DAVIS v. SAMUELS

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

BRIAN A. DAVIS and FREDRICKA K. _) Case No. 3:16-cv-26

BECKFORD, )

) JUDGE KIM R. GIBSON

Plaintiffs, )

)

v. )

)

THE GEO GROUP, INC.; GEORGE C. ©)

WIGEN, FORMER WARDEN, )

MOSHANNON VALLEY )

CORRECTIONAL CENTER; DONNA _ )

MELLENDICK, FORMER )

ADMINISTRATOR, BUREAU OF )

PRISONS PRIVATIZATION )

MANAGEMENT BRANCH; and )

DAVID O’NEILL, ASSISTANT FIELD _ )

DIRECTOR, DEPARTMENT OF )

HOMELAND SECURITY, )

)

Defendants. )

MEMORANDUM OPINION

Before the Court is Defendants David O’Neill (“O’Neill”) and Donna Mellendick’s

(“Mellendick”) Motion to Dismiss Plaintiffs’ Second Amended Complaint for Lack of

Subject Matter Jurisdiction and Failure to State a Claim (ECF No. 86), and Defendants Geo

Group, Inc. (“GEO”) and G.C. Wigen’s (“Wigen”) Motion to Dismiss Plaintiffs’ Second

Amended Complaint. (ECF No. 89.) Plaintiffs Brian A. Davis (“Davis”) and Fredricka K.

Beckford’s (“Beckford”) Second Amended Complaint includes the following five claims

against all Defendants: Conspiracy to Interfere with Civil Rights under 42 U.S.C. § 1985(3)

(Count J); Violation of the Religious Freedom Restoration Act (“RFRA”) (Count II);

Intentional Infliction of Emotional Distress (“ITED”) (Count IID; Violation of Civil Rights

under 42 U.S.C. § 1983 (Count IV); and Creation of Unconstitutional Conditions of

Confinement under 42 U.S.C. § 1983 (Count V). (ECF No. 62.) Beckford seeks damages from

Wigen in his individual capacity with respect to her ITED claim. (Jd. at 17-18.) However,

Davis and Beckford do not state that they are suing any of the Defendants in their

individual capacities with respect to any of their other claims. (See ECF No. 62.)

O'Neill and Mellendick contend that this Court does not have subject matter

jurisdiction over Beckford’s TIED claim against them (Count III) under the Federal

Employees Liability Reform and Tort Compensation Act (“Liability Reform Act”). (ECF No.

87 at 9.) With respect to Counts L, IL, IV, and V, O’Neill and Mellendick argue that they are

entitled to qualified immunity and that Davis and Beckford have failed to state claims upon

which relief can be granted. (Id. at 18-30.) Further, O’Neill and Mellendick contend that all

claims against Mellendick are barred by the statute of limitations. (Id. at 30-34.) Finally,

they argue that Davis is not entitled to compensatory damages on any of the five counts.

(Id. at 34-35.)! For their part, GEO and Wigen state that, with respect to all counts, Davis

and Beckford have failed to allege an adequate factual basis upon which relief can be

granted. (See ECF No. 90.)

1 As the Court explains more fully below, it is granting O’Neill and Mellendick’s motion to dismiss

for lack of subject matter jurisdiction. It is also granting Defendants’ motions to dismiss for failure

to state a claim because, for all five of their claims, Davis and Beckford have failed to allege

sufficient facts upon which relief can be granted. Therefore, the Court will not consider the issues

of qualified immunity, whether the claims against Mellendick are barred by the statute of

limitations, and whether Davis is entitled to compensatory damages.

The Defendants’ Motions are full briefed (ECF Nos. 87, 90, 96, 101, 102, 105), and are

ripe for disposition. For the following reasons, the Court GRANTS O’Neill and

Mellendick’s Motion to Dismiss Plaintiffs’ Second Amended Complaint for Lack of Subject

Matter Jurisdiction and Failure to State a Claim (ECF No. 86), and also GRANTS GEO and

Davis’ Motion to Dismiss Plaintiffs’ Second Amended Complaint. (ECF No. 89.)

1. Jurisdiction and Venue

This Court has subject-matter jurisdiction over Davis and Beckford’s constitutional

and statutory claims because they arise under federal law. 28 U.S.C. §§ 1331, 1343. This

Court has subject-matter jurisdiction over Beckford’s remaining state law claim because it

forms part of the same case or controversy as the federal claims. 28 U.S.C. § 1367.

Venue is proper in this district because a substantial portion of the events or

omissions giving rise to the claims occurred in the Western District of Pennsylvania. 28

U.S.C. § 1391(b)(2).

II. Factual Background?

This case arises from Davis and Beckford’s unsuccessful efforts to get married while

Davis was an inmate at Moshannon Valley Correctional Center (“MVCC”). (See ECF No.

62.)

2 Unless otherwise noted, the Court draws the following facts, which it accepts as true for purposes

of deciding the motions, from Davis and Beckford’s Second Amended Complaint. (ECF No. 62.)

Because the Amended Complaint omits some basic facts that were previously included in the

Complaint and First Amended Complaint and that are helpful for providing context and a coherent

factual narrative, the Court also draws certain facts from the Complaint and First Amended

Complaint. (ECF Nos. 3, 6.)

Mr. Davis is a black Jamaican national who resided in the United States from an

early age. (Id. at 4.) Ms. Beckford is a black United States citizen of Jamaican descent who

resided in the State of Georgia during the timeframe relevant to this case. (Id. at 3.) Beckford

met Davis as a child, and the pair had a continuous relationship over the following years.

(Id.)

In 1993, Davis was convicted of non-violent drug offenses and sentenced to life

imprisonment. (Id. at 5.) Following his sentencing, Davis was incarcerated at FCI McKean

in Bradford, Pennsylvania, where he remained until his term of imprisonment was reduced

to thirty years on June 19, 2008. (Id.) Once his sentence was reduced, Davis and Beckford

became engaged and planned to get married. (Id.) As devout Christians, Davis and

Beckford viewed getting married as an expression of their faith. (Id. at 16.) Following the

reduction of his sentence, Davis also requested to be transferred to FCI Fort Dix, a BOP-

operated facility in New Jersey that was close to his family, who lived in New York. (Id. at

7.) Davis was instead transferred to MVCC, where he arrived on June 1, 2012. (Id.) At the

time of Davis’s arrival at MVCC, he and Beckford knew that he would soon face

deportation. (Id. at 5.)

MVCC was a private prison owned by GEO and located in Philipsburg,

Pennsylvania. (ECF No. 3 at 4.) GEO was a private corporation with headquarters in

Florida. (ECF No. 62 at 6.) GEO owned and operated MVCC pursuant to a contract with

the United States and under the supervision of the Bureau of Prisons (“BOP”). (Id.)

After Davis arrived at MVCC, he and Beckford submitted a written request to

MVCC administrative staff, asking that preparations be made to allow the couple to get

married. (Id. at 7.) Davis and Beckford indicate that MVCC administrative personnel denied

Davis’s request on multiple occasions, and that the last denial came from Wigen, the

warden at MVCC from around March of 2013 to November of 2015. (Id.; ECF No. 3 at 4.)

Beckford also submitted a written request to MVCC personnel asking that preparations be

made for her and Davis to marry, but her request was denied as well. (ECF No. 62 at 8.)

After MVCC denied their request to marry, Davis and Beckford challenged the

denial through the administrative remedy process, and ultimately brought the matter to

the attention of the Administrator of the Privatization Management Branch at the BOP,

Mellendick. (Id.) In response, Mellendick or a member of her staff informed Davis, in a

written correspondence, that the matter was exclusively for MVCC personnel to resolve.

