United States District Court, E.D. Virginia, Richmond Division
VICTOR M. ETTERSON, Plaintiff,
JEFFERY NEWCOME, et al., Defendants.
A. Gibney, Jr. United States District Judge
M. Etterson, a former Virginia inmate proceeding pro
se and in forma pauperis, filed this 42 U.S.C.
§ 1983 action. 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.
STANDARD FOR MOTION TO DISMISS
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).
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).
SUMMARY OF ALLEGATIONS
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).)
demands money damages. (Compl. 6 (capitalization and spelling
DEFENDANT'S ARGUMENTS FOR DISMISSAL
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 ...