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Etterson v. Newcome

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

July 19, 2016

VICTOR M. ETTERSON, Plaintiff,
v.
JEFFERY NEWCOME, et al., Defendants.

          MEMORANDUM OPINION

          John A. Gibney, Jr. United States District Judge

         Victor M. Etterson, a former Virginia inmate proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983 action.[1] By Memorandum Opinion and Order entered on October 5, 2015, the Court dismissed all claims except the First Amendment claim against Defendants Sergeant Moore and Jailer McCormick. ("Defendants"). The matter is before the Court on Defendants' Motion to Dismiss. For the reasons slated below, the Motion to Dismiss (ECF No. 20) will be DENIED.

         I. STANDARD FOR MOTION TO DISMISS

         "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) (citing 5A 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 P.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." Ashcrofi 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 Ail. 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.I. DuPont de Nemours * Co., 324 P.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002); Iodice v. United Slates, 289 P.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 will not act as the inmate's advocate and develop, sua sponte, statutory and constitutional claims that 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).

         II. SUMMARY OF ALLEGATIONS

         The allegations in Etterson's Complaint are as follows:

I was removed from Ramadan by Sgt. Moore and jailer McCormick on July 5, 2014 at Riverside Regional Jail, because Sgt. Moore and jailer McCormick saw me drink water and eat some food, because the Ramadan tray was late. The dinner trays had been served about 2 hours earlier. . . . But as soon as I took a sip of water and a bite to eat, Sgt. Moore and jailer McCormick ran over to me and said, you are off of Ramadan. I tried to explain to them that it did not need to be dark outside, just as long as the sun had gone down[. W]ell they didn't want to believe me, but it's the truth.
On July 6, 2014. jailer McCormick and Sgt. Moore, feed me breakfast, lunch and dinner, with the rest of medical housing 2 where 1 was assigned at the time. But when the shift changed on July 6. 2014, jailer Armstrong gave me my Ramadan tray, and breakfast, because she said my name was still on the Ramadan list. But on July 7, 2014, during the morning shift, jailer Spretely came on, and gave me breakfast, but when she went on her lunch break, I did not get a lunch tray or dinner tray that evening. When jailer Armstrong came on she did not give me a Ramadan tray, because Sgt. Moore told her I was no longer on Ramadan. From that point, I was no longer on Ramadan.

(Compl. 5 (spelling, spacing, and capitalization corrected).)

         Etterson demands money damages. (Compl. 6 (capitalization and spelling corrected).)

         III. DEFENDANT'S ARGUMENTS FOR DISMISSAL

         Defendants argue that Etterson's claims should be dismissed because: (1) Etterson fails to show any physical injury; (2) Etterson failed to exhaust his administrative remedies; (2) and. (3) Defendants are entitled to qualified ...


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