(Id.)

Davis remained at MVCC until on or around April 20, 2016. (Id. at 9.) He and

Beckford were not permitted to marry at any point prior to his departure from MVCC. (Id.)

As a result of her mability to marry Davis, Beckford states that she has suffered “stress,

anxiety, hospitalization, and long term medical issues.” (Id. at 19.)

Davis and Beckford allege that the BOP and other government officials have

contracted with GEO to ensure that alien-inmates are housed at MVCC and prevented from

marrying. (Id. at 10.) Specifically, they allege that Mellendick, in her capacity as

administrator of the BOP Privatization Branch, and Neill, who was the Assistant Field

Officer Director of the Philadelphia Field Office of Immigration and Customs Enforcement

(“ICE”), Department of Homeland Security (“DHS”) at the time, were the individuals “who

directed MVCC to deny inmates the right to marry.” (Id.) According to Davis and Beckford,

approximately “98% (if not all) of the inmates housed at MVCC are faced with an

impending immigration matter or have been ordered deported from the United States,”

and DHS “is able to commence removal proceedings while the inmate is serving their

federal sentence.” (Id.) Davis and Beckford state that since MVCC was acquired by GEO

and began receiving federal funding, no inmates at the prison have been allowed to marry.

(Id. at 9-10.)

III. Procedural Background

Davis and Beckford filed a pro se Complaint on January 25, 2016, and then filed an

Amended Complaint on February 22, 2016. (ECF Nos. 1, 6.) In their Amended Complaint,

Davis and Beckford brought claims against GEO, Wigen, O'Neill, and the then-unnamed

Administrator of the Bureau of Prisons Privatization Management Branch. (ECF No. 6.)

Davis and Beckford alleged that the Defendants had violated: Title VI of the Civil Rights

Act, 42 U.S.C. § 2000d; 42 U.S.C. §§ 1981, 1983, 1985; the Equal Protection Clause of the U.S.

Constitution; the Constitution of Pennsylvania; 45 C.F.R. § 3.6; and 28 C.F.R. § 42.104.

On August 31, 2017, GEO and Wigen filed a Motion to Dismiss Plaintiffs’ Amended

Complaint Pursuant to Rule 12(b)(6). (ECF No. 29.) On December 15, 2017, the Magistrate

Judge issued a Report and Recommendation, recommending that this Court grant GEO and

Wigen’s motion to dismiss. (ECF No. 37.) The Magistrate Judge found that Davis and

Beckford had failed to state claims against GEO and Wigens upon which relief could be

granted. (Id.) Further, the Judge found that Davis and Beckford’s failure to prosecute the

case against the BOP Administrator and O’Neill mandated dismissal of the claims against

those defendants. (Id.) On January 30, 2018, this Court adopted the Magistrate Judge’s

Report and Recommendation as the opinion of the Court. (ECF No. 44.) In response, on

January 31, Davis and Beckford appealed this Court’s decision to the Third Circuit. (ECF

No. 45.)

In its opinion, the Third Circuit affirmed this Court’s dismissal of Plaintiffs’ Bivens

claim, as well as Plaintiffs’ claims under 42 U.S.C. §§ 1981, 1983, 2000d. Davis v. Samuels,

962 F.3d 105, 113-16 (3d Cir. 2020). However, the Third Circuit reversed this Court's

dismissal of Davis and Beckford’s claim under 42 U.S.C. § 1985(3), as well as its dismissal

of Davis and Beckford’s claims under the Equal Protection Clause, Pennsylvania

Constitution, and Federal regulations. Id. at 115-16. With respect to Davis and Beckford’s

claim under Section 1985(3), the Third Circuit reversed this Court on narrow grounds,

explaining that it was “not opining on the merit” of Plaintiffs’ Section 1985(3) claim. Id. at

114. It was only saying that the “rationale given for the order of dismissal presently before

[it] was wrong.” Id. Finally, the Third Circuit vacated this Court’s dismissal of the claims

against the Federal Defendants (the unnamed BOP Administrator, O’ Neill, and others), and

remanded the case to this Court. Id. at 116-17.

On September 1, 2020, Davis and Beckford submitted their Second Amended

Complaint, this time expressly naming Mellendick as the Former Administrator of the

Bureau of Prisons, Privatization Management Branch. (ECF No. 62.) As noted earlier, Davis

and Beckford’s Second Amended Complaint alleges the following five claims: Conspiracy

to Interfere with Civil Rights under 42 U.S.C. § 1985(3) (Count I); Violation of the Religious

Freedom Restoration Act (“RFRA”) (Count II); Intentional Infliction of Emotional Distress

(Count I); Violation of Civil Rights under 42 U.S.C. § 1983 (Count IV); and Creation of

Unconstitutional Conditions of Confinement under 42 U.S.C. § 1983 (Count V). (Id.)

On February 5, 2021, O’Neill and Mellendick filed a motion to dismiss Davis and

Beckford’s Second Amended Complaint for lack of subject matter jurisdiction and failure

to state a claim. (See ECF No. 86.) On the same day, GEO and Wigens filed a motion to

dismiss the Second Amended Complaint for failure to state a claim. (See ECF No. 89.)

IV. Legal Standard

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

A motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule

of Civil Procedure 12(b)(1) challenges the “court’s ‘very power to hear the case.”” Petruska

v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006) (quoting Mortensen v. First Fed. Sav. And

Loan Ass'n, 549 F.2d 883, 891 (3d Cir. 1977)). The party asserting that federal jurisdiction

exists in a matter bears the burden of proving the existence of such subject matter

jurisdiction. See Brown v. Tucci, 960 F. Supp. 2d 544, 561 (W.D. Pa. 2013) (citing Dev. Fin.

Corp. v. Alpha Housing & Health Care, 54 F.3d 156, 158 (3d Cir. 1995)). There is a crucial

difference between a Rule 12(b)(1) motion that attacks a complaint on its face, and a Rule

12(b)(1) motion that attacks the existence of subject matter jurisdiction in fact—apart from

any pleadings. See Mortensen, 594 F.2d at 891. With a facial attack, a court must consider the

allegations of a complaint as true, as with a motion filed pursuant to Federal Rule of Civil

Procedure 12(b)(6). See id. With a factual attack, however, the court ordinarily is not

required to limit its inquiry to the facts as they are pled in the complaint because a

presumption of truth is not attached to the plaintiff's allegations, and the plaintiff bears the

burden of proving that jurisdiction over the subject matter at issue exists. See id.; see also

Tucci, 960 F. Supp. 2d at 561 (citing Dev. Fin. Corp., 54 F.3d at 158).

B. Motion to Dismiss for Failure to State a Claim Upon Which Relief Can be

Granted

The Court may dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6)

where the complaint fails “to state a claim upon which relief can be granted.” Connelly v.

Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016). However, detailed pleading is not

generally required. Id. The Federal Rules of Civil Procedure demand only “a short and

plain statement of the claim showing that the pleader is entitled to relief” to give the

defendant fair notice of what the claims are and the grounds upon which they rest. Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2)).

Under the pleading regime established by Twombly and Iqbal, a court reviewing the

sufficiency of a complaint must take three steps.? See Ashcroft v. Iqbal, 556 U.S. 662, 675

(2009). First, the court must “tak[e] note of the elements [the] plaintiff must plead to state

aclaim.” Id. Second, the court should identify allegations that, “because they are no more

than conclusions, are not entitled to the assumption of truth.” Id. at 679; see also Burtch v.

Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011) (“Mere restatements of the elements of

a claim are not entitled to the assumption of truth.” (citation omitted)). Finally, “[w]hen

there are well-pleaded factual allegations, [the] court should assume their veracity and then

3 Although Iqbal described the process as a “two-pronged approach,” Ashcroft v. Iqbal, 556 U.S. 662,

679 (2009), the Supreme Court noted the elements of the pertinent claim before proceeding with that

approach, see id. at 675-79. Thus, the Third Circuit has described the process as a three-step

approach. See Connelly, 809 F.3d at 787; Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 n.4 (3d Cir.

2011) (citing Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).

determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at

679. “A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id.; see also Connelly, 809 F.3d at 786. Ultimately, the plausibility determination is

“a context-specific task that requires the reviewing court to draw on its judicial experience

and common sense.” Iqbal, 556 U.S. at 679.

V. Discussion: Motion to Dismiss for Lack of Subject Matter Jurisdiction

A. The Parties’ Arguments

O’Neill and Mellendick contend that because they were acting within the scope of

their employment when they took the actions that form the basis of Beckford’s ITED claim,

Beckford must advance that claim against the United States. (ECF No. 87 at 8.) Further,

O'Neill and Mellendick argue that Beckford failed to file an administrative tort claim

against the United States, meaning that she has not exhausted her administrative

remedies and cannot bring a claim against the United States before this Court. (Id. at 9.)

Finally, O’Neill and Mellendick argue that because Beckford is alleging an intentional

tort, she cannot bring a claim against the United States under the Federal Tort Claims Act

(“FTCA”). (Id.)4

Plaintiffs do not express any disagreement with the suggestion that O’Neill and

Mellendick were acting within the scope of their employment when they took the actions

4 As the Court explains more fully below, it concludes that Beckford cannot bring her ITED claim

against the United States because she failed to exhaust her administrative remedies. Therefore, the

Court will not address O’ Neill and Mellendick’s contention that Beckford cannot bring her TED

claim against the United States because she seeks recovery for an intentional tort.

10

that form the basis of Beckford’s ITED claim, or that the United States is the proper

defendant for that claim. (See ECF Nos. 96 and 105.) However, Plaintiffs do contend that

O’Neill and Mellendick should not be allowed to rely on certain documents that they

attached to their brief in establishing that Beckford has not exhausted her administrative

remedies. (ECF No. 96 at 4.)

B. The Liability Reform Act

The Liability Reform Act “provides federal employees acting within the scope of

their employment absolute immunity from damage liability on state law tort claims.”

Brumfield v. Sanders, 232 F.3d 376, 379 (3d Cir. 2000). Under the Liability Reform Act, the

Attorney General may certify that federal employees who are defendants in a lawsuit

were acting within the scope of their employment with respect to the conduct at issue and

request that the United States be substituted as the only defendant in place of those

employees. Id.5 The Attorney General has delegated the authority to certify that federal

employees were acting within the scope of their employment to United States Attorneys

in consultation with the Department of Justice. Bohnenkamp v. Whisterbarth, No. 1:19-cv-

00115-RAL, 2021 WL 1600477, at *5 (W.D. Pa. Apr. 23, 2021).When the United States

Attormmey for the district in which a court sits files papers on behalf of defendants

indicating that those defendants were acting within the scope of their employment, the

5 28 U.S.C. § 2679(d)(1) provides that upon “certification by the Attorney General that the

defendant employee was acting within the scope of his office or employment at the time of the

incident out of which the claim arose, any civil action or proceeding commenced upon such claim

in a United States district court shall be deemed an action against the United States under the

provisions of this title and all references thereto, and the United States shall be substituted as the

party defendant.”

11

Court may accept those papers as the US Attorney’s certification. Maclean v. Secor, 876 F.

Supp. 695, 705 (B.D. Pa. 1995).

A United States Attorney’s certification is prima facie evidence that the employee's

challenged conduct occurred within the scope of employment, but it is not conclusive.

Schrob v. Catterson, 967 F.2d 929, 936 (3d Cir. 1992). Thus, a plaintiff challenging the

certification has the burden of coming forward with specific facts rebutting it. Id.

Ultimately, the scope of employment determination under the Liability Reform Act is

governed by “the law of the place where the act or omission occurred.’”” Maclean, 876 F.

Supp. at 705 (quoting 28 U.S.C. § 1346(b)); see also Melo v. Hafer, 912 F.2d 628, 642 (3d Cir.

1990). Therefore, Pennsylvania law governs the scope of employment issue in this case.® In

determining whether an employee was acting within the scope of his or her employment,

Pennsylvania courts look to the Restatement (Second) of Agency, which provides that

conduct □□□ within the scope of employment if, but only if: (a) it is the kind [the

employee] is employed to perform; (b) it occurs substantially within the authorized time

6 Mellendick’s office was in Washington, D.C. (ECF No. 6 at 5-6.) Further, Plaintiffs allege that

either Mellendick or a member of her staff informed Davis that she would leave the issue of Davis

and Beckford getting married to MVCC. (ECF No, 62 at 8.) Thus, the Court could infer that

Mellendick acted relative to Davis’s request from Washington, D.C. However, O’Neill’s office was

in Philadelphia. (Id. at 6.) Accordingly, the Court finds that where one federal employee may have

acted from Washington, D.C., another almost certainly acted from within Pennsylvania. Further,

Plaintiffs allege that Mellendick and O’Neill worked with GEO and Wigen to prevent the inmates

at MVCC from marrying. (Id. at 11.) It is a fair inference that a good portion of this activity

occurred in Pennsylvania, where O’Neill’s office and MVCC were located. Therefore, because

many of the events underlying Beckford’s ITED claim—i.e., “the denial of her and Mr. Davis’s

multiple requests to MVCC and the United States government to marry,” (Id. at 18)—appear to

have occurred in Pennsylvania, the Court holds that Pennsylvania law applies to the scope of

employment issue.

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and space limits [and] (c) it is actuated, at least in part, by a purpose to serve the master.’”

Sanders, 232 F.3d at 380 (quoting Restatement (Second) Agency § 228).

C. O'Neill and Mellendick Were Acting Within the Scope of Their

Employment

For several reasons, the Court finds that O’Neill and Mellendick were acting

within the scope of their employment when they took the actions that form the basis for

Beckford’s ITED claim. First, the United States Attorney for the Western District of

Pennsylvania filed the papers for O’Neill and Mellendick in this case, contending that

they were acting within the scope of their employment when they took the actions that

form the basis for Beckford’s ITED claim. (ECF No. 87 at 9, 35.) The Court accepts this as

the U.S. Attorney’s certification that O’Neill and Beckford were acting within the scope of

their employment. Second, Plaintiffs, who bear the burden of coming forward with

specific facts rebutting the U.S. Attorney’s certification, do not dispute that O’Neill and

Mellendick were acting within the scope of their employment.

Finally, Plaintiffs’ Second Amended Complaint alleges that O’Neill and

Mellendick “actively participated in the denial of Plaintiffs’ right to marry by explicitly

denying the couple the ability to marry and/or by delegating the authority to determine

whether Plaintiffs’ [sic] could exercise their constitutional rights to GEO Group, a

privately owned entity.” (ECF No. 62 at 11.) O’Neill could have only taken these actions

as part of his work for ICE, and Mellendick could have only taken these actions as part of

her work for the BOP’s Privatization Management Branch. If they had attempted to take

these actions in their personal capacities, they would have had neither the ability to

13

influence Plaintiffs’ requests to marry nor any authority to delegate to GEO. Therefore,

the Court is satisfied that O’ Neill and Mellendick’s actions were: (1) of the kind they were

employed to perform, (2) taken within the authorized time and space limits, and (3)

actuated by a purpose to serve the master. Sanders, 232 F.3d at 380 (quoting Restatement

(Second) Agency § 228).

