No. 13] be granted; that the retaliation claim be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A and 42 U.S.C. § 1997e(c) due to Plaintiff's failure to state a claim; and that Plaintiff's motion to amend the complaint [Doc. No. 19] be denied as futile. The parties were allowed ten (10) days from the date of service to file objections. Service was made on Plaintiff by certified mail and on Defendants. No objections were filed. After de novo review of the motions and documents in the case, together with the Report and Recommendation, the following order is entered:

AND NOW, this 21st day of June, 2007;

IT IS HEREBY ORDERED that Defendants' motion to dismiss, or alternatively, for summary judgment [Doc. No. 13] is GRANTED; the retaliation claim is DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A and 42 U.S.C. § 1997e(c) due to Plaintiff's failure to state a claim; and Plaintiff's motion to amend the complaint [Doc. No. 19] is DENIED as futile.

The Report and Recommendation [Doc. No. 20] of Magistrate Judge Baxter, filed on May 31, 2007, is adopted as the opinion of the Court.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

SUSAN PARADISE BAXTER, Chief United States Magistrate Judge.

I. RECOMMENDATION

It is respectfully recommended that the motion to dismiss, or alternatively, for summary judgment [Document # 13] be granted.

It is further recommended that the retaliation claim be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A, and 42 U.S.C. § 1997e(c) due to Plaintiff's failure to state a claim.

It is further recommended that Plaintiff's motion to amend the complaint [Document # 19] be denied as futile.

II. REPORT

A. Procedural History

On May 17, 2006, Plaintiff, formerly a federal inmate1 incarcerated at FCI-McKean in Bradford, Pennsylvania, filed the instant action. Named as Defendants are: the United States of America; James Sherman, former Warden; Deanna Tronetti, Unit Manager; Robert Fair, Case Manager, all currently or formerly of FCI-McKean; and Steven Brunson, Analyst at U.S. Parole Commission.

This is a combined Bivens /FTCA action based on Plaintiff's allegation that he was confined in prison more than twenty months past his parole eligibility date. In his original complaint, Plaintiff alleges that staff at both FCI-McKean and the U.S. Parole Commission provided inaccurate information regarding his past criminal history (relating to a 1973 juvenile conviction for Carnal Knowledge) in an attempt to deny him parole. Plaintiff claims that through their actions Defendants violated his First, Fifth, and Eighth Amendment rights under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Further, Plaintiff alleges that the U.S. should be held liable for the gross negligence of its employees under the Federal Tort Claims Act. Finally, Plaintiff alleges that Defendants knew the information to be false and provided it in retaliation for exercising his constitutional rights. Document # 3, ^ 37. As relief for these alleged wrongs, Plaintiff seeks monetary compensation.

*2 Defendants have filed a motion to dismiss or in the alternative for summary judgment [Document # 13] and Plaintiff has filed a brief in opposition [Document # 17]. Plaintiff has also filed a motion to amend the complaint [Document # 19]. These issues are fully briefed and are ripe for disposition by this Court.

B. Standards of Review

1. Pro Se Litigants

Pro se pleadings, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers" and can only be dismissed for failure to state a claim if it appears "`beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Haines v. Kerner, 404 U.S. 519, 520-521, 92 S.Ct. 594, 30 L.Ed.2d 652(1972), quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir.1969) (petition prepared by a prisoner may be inartfully drawn and should be read "with a measure of tolerance"); Smith v. U.S. District Court, 956 F.2d 295 (D.C.Cir.1992); Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir.1991). Under our liberal pleading rules, during the initial stages of litigation, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir.1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996) (discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Company, 906 F.2d 100, 103 (3d Cir.1990) (same). Because Plaintiff is a pro se litigant, this Court will consider facts and make inferences where it is appropriate.

2. Motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the complaint must be accepted as true. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The motion cannot be granted unless the court is satisfied "that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spaulding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). The issue is not whether the plaintiff will prevail at the end but only whether he should be entitled to offer evidence to support his claim. Neitzke; Scheuer v. Rhodes, 419 U.S. 232 (1974). Rule 8(a) of the Federal Rules of Civil Procedure states that a pleading must set forth a claim for relief which contains a short and plain statement of the claim showing that the pleader is entitled to relief. Therefore, in order to survive a motion to dismiss for failure to state a claim, the complaint must set forth sufficient information to suggest that there is some recognized legal theory upon which relief can be granted.

