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Cherry v. Greer

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

June 7, 2016

Travis Lavon Cherry, Plaintiff,
Wyne Greer, et al, Defendants.


          T. S. Ellis, III United States District Judge

         Travis Lavon Cherry, a Virginia inmate proceeding pro se, has filed a civil rights action, pursuant to 42 U.S.C. § 1983, alleging that he was discriminated against by staff at his former place of incarceration, Accomack County Jail ("Accomack"). Soon after filing his initial complaint in Case No. I:15cvl588, plaintiff filed a similar action, and his two complaints were consolidated. Plaintiff was given the opportunity to file one particularized and amended consolidated complaint in Case No. 1:15cv1588. Dkt. No. 7. Plaintiff complied by filing the operative amended complaint. Dkt. No. 11. Then, on March 2, 2016, plaintiff filed a third complaint, and on March 31, 2016, plaintiffs third complaint was consolidated with the instant case. Dkt. No. 15. In addition to filing several complaints, plaintiff has submitted an affidavit to proceed in forma pauperis in this action. For the reasons that follow, plaintiffs claims must be dismissed pursuant to 28 U.S.C. § 1915A(b)(l), for failure to state a claim.[1]

         I. Background

         Despite directing plaintiff to clarify his claims against all the named defendants and giving him ample time and direction in order to do so, plaintiffs allegations remain difficult to follow. In the operative particularized and amended complaint, it appears that plaintiff alleges that Deputy Levy Higgins touched plaintiffs "private part on Aug. 13" and that Deputy Higgins then made embarrassing sexual comments about plaintiff "in front of other inmates stateing [sic] ... Cherry you have the smallest penus [sic]." Dkt. No. 11 at 4. Plaintiff also alleges that Deputy Higgins called him a "monkey" and stated that "monkeys belong in a cage." Id. Asa result, plaintiff claims that he has "been going through physical and emotional stress and pain by the other inmates calling [him] gay and saying that [he has] a small (dick)." Id. Plaintiff asserts that Deputy Higgin's actions toward him constitute unconstitutional discrimination. Id.

         Although plaintiff mentioned slow and inadequate medical treatment in a previously filed original complaint, he has not made any claim about his medical treatment in the operative particularized and amended complaint. After initial review of his original complaint filed on November 24, 2015 in Case No. I:15cvl588, based on plaintiffs illegible handwriting and conclusory and disjointed allegations, plaintiff was directed to provide additional information about his medical claims. Dkt. No. 2 at 3. Plaintiff responded by filing an amended complaint; however, he did not include any details about his medical treatment at Accomack.

         Plaintiff additionally submitted a third complaint on March 2, 2016, which was docketed as Case No. 1:16cv223 (TSE/TCB). That case was consolidated with the instant case, Case No. 1:15cv 1588 (TSE/MSN). Dkt. No. 15. In that complaint, plaintiff appears to allege that Sheriff Robert McCabe was aware of the "harm and sexual assaults" that were affecting plaintiff at Accomack. Dkt. No. 16 at 4. Plaintiff alleges that he should be "entitled to equal protection, " and that Sheriff McCabe should "remove [him] from this jail for the safety of [his] life." Id. Plaintiff specifically claims that McCabe is "aware of the civil and criminal complaints [plaintiff has] filed against the deputies" and that McCabe have him transferred to "Norfolk City Jail."[2]Id. at 4, 6. Plaintiff asserts that "there [sic] not agreeing to move me this clearly violated my fourteenth amendments to equal protection." Id. at 6.

         Plaintiff filed three original complaints prior to the end of March 2016, and those cases have all been consolidated. See Dkt. No. 7, 15. Plaintiff has named Deputy Higgins, Lieutenant Wyne Greer, Sergeant Veronica Simpkins, Sheriff Todd Godwin, and Sheriff Robert McCabe as defendants in this consolidated case, and he seeks monetary and injunctive relief.

         II. Standard of Review

         In reviewing a complaint pursuant to § 1915A, a court must dismiss a prisoner complaint that is frivolous, malicious, or fails to state a claim upon which relief can be granted. 28 U.S.C. § 1915A(b)(l). Whether a complaint states a claim upon which relief can be granted is determined by "the familiar standard for a motion to dismiss under Fed.R.Civ.P. 12(b)(6)." Sumner v. Tucker. 9 F.Supp.2d 641, 642 (E.D. Va. 1998). To survive a 12(b)(6) motion, and thus state a claim under § 1915A(b)(l), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal. 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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 663. Although the facts should be construed in plaintiffs favor, Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999), "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to meet this standard, Iqbal, 556 U.S. at 678, and a plaintiffs "[f]actual allegations must be enough to raise a right to relief above the speculative level...." Twombly, 550 U.S. at 55. Moreover, a court "is not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 556 U.S. at 678. Mindful of the duty to construe complaints filed by pro se litigants liberally, a pro se complaint should not be dismissed under this standard unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Haines v. Kerner, 404 U.S. 519, 521 (1972) (per curiam).

         III. Analysis

         Plaintiffs complaint must be dismissed because he has not provided any facts which, taken as true, establish his right to relief.

         A. Plaintiffs Claims Against Lieutenant Wyne Greer, Sergeant Veronica Simpkins, Sheriff Todd Godwin Must Be Dismissed

         Plaintiff has not alleged any facts regarding defendants, Lieutenant Wyne Greer, Sergeant Veronica Simpkins, and Sheriff Todd Godwin. In an Order dated January 28, 2016, plaintiff was given an opportunity to file one consolidated particularized and amended complaint in which he was instructed to include "sufficient factual matter" related to each named defendant in order to "to state a claim to relief that is plausible on its face." Iabal. 556 U.S. at 678 (2009) (internal citations omitted); see also Dkt. No. 7. Plaintiff was also advised that "[e]ach named defendant in a § 1983 action must have had personal knowledge of and invovlment in the alleged violations of plaintiff s constitutional rights in order for the action to proceed against him." Dkt. No. 7 at 2. Because plaintiff has not provided any facts or allegations about Leitenant Wyne Greer, Seargent Veronica Simpkins, or Sheriff Todd Godwin, his claims against those three particular defendants must be dismissed.

         B. Defendants Deputy Higgins and Sheriff McCabe Did Not Expose Plaintiff ...

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