Accordingly, the Court holds that O’Neill and Mellendick were acting within the

scope of their employment when they took the actions underlying Beckford’s ITED claim.

Thus, the Court will substitute the United States for O’Neill and Mellendick with respect

to Count IIT. 28 U.S.C. § 2679(d)(1).

Having determined that the United States is the proper defendant for Beckford’s

TED claim, the Court will now turn to whether it has jurisdiction over Beckford’s claim

against the United States.

D. Beckford Has Failed to Exhaust Her Administrative Remedies

The Liability Reform Act requires, “as a prerequisite to filing suit, presentation of

an administrative tort claim to the appropriate administrative agency within two years.”

Bansal v. Russ, 513 F. Supp. 2d 264, 285 (E.D. Pa. 2007) (citing 28 U.S.C. § 2675(a)). This

requirement is a jurisdictional one—where “no such claim has been filed within two

years, the court lacks subject matter jurisdiction.” Id. (citing Bialowas v. United States, 443

F.2d 1047, 1049 (3d Cir. 1971)); see also Perotti v. United States, 664 F. App’x 141, 143 (d Cir.

2016) (holding that where the plaintiff did not submit an administrative tort claim prior to

filing his complaint, he failed to exhaust his administrative remedies, and the district

court lacked subject matter jurisdiction over his claim).

14

As the Court noted above, with respect to a factual Rule 12(b)(1) motion, which

O’Neill and Mellendick have advanced here, the plaintiff has the burden of proving that

jurisdiction exists. Mortensen, 549 F.2d at 891. Here, Beckford has not alleged that she

submitted an administrative tort claim. Further, she and Davis have not responded to

O’Neill and Mellendick’s assertion that they have failed to exhaust their administrative

remedies, except to contend that this Court should not consider documents that O’Neill

and Mellendick attached to a brief. Therefore, the Court holds that Beckford failed to

exhaust her administrative remedies, and the Court does not have subject matter

jurisdiction over Beckford’s ITED claim against the United States.

Finally, because approximately five years have passed since Davis was released

from MVCC, and because Beckford has taken no action to alert this Court that she did in

fact exhaust her administrative remedies at any time during those five years, the Court

finds that granting her leave to amend would be futile. Therefore, the Court will dismiss

Beckford’s ITED claim against the United States with prejudice. Maclean, 876 F. Supp. at

706.

VI. _‘ Discussion: Motion to Dismiss for Failure to State a Claim

A. Count One: Plaintiffs’ Section 1985(3) Claim

1. The Parties’ Arguments

With respect to Plaintiffs’ claim under Section 1985(3), O’Neill and Mellendick

argue that (1) they are entitled to qualified immunity, (2) the Plaintiffs have failed to plead

a conspiracy with particularity, and (3) it is not clear that Plaintiffs are part of a class

protected by Section 1985. (ECF No. 87 at 18-26.) In like fashion, GEO and Wigen argue

15

that the Plaintiffs have failed to adequately allege the existence of a conspiracy, and have

failed to allege facts indicating that the Defendants took any adverse action toward

Plaintiffs on the basis of Plaintiffs’ membership in a class protected by Section 1985. (ECF

No. 90 at 4-12.)

In response, Davis and Beckford contend that they have alleged sufficient facts

showing the existence of a conspiracy. (ECF No. 96 at 5-7.) For example, Plaintiffs point

to Mellendick rejecting Davis’s request to review MVCC’s denial of his application to

marry Beckford. (Id. at 7.) Further, Plaintiffs argue that the Supreme Court has established

that classifications based on alienage, nationality, or race are subject to close judicial

scrutiny. (Id. at 11-12.) Therefore, because the Defendants denied Davis and Beckford the

right to marry based on Mr. Davis’s status as an alien, the Defendants have violated

Section 1985. (Id. at 13.)

2. The Requirements of Section 1985(3)

Section 1985(3) permits an action to be brought by one injured by a conspiracy

formed “for the purpose of depriving, either directly or indirectly, any person or class of

persons of the equal protection of the laws, or of equal privileges and immunities under

the laws.” 42 U.S.C. § 1985(3). In order to state a claim under § 1985(3), a:

[P]laintiff must allege ... “(1) a conspiracy; (2) for the purpose of depriving, either

directly or indirectly, any person or class of persons of the equal protection of the

laws, or of equal privileges and immunities under the laws; and (3) an act in

furtherance of the conspiracy; (4) whereby a person is injured in his person or

property or deprived of any right or privilege of a citizen of the United States.”

Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir. 2006) (quoting United Bhd. of Carpenters

& Joiners v. Scott, 463 U.S. 825, 828-29 (1983)).

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Although Section 1985(3) applies to private conspiracies, it was “not intended to

provide a federal remedy for ‘all tortious conspiratorial interferences with the rights of

others,’ or to be a ‘general federal tort law.’”” Id. at 135 (Griffin v. Breckenridge, 403 U.S. 88,

101-02 (1971)). Indeed, the Supreme Court has held that because Section 1985(3) “requires

the ‘intent to deprive of equal protection, or equal privileges and immunities,’ a claimant

must allege ‘some racial, or perhaps otherwise class-based, invidiously discriminatory

animus behind the conspirators’ action’ in order to state a claim. Id. (quoting Griffin, 403

US. at 102.) Given this direction from the Supreme Court, the Third Circuit has explained

that there are two aspects to the “class-based invidiously discriminatory animus”

necessary to support a Section 1985(3) claim—the “first is defined by form, and the second

by function.” Id. A plaintiff must allege both that (1) the conspiracy was motivated by

discriminatory animus against an identifiable class and (2) that the discrimination against

that identifiable class was invidious. Id.

With respect to Section 1985(3)’s first requirement, that the conspiracy be

motivated by discriminatory animus against an identifiable class, the Supreme Court has

noted that the word “class” connotes:

[S]omething more than a group of individuals who share a desire to engage in

conduct that the § 1985(3) defendant disfavors. Otherwise, innumerable tort

plaintiffs would be able to assert causes of action under § 1985(3) by simply

defining the aggrieved class as those seeking to engage in the activity that the

defendant has interfered with.

Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 269 (1993). Accordingly, Section

1985(3) “defendants must have allegedly conspired against a group that has an

identifiable existence independent of the fact that its members are victims of the

17

defendants’ tortious conduct.” Farber, 440 F.3d at 136. For example, women or registered

Republicans might be identifiable classes under Section 1985(3), but women seeking an

abortion or persons who support political candidates are not identifiable groups. Id.

Finally, with respect to Section 1985(3)’s second requirement, that the

discrimination against the identifiable class must be invidious, the Supreme Court has

indicated, but not expressly held, that Section 1985(3) was only intended to reach “class-

based animus” against African-Americans and those who championed their cause. United

Broth. Of Carpenters & Joiners of America, 462 U.S. at 836. For its part, the Third Circuit has

emphasized the “irrational and odious’ nature of discrimination motivated by a class’s

immutable characteristics” because such characteristics are determined by birth and bear

no relation to one’s ability to perform or contribute to society. Farber, 440 F.3d at 142. On

that basis, the Third Circuit has held that discrimination based on gender and mental

handicap are protected classes under Section 1985(3). Id. However, the Third Circuit has

declined to expressly hold that discrimination motivated by a mutable characteristic can

never be invidious. Id. (holding, however, that discrimination based on political affiliation

does not qualify for protection under Section 1985(3)).