3. Failure to state a claim under the PLRA

*3 The Prison Litigation Reform Act provides that:

(b) Grounds for dismissal-On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C.A. § 1915A. Under Section 1915A, not only is a court permitted to sua sponte dismiss a complaint which fails to state a claim, but is required to do so. Nieves v. Dragovich, 1997 WL 698490, at *8 (E.D.Pa.1997) ("Under provisions of the Prison Litigation Reform Act codified at 28 U.S.C. §§ 1915A, 1915(e) and 42 U.S.C. § 1997e(c), the district courts are required, either on the motion of a party or sua sponte, to dismiss any claims made by an inmate that are frivolous or fail to state a claim upon which relief could be granted.").

The PLRA also amended the statutory provisions with respect to actions brought by prisoners who are proceeding in forma pauperis. See 28 U.S.C. § 1915(e)(2)2. Under this provision as well, not only is a court permitted to sua sponte dismiss a complaint which fails to state a claim, but it is required to do so by mandatory language. See, e.g., Keener v. Pennsylvania Bd. ofProbation and Parole, 128 F.3d 143, 145 n. 2 (3d Cir.1997) (describing 28 U.S.C. § 1915(e)(2)(B) as "the PLRA provision mandating sua sponte dismissal of in forma pauperis actions that are frivolous or fail to state a claim."). In performing a court's mandated function of sua sponte reviewing a complaint under 28 U.S.C. § 1915(e) and under § 1915A to determine if it fails to state a claim upon which relief can be granted, a federal district court applies the same standard applied to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). See, e.g., Tucker v. Angelone, 954 F.Supp. 134, 135 (E.D.Va.1977) ("Under 28 U.S.C. §§ 1915A, 1915(e) and 42 U.S.C. § 1997e(c) the courts are directed to dismiss any claims made by inmates that `fail to state a claim upon which relief could be granted'".).

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the complaint must be accepted as true. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Langford v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir.2000). The motion cannot be granted unless the court is satisfied "that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spaulding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). See also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). The issue is not whether the plaintiff will prevail at the end but whether he should be entitled to offer evidence in support of his claim. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Scheuer v. Rhodes, 419 U.S. 232 (1974). However, a court need not credit a complaint's "bald assertions" or "legal conclusions" when deciding a motion to dismiss. Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir.1997) citing In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1429-30 (3d Cir.1997). Therefore, in order to survive a motion to dismiss for failure to state a claim, the complaint must only set forth sufficient information to suggest that there is some recognized legal theory upon which relief can be granted. See Swierkiewicz.

*4 The court's obligation to dismiss a complaint under the PLRA is not excused even after the defendants have filed a motion to dismiss if it appears that the complaint fails to state a claim based upon grounds not raised by the defendants in their motion to dismiss. See, e.g., Lopez v. Smith, 203 F.3d 1122, 1126 n. 6 (9th Cir.2000); Palay v. United States, 125 F.Supp.2d 855, 860 (N.D.Ill.2000).

4. Motion for summary judgment pursuant to Fed.R.Civ.P. 56

Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(e) further provides that when a motion for summary judgment is made and supported, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." Id.

A district court may grant summary judgment for the defendant when the plaintiff has failed to present any genuine issues of material fact. See Fed.R.Civ.P. 56(c); Krouse v. American Sterilizer Company, 126 F.3d 494, 500 n. 2 (3d Cir.1997). The moving party has the initial burden of proving to the district court the absence of evidence supporting the non-moving party's claims. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Country Floors, Inc. v. Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir.1990). Further, "[R]ule 56 enables a party contending that there is no genuine dispute as to a specific, essential fact `to demand at least one sworn averment of that fact before the lengthy process of litigation continues.'" Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir.1990), quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).

The burden then shifts to the non-movant to come forward with specific facts showing a genuine issue for trial. Matsushita Elec. Indus. Company v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir.1989) (the non-movant must present affirmative evidence-more than a scintilla but less than a preponderance-which supports each element of his claim to defeat a properly presented motion for summary judgment). The non-moving party must go beyond the pleadings and show specific facts by affidavit or by information contained in the filed documents (i.e., depositions, answers to interrogatories and admissions) to meet his burden of proving elements essential to his claim. Celotex, 477 U.S. at 322; Country Floors, 930 F.2d at 1061.

C. The Bivens Claim

*5 Defendants argue that Plaintiff's Bivens claim should be dismissed pursuant to the favorable termination requirement of Heck v. Humphrey [512 U.S. 447 (1994)] and its progeny.

