United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski, United States District Judge.
David Haga, a Virginia inmate proceeding pro se, filed a
civil rights complaint pursuant to 42 U.S.C. § 1983.
Plaintiff names the New River Valley Regional Jail
("Jail") as the defendant and filed a motion to
join the Jail's Superintendent, Gerald McPeak, as another
defendant. This matter is before the court for screening,
pursuant to 28 U.S.C. § 1915A. After reviewing
Plaintiffs submissions, the court grants the motion to join
and dismisses the complaint without prejudice for failing to
state a claim upon which relief may be granted.
inmate at the Jail broke Plaintiffs jaw and nose around 5:00
p.m. on February 15, 2016. Plaintiff was escorted to the
Jail's medical department where he did not receive any
medical assistance until 10:30 p.m. when a nurse confirmed
the injuries but did not provide any pain relief. Plaintiff
was not transported to a hospital's emergency department
until approximately 2:00 p.m. the next day. The emergency
room physician also confirmed the injuries and prescribed an
antibiotic, a liquid diet, and a prescription for 7.5 ml of
Norco, which is a combination of acetaminophen and
hydrocodone, every six hours.
returned to the Jail by 4:30 p.m. and was told his pain
medication would not be provided until the next day because
the pharmacy that Jail used was "about to close."
When he did receive pain medication, it was not the Norco
prescribed by the emergency room physician. Instead, the
Jail's physician, allegedly pursuant to Jail
"policy, " substituted half a pill of hydrocodone
#10 every six hours for 7.5 ml of Norco every six hours.
Plaintiff also generally complains that a Jail nurse lacked
the authority to change the prescribed liquid diet in an
court must dismiss an action or claim filed by an inmate if
the court determines that the action or claim is frivolous or
fails to state a claim on which relief may be granted. See 28
U.S.C. §§ 1915(e)(2), 1915A(b)(1); 42 U.S.C. §
1997e(c). The first standard includes claims based upon
"an indisputably meritless legal theory, "
"claims of infringement of a legal interest which
clearly does not exist, " or claims where the
"factual contentions are clearly baseless."
Neitzke v. Williams, 490 U.S. 319, 327 (1989). The
second standard is the familiar standard for a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6),
accepting a plaintiffs factual allegations as true. A
complaint needs "a short and plain statement of the
claim showing that the pleader is entitled to relief and
sufficient "[f]actual allegations ... to raise a right
to relief above the speculative level... ." Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal quotation marks omitted). A plaintiffs basis for
relief "requires more than labels and conclusions
...." Id. Therefore, a plaintiff must
"allege facts sufficient to state all the elements of
[the] claim." Bass v. E.I. Dupont de Nemours &
Co., 324 F.3d 761, 765 (4th Cir. 2003).
state a claim under § 1983, a plaintiff must allege
"the violation of a right secured by the Constitution
and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of
state law." West v. Atkins, 487 U.S. 42, 48
(1988). However, the Jail is not a "person" for
purposes of § 1983. See Preval v. Reno, 57
F.Supp.2d 307, 310 (E.D. Va. 1999) ("[T]he Piedmont
Regional Jail is not a "person, " and therefore not
amenable to suit under 42 U.S.C. § 1983."),
aff'd in part and rev'd in part, 203 F.3d
821 (4th Cir. 2000), reported in full-text format at 2000
U.S. App. LEXIS 465, at *3, 2000 WL 20591, at *1 ("The
court also properly determined that the Piedmont Regional
Jail is not a 'person' and is therefore not amenable
to suit under § 1983 [.]").
also fails to state a claim against Superintendent McPeak.
Plaintiff does not allege any personal involvement with the
alleged treatment, or lack thereof, of Plaintiff s injuries.
See, e.g., Fisher v. Washington Metro. Area
Transit Author., 690 F.2d 1133, 1142-43 (4th Cir. 1982).
Although Superintendent McPeak responded to several of
Plaintiffs grievances, "[a] superior's
after-the-fact denial of a grievance falls far short of
establishing § 1983 liability." DePaola v.
Ray, No. 7:12cv00139, 2013 U.S. Dist. LEXIS 117182, at
*23, 2013 WL 4451236, at *8 (W.D. Va. July 22, 2013)
(Sargent, M.J.) (citing Brooks v. Beard, 167
F.App'x 923, 925 (3rd Cir. 2006)). Plaintiff does allege
passingly that a Jail "policy" caused the
Jail's physician to substitute one hydrocodone treatment
for another to manage pain. However, Plaintiff does not
allege Superintendent McPeak's involvement with the
modifications to the prescription or liquid diet, and,
arguendo, a jail's use of a formulary does not
amount to deliberate indifference to Plaintiffs
constitutional rights. See, e.g., Monell v.
Dep't of Soc. Servs., 436 U.S. 658, 690-94 (1978).
Accordingly, the complaint fails to state a claim upon which
relief may be granted.
foregoing reasons, the court dismisses the complaint without
prejudice for failing to state a claim upon which relief may
be granted. Because Plaintiff may possibly state a claim
against a different party, he is granted leave for thirty
days to amend the complaint in accordance with Federal Rules
of Civil Procedure 15, 18, 19, and 20 to state a claim
against a different party.
 Determining whether a complaint states
a plausible claim for relief is "a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense." Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009). Thus, a court
screening a complaint under Rule 12(b)(6) can identify
pleadings that are not entitled to an assumption of truth
because they consist of no more than labels and conclusions.
Id Although the court liberally construes pro se
complaints, Haines v. Kerner, 404 U.S. 519, 520-21
(1972), the court does not act as an inmate's advocate,
sua sponte developing statutory and constitutional
claims not clearly raised in a 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 ...