3. Davis and Beckford Have Not Alleged that Defendants Conspired Against Them

Based on Their Membership in an Identifiable Class

Here, Davis and Beckford contend that the Defendants conspired to prohibit them

from marrying on the basis of their race, national origin, or Davis’s status as a non-citizen

alien. (ECF No. 62 at 11.)

18

Turning first to Davis and Beckford’s claim that Defendants conspired against

them because they are both Black (Id. at 3-4), as noted earlier, the victim of a conspiracy

motivated by racial discrimination may bring a Section 1985(3) claim. Farber, 440 F.3d at

138. However, Davis and Beckford have not sufficiently alleged a conspiracy motivated

by racial discrimination because they state that the Defendants established a “practice and

custom of prohibiting all inmate marriage” at MVCC (ECF No. 62 at 2), but they do not

allege that all inmates at MVCC were of the same race. See Davis, 962 F.3d at 115-16

(holding that Davis and Beckford could not plausibly state a claim for racial

discrimination because they alleged that all inmates at MVCC, regardless of race, were

deprived of the right to marry). In other words, because Davis and Beckford have alleged

that the Defendants denied everyone at MVCC the right to marry, regardless of race, they

have not plausibly alleged that the Defendants took any negative action toward them on

the basis of their race. For purposes of this claim, Davis and Beckford’s “class” is best

defined as a group of individuals who desired to engage in conduct (marriage) that the

Section 1985(3) Defendants disfavored. Accordingly, the Court holds that Davis and

Beckford cannot sustain a claim for a Section 1985(3) conspiracy to deny them their right

to marry based on their race.

Turning next to Davis and Beckford’s claim that Defendants conspired against

them because they are Jamaican (ECF No. 62 at 3-4), and assuming without deciding that

discrimination based on national origin is actionable under Section 1985(3), Davis and

Beckford’s allegations are insufficient for the same reasons as their allegations related to

race. They have not alleged discrimination based on national origin because they contend

19

that the Defendants denied all inmates at MVCC the right to marry, but they do not allege

that all inmates at MVCC were Jamaican. See Davis, 962 F.3d at 116 (holding that Davis

and Beckford could not plausibly state a claim for discrimination based on national origin

where they alleged that all inmates at MVCC, regardless of national origin, were denied

the right to marry). Thus, the Court holds that Davis and Beckford cannot sustain a claim

for a Section 1985(3) conspiracy to deny them their right to marry based on their national

origin.

Turning lastly to Davis and Beckford’s claim that Defendants conspired against

them because Davis is a non-citizen alien (ECF No. 62 at 11), the Court finds that this

allegation is also insufficient to state a claim under Section 1985(3).

Davis and Beckford allege that from the time GEO acquired MVCC and began

receiving federal funding, no inmate at the prison has been allowed to marry. (Id. at 9.)

Further, they state that “[rloughly 98% (if not all) of the inmates housed at MVCC are

faced with an impending immigration matter or have been ordered deported from the

United States.” (Id. at 10.) While these allegations get Davis and Beckford closer to

plausibly stating a claim for a conspiracy to discriminate based on alien status than do

their allegations related to race and national origin, they still fall short for two reasons.

First, Davis and Beckford contend that since GEO acquired MVCC and began receiving

federal funding, no inmate has been allowed to marry, but they do not allege that 98% of

inmates at MVCC were non-citizen aliens going back in time to the date when GEO group first

acquired MVCC. Moreover, “roughly” 98 % of inmates is not 100% of inmates—Davis and

Beckford’s Second Amended Complaint leaves open the possibility that Defendants

20

barred non-citizen inmates and some percentage of citizen inmates alike from marrying.

Both of these factual allegations lead this Court to conclude that Davis and Beckford have

not plausibly stated that the Defendants conspired against them because of their

membership in a class of non-citizen aliens. Once again, their “class” for purposes of this

claim is best described as an amorphous group of individuals, housed at MVCC, who

wanted to engage in conduct (marriage) that the Section 1985(3) Defendants disfavored.’

In short, the Court holds that Davis and Beckford have not plausibly alleged that

any conspiracy that did arise among Defendants was motivated by discriminatory animus

against an identifiable class. Therefore, the Court will dismiss Davis and Beckford’s

Section 1985(3) claim.

? Even if Davis and Beckford had alleged that all inmates at MVCC were lawfully admitted non-

citizen aliens from the time that GEO acquired the prison, the Court would still dismiss Plaintiffs’

Section 1985(3) claim on the ground that alienage status is not a protected class under Section 1985(3).

While the Third Circuit has not expressly held that discrimination based on a mutable characteristic

can never be invidious, the immutability of a class’s characteristics is the touchstone of its

determination of whether a class is protected by Section 1985(3). Farber, 440 F.3d at 142. Unlike the

classes that the Third Circuit has held can advance a claim under Section 1985(3) because they are

defined by immutable characteristics (African Americans, women, and those with mental

handicaps), id., non-citizen alien individuals can, generally speaking, change their alienage status

through naturalization if they follow the legally-prescribed process. See, e.g., Kungys v. U.S., 485 U.S.

759, 764 (1988) (noting how an individual from Germany came to the United States on a visa and

then was naturalized as a citizen). Therefore, because alienage status is mutable, the Court finds that

discrimination based on that status is not sufficiently invidious to warrant the protection of Section

1985(3). See also, McCleester v. Mackel, No. 06-120], 2008 WL 821531 at *28 (W.D. Pa. Mar. 27, 2008)

(noting that the “Court cannot place singular reliance on the Supreme Court’s Equal Protection

Clause jurisprudence in determining whether a given class is entitled to protection under §

1985(3).”).

21

B. Count Two: Plaintiffs’ RFRA Claim

1. The Parties’ Arguments

With respect to Plaintiffs’ claim under RFRA, O'Neill and Mellendick again argue

that they are entitled to qualified immunity. (ECF No. 87 at 18-22.) Further, O’Neill and

Mellendick argue that Plaintiffs have failed to demonstrate that they were personally

involved in any substantial burden that was placed on Plaintiffs’ exercise of their faith.

(Id. at 26-28.) For their part, GEO and Wigen contend that they were not federal actors,

and so the requirements of RFRA did not govern their conduct. (ECF No. 90 at 12.)

Finally, even if they were subject to RFRA, GEO and Wigen state that their actions did not

substantially burden Plaintiffs’ exercise of their faith. (Id. at 14.)

In response, Davis and Beckford argue that GEO and Wigen were federal actors

subject to RFRA, and that the Third Circuit's decision in Davis supports their position.

(ECF No. 96 at 16.) Further, Plaintiffs contend that Defendants did substantially burden

the exercise of their faith because they not only limited their ability to get married, but

they prevented them from doing so altogether. (Id. at 18-19.) Finally, Davis and Beckford

contend that both O’Neill and Mellendick were personally involved in violating their

right to exercise their faith. (Id. at 20-21.) For example, Mellendick was aware of the

deprivation of Plaintiffs’ rights and still refused to do anything about MVCC’s denial of

Plaintiffs’ right to marry. (Id. at 20.)

22

2. GEO and Wigen’s Actions Were Governed by RFRA

RFRA prohibits the Government from:

“{S}ubstantially burden[ing] a person’s exercise of religion even if the burden

results from a rule of general applicability,” unless the “Government” can

“demonstrate[] that application of the burden to the person—(1) is in furtherance

of a compelling interest; and (2) is the least restrictive means of furthering that

compelling governmental interest.”

