United States District Court, E.D. Virginia, Alexandria Division
Ellis, III United States District Judge
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
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
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.
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."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.
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.
Standard of Review
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
complaint must be dismissed because he has not provided any
facts which, taken as true, establish his right to relief.
Plaintiffs Claims Against Lieutenant Wyne Greer, Sergeant
Veronica Simpkins, Sheriff Todd Godwin Must Be
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.
Defendants Deputy Higgins and Sheriff McCabe Did Not Expose