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Smith v. Parcell

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

March 24, 2015

SGT. PARCELL, et al., Defendants.


JAMES R. SPENCER, Senior District Judge.

MKevin Leon Smith, a Virginia inmate proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983 action.[1] By Memorandum Order entered October 15, 2014, the Court directed Smith to file a particularized complaint because "Plaintiff [did] not identify the particular constitutional right that was violated by the defendant's conduct." (ECF No. 13, at 1.) Smith filed a Particularized Complaint that adds Defendant Wolfas a party to the action, and partially corrects the deficiency identified by the Magistrate Judge. ("Complaint, " ECF No. 16.) Smith contends that, inter alia. Defendants Parcell and Wolf, officers with the Chesapeake Sheriffs Department, violated Smith's rights by forcibly taking a DNA sample from Smith. The matter is before the Court on 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 DISMISS the action.


"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 plaintiffs well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. MylanLabs., Inc. v. Matkari, 1 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 consideringa 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. Iqbal, 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, the plaintiff must "allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.l 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); lodice 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]

1) On or about January 25th, 2014, I was brought down to the booking/intake department of the Chesapeake City Jail to meet with a Detective Samuel Jerrome of the Virginia Beach Police Department.
2) Once I arrived at the booking/intake department and Mr. Jerrome identified himself as a police officer and stated he wanted to interview me and retrieve a DNA (buccal swab) sample. I immediately requested to have my attorney present and have medical personnel present to retrieve the DNA (buccal swab) method sample.
3) Mr. Jerrome turned and went to the Sgt's desk and brought over Deputy Sargent Parcell and Deputy Officer Wolf.
4) Sargent Parcell pulled out his taser gun and pointed it at me and said that I had no choice in this matter but to comply and if I choose to continue to request my lawyer that he was going to tase me and then his Officer Deputy Wolf was going to take it from me.
5) I continued again requesting my lawyer present, and then I was assault when I was knocked to the ground and Deputy Wolf went inside my mouth forcibly and took multiple cotton swab samples.
a) In section 4), Sargent Parcell threatened force upon me if I didn't follow his command. Under the Sheriffs Department's care, I'm expected not to be harmed or threatened bodily harm... I should be protected from all... foreign threats or physical harm. (Not sure ...

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