Mack v. Warden Loretto FCI, 839 F.3d 286, 301 (3d Cir. 2016) (quoting 42 U.S.C. § 2000bb-1).

RFRA defines “government” as “a branch, department, agency, instrumentality, and

official (or other person acting under color of law) of the United States, or of a covered

entity.” 42 U.S.C. § 2000bb-2.

Turning first to whether GEO and Wigen were government actors that were

subject to RFRA, the Court notes that GEO obtained its authority to operate MVCC

pursuant to a contract with the United States, and it was supervised by the BOP in

operating the prison. (ECF No. 62 at 6.) The fact that GEO and Wigen, as the warden of

MVCC, derived their authority over the prisoners under their charge from the United

States strongly indicates that GEO was an instrumentality and Wigen an official of the

United States. 42 U.S.C. § 2000bb-2. This notion is bolstered by the fact that the Third

Circuit has already all but held that GEO and Wigen were federal actors, at least for

purposes of analyzing Plaintiffs’ Bivens claim. Davis, 962 F.3d at 112 (noting that the GEO

Defendants operated private prisons on behalf of the federal government and that “[t]he

performance of that function certainly appears to be the exercise of a right having its

source in federal authority.”). Therefore, the Court holds that GEO and Wigens were

government actors subject to RFRA.

23

Having determined that GEO and Wigen constitute the “government” for

purposes of RFRA, the Court now turns to whether Plaintiffs have alleged a prima facie

violation of that statute by all Defendants.

3. Davis and Beckford Have Not Alleged That Defendants Substantially Burdened the

Exercise of Their Religion

To establish a prima facie case under RFRA, Davis and Beckford must allege that

the government (1) substantially burdened (2) a sincere (3) religious exercise. Mack, 839

F.3d at 304. Here, Defendants do not dispute that Davis and Beckford getting married

would have constituted a sincere exercise of their faith. (ECF No. 87 at 26-28; ECF No. 90

at 14-15.) Accordingly, the Court must determine whether Defendants’ actions

substantially burdened Davis and Beckford’s ability to exercise their Christian faith.

The Third Circuit has explained that a “substantial burden exists where (1) ‘a

follower is forced to choose between following the precepts of his religion and forfeiting

benefits otherwise generally available to other inmates versus abandoning one of the

precepts of his religion in order to receive a benefit;” or (2) ““the government puts

substantial pressure on an adherent to substantially modify his behavior and to violate his

beliefs.’"” Mack, 839 F.3d at 304 (quoting Washington v. Klem, 497 F.3d 272, 280 (3d Cir.

2007)).

Plaintiffs’ allegation that Defendants substantially burdened the exercise of their

faith boils down to their statement that they are “devout Christians” who “viewed their

marriage as an expression of that faith.” (ECF No. 62 at 16.) Plaintiffs argue that

24

Defendants’ denial of their right to marry therefore constitutes a substantial burden under

the second prong of the Third Circuit's test. (ECF No. 96 at 18.)

Like Defendants, this Court does not doubt that Davis and Beckford sincerely

wanted to marry, and sincerely viewed their marriage as an expression of their faith.

However, the statement that they wanted to express their faith through marriage does not

rise to the level of a substantial burden because they have not alleged that the Defendants

put pressure on them to “substantially modify [their] behavior and to violate [their] beliefs.”

Indeed, by way of example, Davis and Beckford do not allege that Defendants compelled

them to stop engaging in religious conduct that their faith prescribed. See Mack, 839 F.3d

at 304 (finding that an inmate sufficiently alleged a substantial burden at the motion to

dismiss stage where prison officials may have influenced him to stop praying at work, an

action that could have been deemed a “betrayal” of his religious beliefs); Klem, 497 F.3d at

281-82 (finding a substantial burden where a prison prevented an inmate from reading

the daily number of books that his faith required). Nor do they allege that Defendants put

them to the choice of either engaging in conduct that their faith prohibits or paying a

heavy price. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 720 (2014) (holding that a

burden was clearly substantial where the government compelled an entity to either

provide health insurance that covered certain methods of birth control, an activity that

“seriously violat[ed] [the company’s] religious beliefs,” or pay a tax of approximately

$475 million per year).

Because Davis and Beckford have not alleged that Defendants pressured them into

substantially modifying their behavior and violating their beliefs, the Court holds that

25

they have not alleged a substantial burden on their religious exercise. Accordingly, the

Court will dismiss Davis and Beckford’s RFRA claim.

C. Count Three: Beckford’s ITED Claim

1. The Parties’ Arguments

Turning to Beckford’s ITED claim, because the Court has determined that the

United States is the proper defendant for that claim, and because the Court has

determined that it does not have subject matter jurisdiction over Beckford’s claim against

the United States, see supra Section V, the Court will confine its analysis to Beckford’s TED

claim against GEO and Wigen.

GEO and Wigen contend that Beckford has not adequately alleged a claim for IED

because she has not stated that she has been diagnosed with severe emotional distress,

which is necessary to sustain a claim for IED under Pennsylvania state law. (ECF No. 90

at 15.) Further, they argue that Beckford has not alleged facts that would constitute

“outrageous” or “extreme” actions on the part of GEO or Wigen. (Id. at 15-16.)

In response, Beckford argues that because she resided in Georgia at all times

relevant to this action, Georgia law should govern her claim. (ECF No. 96 at 32.)

Moreover, she contends that even under Pennsylvania law, she is not required to offer the

statements of experts at the pleading stage, and she has alleged that GEO and Wigen

engaged in extreme and outrageous conduct because they denied her the ability to

exercise a fundamental constitutional right. (Id. at 31.)

26

2, Pennsylvania Law Governs Beckford’s ITED Claim

The Court must first determine whether Pennsylvania or Georgia law governs

Beckford’s ITED claim.

A federal court “exercising federal question jurisdiction over a federal claim and

supplemental jurisdiction over related state law claims applies the choice-of-law rules of

the state of the forum.” Neopart Transit, LLC v. Management Consulting, Inc., No. 16-3103,

2017 WL 714043, at *11 (E.D. Pa. Feb. 23, 2017); see also Rohm and Hass Co. v. Adco Chem.

Co., 689 F.2d 424, 429 (3d Cir. 1982) (stating that “a federal court whose jurisdiction over a

state claim is based on diversity ... or on pendency to a federal claim ... must apply the

conflicts of law principles of the forum state.”). Therefore, the Court will apply

Pennsylvania’s choice of law principles to determine whether Pennsylvania or Georgia’s

law governs Beckford’s ITED claim.

In conducting a choice of law analysis, Pennsylvania courts first consider whether

there is a “true conflict” between the laws of the states with an interest in the case.

Melmark, Inc. v. Schutt by and Through Schutt, 206 A.3d 1096, 1104 (Pa. 2019). If a true

conflict exists between the laws of those states, Pennsylvania courts then examine “which

state has the most significant relationship to the occurrence and the parties.” Id. at 1105—

07.

At the first step of the analysis, the Court notes that it appears that Pennsylvania

law requires physical injury for IED claims, while Georgia law does not. Compare Reedy v.

Evanson, 615 F.3d 197, 231 (3d Cir. 2010) (noting that Pennsylvania law requires a plaintiff

to have suffered some type of resulting physical harm in order to bring a claim for ITED),

27

with Jones v. Fayette Family Dental Care, Inc., 718 5.E.2d 88, 90 (Ga. Ct. App. 2011) (noting

that Georgia allows a plaintiff to bring a claim for ITED in the absence of physical impact

to the plaintiff if the conduct in question was directed at the plaintiff). Therefore, the

Court finds that there is a true conflict between Pennsylvania's law pertaining to ITED and

Georgia’s law pertaining to ITED. Doe v. Garabedian, No. 19-1539, 2019 WL 4885959, at *4

(E.D. Pa. Oct. 2, 2019) (holding that there was a true conflict where Pennsylvania law

required physical injury for ITED claims and the other three states with an interest in the

action did not) order vacated in part on reconsideration, No. 19-1539, 2020 WL. 1244126 (E.D.