In Heck, the Supreme Court held that a state prisoner could not maintain a § 1983 action for damages under the civil rights laws if "a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence . . . unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." 512 U.S. at 487. The Court recently summarized this so-called "favorable termination requirement" by explaining that a "state prisoner's § 1983 action is barred (absent prior invalidation)-no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings)-if success in that action would necessarily demonstrate the invalidity of confinement or its duration." Wilkinson v. Dotson, 544 U.S. 74, 81-82, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005). See also Hill v. McDonough, ___ U.S. ___, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006); Muhammad v. Close, 540 U.S. 749, 124 S.Ct. 1303, 158 L.Ed.2d 32 (2004).3

So then, the law is well established that a claimant cannot use a civil rights action as a vehicle to circumvent the validity of his underlying conviction or the duration of his sentence. Thus, in order to recover damages, a Bivens plaintiff must prove that the conviction has been reversed or declared invalid by a disciplinary appeal. See Banks v. Hayward, 2007 WL 120045, at * 6 n. 7 (W.D.Pa. January 10, 2007), citing Avery v. Nichol, 2000 WL 282903, at *2 (6th Cir.2000). Plaintiff can make no such showing here.

In the instant complaint, Plaintiff alleges violations of his constitutional rights arising out of the denial of his parole eligibility.4 Not only has Plaintiff not proven that the duration of his sentence has been reversed or declared invalid, but the term of his incarceration has been specifically upheld by this very Court, as well as the United States Court of Appeals for the Third Circuit. By Order dated May 3, 2006, United States District Judge Sean J. McLaughlin denied the petition for writ of habeas corpus following a Report and Recommendation issued by this Magistrate Judge.5 See Dare v. United States Parole Commission, Civil Action Number 05-257E. Plaintiff appealed that determination to the Third Circuit, which upheld this district court's determination on January 9, 2007.6

Here, a finding by this Court that Defendants violated Plaintiff's constitutional rights would "necessarily imply the invalidity" of the sentence, a sentence which has been upheld by this Court and the Third Circuit. Accordingly, Plaintiff's constitutional claim is precluded by Heck and the motion to dismiss should be granted as to this claim.

D. The FTCA Claim

1. The Favorable Termination Requirement of Heck

The FTCA claim should also be dismissed pursuant to the favorable termination requirement of Heck. The United States Court of Appeals for the Third Circuit has not specifically applied the Heck rule in the FTCA context. However, many other Circuit Courts of Appeal, as well as district courts, have applied Heck to FTCA actions, and this Court finds their reasoning persuasive. See Parris v. United States, 45 F.3d 383, 385 (10th Cir.1995) ("[W]e conclude the same common law principles that informed the Supreme Court's decision in Heck should inform the decision of whether an action under the FTCA is cognizable when it calls into question the validity of a prior conviction. We conclude the FTCA, like § 1983, is not an appropriate vehicle for challenging the validity of outstanding criminal judgments."); Rashid v. Monteverde & Hemphill, 1997 WL 360922, at * 7 n. 15 (E.D.Pa.1997) (applying Heck to FTCA claims involving false arrest, false imprisonment and malicious prosecution); Hinton v. United States, 91 Fed. Appx., 2004 WL 540473 (6th Cir.2003) (in applying Heck, the appellate court held "here, plaintiff seeks return of the documents for which he stands convicted of forging or counterfeiting, and money damages for the allegedly tortious confiscation of the documents. . . . plaintiff's claims are not cognizable under the FTCA insofar as a ruling in plaintiff's favor would imply the invalidity of plaintiff's disciplinary conviction."); Bradshaw v. Jayaraman, 205 F.3d 1339 (Table) 1999 WL 1206870, at *2 (6th Cir.1999) (in an FTCA action alleging legal malpractice by appointed criminal defense attorney, two law firm employees and court reporter, the appellate court held "a plaintiff may not bring such a suit for monetary damages under federal law until his conviction has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or has otherwise been called into question by a federal court's issuance of a writ o habeas corpus. The holding in Heck bars such actions, whether brought under Bivens, or the FTCA."); Erlin v. United States, 364 F.3d 1127, 1133 (9th Cir.1994) (an FTCA claim "for negligently calculating a prisoner's release date, or otherwise "wrongfully imprisoning the prisoner, does not accrue until the prisoner has established, in a direct or collateral attack on his imprisonment, that he is entitled to release from custody."); Watkins v. Holt, 2006 WL 2331090, at *2 (D.D.C.2006) (in an FTCA action alleging negligence by Bureau of Prisons employees in miscalculating a prison sentence, the district court applied Heck holding that "absent a showing that plaintiff's conviction or sentence is invalid, he cannot recover damages under the FTCA."); Echols v. Dwyer, 914 F.Supp. 325, 327 (E.D.Mo.1996) (in an FTCA action alleging legal malpractice by a federal public defender the district court applied Heck ruling "that an action under the FTCA is not cognizable when it calls into question the validity of a prior conviction").

