United States District Court, E.D. Virginia, Richmond Division
Harnnah Lauck, United States Distinct Judge.
Michael Allen, a Virginia prisoner proceeding pro se
and in forma pauperis, brings this action pursuant
to 42 U.S.C. § 1983. The matter is before the Court for
evaluation pursuant to 28 U.S.C. § 1915(e)(2). For the
reasons that follow, the action will be DISMISSED AS MOOT.
Standard for Motion to Dismiss for Failure to State a
individual is proceeding in forma pauperis, this
Court must dismiss the action if the Court determines the
action (1) "is frivolous" or (2) "fails to
state a claim on which relief may be granted." 28 U.S.C.
§ 1915(e)(2). The first standard includes claims based
upon "'an indisputably meritless legal theory,
'" or claims where the "'factual
contentions are clearly baseless.'" Clay v.
Yates, 809 F.Supp. 417, 427 (E.D. Va. 1992) (quoting
Neitzke v. Williams, 490 U.S. 319, 327 (1989)),
aff'd, 36 F.3d 1091 (4th Cir. 1994). The second
standard is the familiar standard for a motion to dismiss
under Fed.R.Civ.P. 12(b)(6).
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint; importantly, it does not resolve contests
surroxinding the facts, the merits of a claim, or the
applicability of defenses." Republican Party of KC.
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5 A
Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 1356 (1990)). 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. 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. Iqbal,
556 U.S. 662, 679 (2009).
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) (omission 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 assert facts that rise above speculation and
conceivability to those that "show" a claim that is
"plausible on its face." Iqbal, 556 U.S.
at 678-79 (quoting Fed.R.Civ.P. 8(a)(2); Twombly,
550 U.S. at 570). "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. at 678 (citing
Twombly, 550 U.S. at 556). Therefore, 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.I. DuPont de Nemours & Co., 324 F.3d 761, 765
(4th Cir. 2003) (citations omitted). 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).
Summary Of Allegations
filed the present action while incarcerated in the Riverside
Regional Jail. (Compl. 4.) Allen alleges:
I am a Hepatitis C carrier and requested to be treated for
Hepatitis C. Lab tests were taken June 29th, 2015, to confirm
my having Hepatitis C. . . . On July 17th, 2015, I was seen
by Doctor Wright and told by her I would not receive
treatment for Hepatitis C. Hepatitis C is a chronic,
life-threatening disease to which my being denied treatment
amounts to cruel and unusual punishment.
(Id. at 5.) Allen seeks injunctive relief in the
form of treatment for his Hepatitis C. Since the filing of
the Complaint, Allen was transferred from the Riverside
Regional Jail to the Nottoway Correctional Center. (ECF No.
14, at 1.)
a general rule, a prisoner's transfer or release from a
particular prison moots his claims for injunctive and
declaratory relief with respect to his incarceration
there." Rendelman v. Rouse, 569 F.3d 182, 186
(4th Cir. 2009) (citing Incumaa v. Ozmint, 507 F.3d
281, 286-87 (4th Cir. 2007); see Williams v.
Griffin, 952 F.2d 820, 823 (4th Cir. 1991); Taylor
v. Rogers, 781 F.2d 1047, 1048 n.l (4th Cir.
1986)). Allen's only request for relief pertains to
obtaining Hepatitis C treatment from K. Wright, a physician
at the Riverside Regional Jail and the only defendant listed
in the Complaint. As Allen is no longer incarcerated at the
Riverside Regional Jail, the action will be DISMISSED AS
appropriate Order shall accompany ...