Pa. Mar. 13, 2020) (vacating a separate portion of the court’s earlier order).

Turning to the second step in the analysis— whether Pennsylvania or Georgia has

amore significant relationship to the occurrence and the parties—the “overriding

consideration is which state has ‘a priority of interest in the application of its rule of law’

so as to vindicate the policy interests underlying that law.” Melmark, 206 A.3d at 732

(quoting McSwain v. McSwain, 215 A.3d 677, 682 (Pa. 1966)). This analysis tends to be fact-

sensitive. Id. In conducting this analysis, the Pennsylvania Supreme Court considers

factors such as: (1) the relationship between the affected parties and the states with an

interest in the action, (2) where the relevant actions took place, and (3) the location of the

harm. Id. at 732-35.

Regarding the relationship between the affected parties and the states with an

interest in the action, while Beckford was a resident of Georgia during all times relevant

to her claim, (ECF No. 62 at 18), Wigen worked at MVCC (which was in Pennsylvania),

(ECE No. 3 at 4), a fact that indicates he may well have lived in that state.

28

Regarding the location of the harm, although Beckford resided in Georgia, she

does not state that she suffered harm within that state in any of her three complaints. (See

ECE Nos. 4, 6, 62.) Further, Beckford regularly traveled from Georgia to Pennsylvania to

visit Davis (ECF No. 62 at 3.). Beckford’s Second Amended Complaint thus leaves open

the possibility that Davis informed her that the couple could not marry while she was in

Pennsylvania, which may well have caused her to suffer emotional distress in that state.

Therefore, Beckford’s allegations with respect to the relationship between the

affected parties and the states with an interest in the action, as well as the location of her

harm, do not tip the scale in favor of either Pennsylvania or Georgia.

Lastly, regarding where the relevant actions took place, most, if not all of GEO and

Wigen’s allegedly tortious actions occurred in Pennsylvania. By way of overview, Davis

submitted his written request to marry Beckford from within MVCC, and therefore, from

within Pennsylvania. (Id. at 7.) Wigen, who worked at MVCC, sent Davis, who was

housed at MVCC, a response indicating that Davis and Beckford would not be permitted

to marry. (Id.) All of this took place within Pennsylvania. Finally, Beckford attempted to

contact MVCC officials about marrying Davis, but her request was denied, presumably

from inside the state of Pennsylvania. (Id. at 4.) And, tellingly, Beckford does not allege

that GEO or Wigen committed a single action related to her ITED claim inside the state of

Georgia. (See ECF Nos. 4, 6, 62.)

Courts applying Pennsylvania choice of law provisions often determine which

state’s law applies by examining where the alleged tortious conduct in the case occurred.

Marks v. Redner’s Warehouse Markets, 136 A.3d 984, 990-92 (Pa. Super. Ct. 2016) (examining

29

three different cases, all of which held that the law of the state where the tort occurred

governed the resolution of the claim). The fact that most, if not all, of GEO and Wigen’s

allegedly tortious conduct in this case occurred inside Pennsylvania, and none of it

occurred inside Georgia, pushes this Court strongly toward the conclusion that

Pennsylvania law governs Beckford’s ITED claim.

Finally, although Davis did not expressly choose to go to MVCC, GEO, in

operating a prison in Pennsylvania, and Wigen, in choosing to work within that state,

were entitled to “rely on the duties and protections” provided by Pennsylvania tort law.

Troxel v. A.J. duPont Institute, 636 A.2d 1179, 1181 (Pa. Super. Ct. 1994) (holding that

because the defendant-hospital “was required to follow and abide by the laws of

Delaware ... [it was] entitled to rely on the duties and protections provided by Delaware

law.”). This Court is reluctant to require prison officials operating a prison within one

state, and acting primarily with an eye toward a prisoner housed within that state, to

check the laws of other states before acting because a relative or loved one of the prisoner

might be impacted by their actions.

For all of these reasons, the Court holds that Pennsylvania has the most significant

relationship to the occurrence and the parties. Therefore, the Court will apply

Pennsylvania law to Beckford’s claim.

3. Beckford Has Not Stated a Claim for IIED Because She Has Not Alleged Any

Physical Harm

In order to state a plausible claim for intentional infliction of emotional distress

under Pennsylvania law, a plaintiff must allege sufficient facts demonstrating that: “(1)

30

the defendant’s conduct was extreme and outrageous; (2) the defendant’s conduct caused

the plaintiff severe emotional distress; and that (3) the defendant acted intending to cause

the person such distress or with knowledge that such distress was substantially certain to

occur.” Ghrist v. CBS Broadcasting, Inc., 40 F. Supp. 3d 623, 630 (W.D. Pa. 2014). Liability

for intentional infliction of emotional distress “’/has been found only where the conduct

has been so outrageous in character, and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a

civilized community.’”” Reedy, 615 F.3d at 231-32 (quoting Field v. Phila. Elec. Co., 565, A.2d

1170, 1184 (Pa. Super. Ct. 1989)). In addition, a plaintiff must allege “that he or she

‘suffer[ed] some type of resulting physical harm due to the defendant's outrageous

conduct,’ which must be supported by competent medical evidence.” Ghrist, 40 F. Supp.

3d at 630 (quoting Reedy, 615 F.3d at 231); see also Fewell v. Besner, 664 A.2d 577, 582 (Pa.

Super. Ct. 1995) (“A plaintiff must also show physical injury or harm in order to sustain a

cause of action for intentional infliction of emotional distress.”).

8 The Court notes that in 2016, the Pennsylvania Superior Court indicated that the Pennsylvania

Supreme Court has never held that a claimant must allege physical harm as part of a claim for

TIED. Gray v. Huntzinger, 147 A.3d 924, 928 n. 3 (Pa. Super. Ct. 2016) (calling the court’s decision in

Fewell a “misread[ing]” of the Pennsylvania Supreme Court's seminal decision in the realm of

ITED). However, a decision of a panel of the Superior Court remains viable precedent until it is

overturned by an en banc panel of the Superior Court, or by a decision of the Pennsylvania

Supreme Court. Haun v. Cmty. Health Systems, Inc., 14 A.3d 120, 125 n. 1 (Pa. Super. Ct. 2011). This

Court is not aware of either a decision by an en banc panel of the Superior Court or a decision of the

Pennsylvania Supreme Court overturning Fewell. Therefore, because the Pennsylvania Supreme

Court has not clearly spoken on this issue; because Fewell remains viable precedent, even in light of

Gray; and because the Third Circuit has indicated, in line with Fewell, that physical harm is an

element of a claim for ITED, Reedy, 615 F.3d at 231, this Court finds that Beckford must allege

physical harm in order to recover for ITED. See also Miler v. County of Centre, 702 F. App’x 69, 74n. 7

(3d Cir. 2017) (holding that the plaintiff's IIED claim failed because she did not allege physical

harm).

