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Smith v. Weir

United States District Court, E.D. Virginia, Richmond Division

January 16, 2015

DAVID B. WEIR, et al., Defendants.


JAMES R. SPENCER, Senior District Judge.

Kevin Leon Smith, a Virginia inmate proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983 action.[1] Smith contends that, inter alia, Defendants Weir and Bender, detectives with the Chesapeake Police Department, violated Smith's rights by forcibly taking a DNA sample from Smith. The matter is before the Court on Defendants' Motion to Dismiss and the Court's authority to dismiss inadequate claims by prisoners under 28 U.S.C. § 1915(e)(2).[2] For the reasons stated below, the Court will GRANT the Motion to Dismiss.


"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citation omitted). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952. This principle applies only to factual allegations, however, and "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. lqbal, 556 U.S. 662, 679 (2009).

The Federal Rules of Civil Procedure "require[ ] only a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (second alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Plaintiffs cannot satisfy this standard with complaints containing only "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Id. (citations omitted). Instead, a plaintiff must allege facts sufficient "to raise a right to relief above the speculative level, " id. (citation omitted), stating a claim that is "plausible on its face, " id. at 570, rather than merely "conceivable." Id. "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." Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp., 550 U.S. at 556). In order for a claim or complaint to survive dismissal for failure to state a claim, therefore, the plaintiff must "allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002); Iodice v. United States, 289 F.3d 270, 281 (4th Cir. 2002)). Lastly, while the Court liberally construes pro se complaints, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), it does not act as the inmate's advocate, sua sponte developing statutory and constitutional claims the inmate failed to clearly raise on the face of his complaint. See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J., concurring); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).


The sum of Smith's allegations is as follows:[3]

Around 8:00 p.m., on December 10, 2012, I Kevin Leon Smith was taken to the booking intake section of the Chesapeake City Jail. I was placed in a holding cell and (2) men came in the cell and identified theirselves [sic] as Detective Bender and Detective David Weir of the Chesapeake Police Department. I said that I wouldn't make any statements at this time without my lawyer present and I was reserving my Miranda [4] rights. Detective Weir said, "That was fine, " but he wanted to show me a few things and that everything was off the record. I still stated that I didn't want to look at anything he had to show or listen to anything he had to say. Detective Weir said that he was going to speak anyway and show me pictures. Detectives Bender and Weir started talking about what I was being charged with and other various questions. I simply kept my silence, and then Detective Weir told me that he needed to retrieve my DNA. I said no, I will not submit any DNA sample without my lawyer present. Detective Weir stated that he didn't care about that, and that he was going to get my DNA by choice or by force. When I refused again to give my DNA, Detective Bender and Detective Weir then forced theirselves [sic] upon myself and... retriev[ed] my DNA from [my] mouth orally. Afterwards, I complained to jail authorities and that they said they couldn't do anything about a police matter. So I then wrote a complaint to the Internal Affairs Division of the Chesapeake Police Department. This case is still pending.
My 5th Amendment rights was [sic] violated when I stated that I'm reserving my Miranda rights and I requested a lawyer present for my DNA sample. I was never shown a search warrant for the DNA sample.
I was assaulted by Detectives Bender and Weir while being handcuffed in a holding cell.

(Compl. 5, ECF No. 1.) Smith demands monetary damages and injunctive relief. ( Id. at 6.)

The Courts construes Smith to raise the following claims for relief:

Claim 1 Defendants violated Smith's rights under the Fourth Amendment[5] by taking Smith's DNA sample without a warrant.[6]

Claim 2 Defendants violated Smith's Fifth Amendment rights by: (a) forcibly taking a DNA sample from Smith; and (b) continuing to speak to Smith after ...

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