*6 Although this Court is not willing to apply Heck to every FTCA case, its applicability to the facts as alleged here is particularly relevant. The duration of Plaintiff's sentence has been upheld by Third Circuit, the precise determination he now challenges in this FTCA action. By bringing a tort claim against the United States, Plaintiff is asking this Court to necessarily determine the validity of his allegedly increased sentence. Such an FTCA action in this regard "is not an appropriate vehicle for challenging the validity of outstanding criminal judgments." Parris, 45 F.3d at 385.

Accordingly, the FTCA claim should be dismissed.

E. The Retaliation Claim

Finally, Plaintiff alleges that Defendants retaliated against him by providing inaccurate information following his exercise of some unspecified constitutional right. Inexplicably, Defendants have not moved to dismiss this claim. However, as Plaintiff has failed to state a claim for relief, this Court recommends the dismissal of this action pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A, and 42 U.S.C. § 1997e(c).

"Retaliation for the exercise of constitutionally protected rights is itself a violation of rights secured by the Constitution actionable under section 1983." See White v. Napoleon, 897 F.2d 103, 111-12 (3d Cir.1990). "Government actions, which standing alone, do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for exercise of a constitutional right." Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.2003), quoting Allah v. Seiverling, 229 F.3d 220, 224-25 (3d Cir.2000).7 See also Anderson v. Davila, 125 F.3d 148, 161 (3d Cir.1997) ("An otherwise legitimate and constitutional government act can become unconstitutional when an individual demonstrates that it was undertaken in retaliation for his exercise of First Amendment rights.").

In order to state a prima facie case of retaliation, a prisoner plaintiff must demonstrate all three of the following factors:

1) the conduct in which he was engaged was constitutionally protected;

2) he suffered "adverse action"8 at the hands of prison officials; and

3) his constitutionally protected conduct was a substantial or motivating factor in the decisions to discipline him. Carter v. McGrady, 292 F.3d 152, 157-58 (3d Cir.2002) (emphasis added), quoting Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.2001).9 In his complaint, Plaintiff has not specifically identified any constitutionally protected conduct. This Court has thoroughly examined and liberally construed all of Plaintiff's filings in this case and cannot pinpoint any constitutionally protected conduct in which Plaintiff was engaged. As Plaintiff has not even alleged the first prong of a prima facie case of retaliation, this claim should be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A, and 42 U.S.C. § 1997e(c).

E. Futility of Amendment

*7 Plaintiff has filed a motion to amend his complaint seeking to update this Court on happenings since his last filing, as well as provide exhibits in support of his claims.

Federal Rule of Civil Procedure 15(a) states that "leave [to amend] shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). "In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rules require, be freely given." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (interpreting Federal Rules of Civil Procedure). An amendment would be futile when the complaint, as amended, would fail to state a claim upon which relief could be granted. In re NAHC, Inc. Securities Litigation, 306 F.3d 1314, 1332 (3d Cir.2002).

Nothing in the proposed amendments overcomes the bar of Heck v. Humphrey. Accordingly, the motion to amend should be denied as futile.

III. CONCLUSION

It is respectfully recommended that that the motion to dismiss, or alternatively, for summary judgment [Document # 13] be granted.

It is further recommended that the retaliation claim be dismissed from this action pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A, and 42 U.S.C. § 1997e(c) due to Plaintiff's failure to state a claim.

It is further recommended that Plaintiff's motion to amend the complaint [Document # 19] be denied as futile.

In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b) (1)(B) and (C), and Local Rule 72.1.4 B, the parties are allowed ten (10) days from the date of service to file written objections to this report. Any party opposing the objections shall have seven (7) days from the date of service of objections to respond thereto. Failure to timely file objections may constitute a waiver of appellate rights. See Nara v. Frank, ___ F.3d ___, 2007 WL 1321929 (3d Cir. May 08, 2007).

All Citations

Not Reported in F.Supp.2d, 2007 WL 1811198