31

Here, Beckford has consistently stated that GEO and Wigen’s actions caused her

emotional distress. (ECF No. 3 at 30; ECF No. 6 at 14; ECF No. 62 at 4.) Beckford also

stated that her injuries included “stress, anxiety, hospitalization, and long term medical

issues.” (ECF No. 62 at 19.) However, Beckford has never alleged that she experienced any

resulting physical harm due to GEO and Wigen’s conduct. Further, Beckford has not

alluded to any “competent medical evidence” of any harm that she experienced —whether

physical or emotional. Ghrist, 40 F. Supp. 3d at 631. Therefore, because Beckford has not

alleged that she suffered any physical harm as a result of GEO and Wigen’s conduct, and

because she has not alluded to any competent medical evidence of any physical or

emotional harm, the Court holds that she has not stated a valid claim for TED under

Pennsylvania law. Accordingly, the Court will dismiss Beckford’s ITED claim.

D. Counts Four and Five: Plaintiffs’ Section 1983 Claims

1. The Parties’ Arguments

With respect to Plaintiffs’ claims under Section 1983, O’Neill and Mellendick

contend that they were acting under color of federal Jaw, not state law. (ECF No. 87 at 28.)

Therefore, they argue that they cannot be held liable under Section 1983. (Id. at 28-29.)

GEO and Wigen advance a substantially similar argument. (ECF No. 90 at 16-17.)

In response, Davis and Beckford argue that since GEO and Wigen contend that

they were not acting under color of federal law, and they must have been acting under

color of some law in order to have denied Davis and Beckford the right to marry, it

follows that they must have been acting under color of state law. (ECF No. 96 at 32.)

Further, Davis and Beckford contend that GEO and Wigen were acting under color of

32

state law because the nature and character of their actions demonstrates as much. (Id. at

33.) Finally, Davis and Beckford state that because GEO and Wigen were acting under

color of state law, and because O’Neill and Mellendick conspired with GEO and Wigen to

deny Davis and Beckford the right to marry, O'Neill and Mellendick were also acting

under color of state law. (Id. at 34.)

2. The Requirements of Section 1983

Plaintiffs bring their claims at Count IV and Count V pursuant to 42 U.S.C. § 1983.

(ECF No. 62 at 19-21.) Section 1983 “imposes civil liability upon any person who, acting

under the color of state law, deprives another individual of any rights, privileges, or

immunities secured by the Constitution or laws of the United States.” Shuman ex rel.

Shertzer v. Penn Manor School Dist., 422 F.3d 141, 146 (3d Cir. 2005) (citing Gruenke v. Seip,

225 F.3d 290, 298 (3d Cir. 2000)). To establish valid claims under § 1983, “the plaintiff must

demonstrate that the defendants, while acting under color of state law, deprived him of a

right secured by the Constitution or the laws of the United States.” Id. (citing Mark v.

Borough of Hatboro, 51 F.3d. 1137, 1141 (3d Cir. 1995)). Indeed, claims “under Section 1983

require action taken under color of state, not federal law.” Davis, 962 F.3d at 115 (holding

that the Plaintiffs’ Section 1983 claim could not stand because all defendants were alleged

to have been federal actors or to have acted under color of federal law).

3. All Defendants Were Acting Under Color of Federal Law

Here, as noted earlier, GEO operated MVCC pursuant to a contract with the United

States and under the supervision of the BOP. See supra Section VI.B.2. Therefore, GEO, and

Wigen as its employee, only had authority to prevent Davis and Beckford from marrying

33

because the federal government had delegated that authority to GEO, and, in turn, Wigen.

Accordingly, both GEO and Wigen were federal actors.

Further, O’Neill’s alleged participation in the conspiracy to deny inmates at MVCC

the right to marry was in his capacity as “the official overseeing deportation from that

facility,” which he carried out as the “Assistant Field Officer Director of the Philadelphia

Field Office of ICE, DHS,” and Mellendick’s alleged participation was in her capacity as

“the administrator of the BOP Privatization Branch, which oversees private prisons such as

MVCC.” (ECF No. 62 at 10.) Both of these individuals were therefore acting under the color

of federal law.

Regarding Davis and Beckford’s contention that even if GEO and Wigen were

federal officials, they nonetheless acted pursuant to state law, the case to which Davis and

Beckford refer this Court provides that “courts finding that a federal official has acted under

color of state law have done so only when there is evidence that federal and state officials

engaged in a conspiracy or ‘symbiotic’ venture to violate a person’s rights under the

Constitution or federal law.” Strickland on Behalf of Strickland v. Shalala, 123 F.3d 863, 867

(6th Cir. 1997). Here, GEO and Wigen did not conspire with state officials because O’Neill

and Mellendick were not state officials. In like fashion, O’Neill and Mellendick did not

conspire with state officials because GEO and Wigen were not state officials. Therefore,

none of the Defendants were acting under color of state law.

For all of the foregoing reasons, the Court holds that all Defendants acted under

color of federal law. Accordingly, none of them can be liable under Section 1983. Davis, 962

34

F.3d at 115. Therefore, the Court will dismiss Counts IV and V of Plaintiffs’ Second

Amended Complaint.

VII. Scope of Dismissal

When a district court dismisses one or more claims pursuant to Rule 12(b)(6), the

court must permit the plaintiff the opportunity to amend the complaint unless amendment

would be inequitable or futile. Phillips v. Cnty. Of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008)

(citation omitted). Here, the Court finds that Counts I, IL, IV, and V of the Second Amended

Complaint, as analyzed above, cannot be cured by amendment. Therefore, the Court will

dismiss those counts with prejudice without leave to amend. In doing so, the Court notes

that Plaintiffs have already filed three Complaints. (ECF Nos. 3, 6, 62.)

However, the Court will grant the Plaintiffs leave to amend with respect to their

TED claim (Count II). Because the Court lacks subject matter jurisdiction over Plaintiffs’

IED claim against the United States, it will only permit the Plaintiffs to amend their TED

claim as against GEO and Wigen.

An appropriate order follows.

35

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

BRIAN A. DAVIS and FREDRICKA K. _) Case No. 3:16-cv-26

BECKFORD, )

) JUDGE KIM R. GIBSON

Plaintiffs, )

)

v. )

)

THE GEO GROUP, INC.; GEORGE C. _)

WIGEN, FORMER WARDEN, )

MOSHANNON VALLEY )

CORRECTIONAL CENTER; DONNA _ )

MELLENDICK, FORMER )

ADMINISTRATOR, BUREAU OF )

PRISONS PRIVATIZATION )

MANAGEMENT BRANCH; and )

DAVID O'NEILL, ASSISTANT FIELD _ )

DIRECTOR, DEPARTMENT OF )

HOMELAND SECURITY, )

)

Defendants. )

ORDER

oy c +h

AND NOW, this 4) day of October, 2021, upon consideration of Defendants David

O’Neill and Donna Mellendick’s Motion to Dismiss Plaintiffs’ Second Amended Complaint

for Lack of Subject Matter Jurisdiction and Failure to State a Claim (ECF No. 86), IT IS

HEREBY ORDERED that the motion is GRANTED.

IT IS FURTHER ORDERED that upon consideration of Defendants Geo Group,

Inc. and G.C. Wigen’s Motion to Dismiss Plaintiffs’ Second Amended Complaint, (ECF No.

89), the motion is GRANTED.

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IT IS FURTHER ORDERED that Counts I, IL, IV, and V of Plaintiffs’ Second

Amended Complaint are DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that the Plaintiffs’ WED claim (Count ID), as against

GEO and Wigen, is DISMISSED WITHOUT PREJUDICE. Plaintiffs shall have until

November 22, 2021 to file a Third Amended Complaint.

BY THE COURT:

Cb Amey PS %

4 ed ‘ > A OA

eS KW.

Aan ose Se ~

KIM R. GIBSON

UNITED STATES DISTRICT JUDGE

37