United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
Alicimeus, a federal detainee proceeding pro se,
filed this action in the Circuit Court for Prince Edward
County, Virginia. On December 4, 2015, Immigration Center of
America, LLC, Jeffrey Crawford, Matthew Jackson, Russell B.
Harper, Ken Newsome, Warren Coleman, Mabel Logan
(collectively, "ICA Defendants"), and Armor
Correctional Health Services, Inc. ("Armor"), Wayne
O'Brien, and Robert Dooley, MD (collectively, "Armor
Defendants") removed the action to this
Court. The matter is before the Court on the ICA
Defendants' Motion to Dismiss (ECF Nos. 7)
For the reasons that follow, the ICA Defendants' Motion
to Dismiss will be granted. Alicimeus will be directed to
show good cause why his claims against the Armor Defendants
should not be dismissed.
STANDARD OF REVIEW
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 plaintiff's 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
F.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." Ashcroft 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 Atl. 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, " rather than merely
"conceivable." Id. at 570. "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). Therefore, 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 F.3d 761, 765
(4th Cir. 2003) (citing Dickson v. Microsoft Corp.,
309 F.3d 193, 213 (4th Cir. 2002); Iodice v. United
States, 289 F.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 does not act as the inmate's advocate, sua
sponte developing statutory and constitutional claims 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 PERTIENT ALLEGATIONS AND CLAIMS
invokes the Court's jurisdiction under 42 U.S.C. §
1983. (Compl. 6, ECF No. 1-2.) "Immigration Center of
America [("ICA")] . . . operates a detention center
for illegal immigrants in Farmville, Virginia, under a
contract with the Border and Transportation Security division
of the Department of Homeland Security, United States
Immigration and Customs Enforcement." (Id.
¶ 22.) The remaining defendants are investors/owners of
ICA, employees of ICA, a privately contracted medical
company, Armor, and its employees. (Id. ¶¶
20, 2015, Alicimeus was placed "in the custody of
Immigration Center of America - Farmville by defendant,
Department of Homeland Security, for intake and processing
for immigration proceedings." (Compl. ¶ 24.) During
his incarceration at ICA Farmville, Alicimeus asserts that
Defendants violated his constitutional rights by, inter
alia, failing to provide adequate toilet paper, (Compl.
¶ 26) and failing to provide him with adequate medical
care (id. ¶¶ 27- 31) . Alicimeus demands
injunctive and declaratory relief and monetary damages.
NO CLAIM UNDER 42 U.S.C.§ 1983 OR BIVENS
seeks to sue the ICA Defendants and the Armor Defendants
under 42 U.S.C. § 1983. (Compl. 6.) That statute
provides, in pertinent part:
Every person who, under color of any statute . . . of any
State . . . subjects, or causes to be subjected, any citizen
of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law ....
42 U.S.C. § 1983. Alicimeus fails to provide any factual
allegations that plausibly suggest the ICA Defendants acted
under color of state law. At best, Alicimeus alleges the ICA
Defendants were acting under some gloss of federal authority
by virtue of their relationship with the Department of
Homeland Security. See Chatman v. Hernandez, 805
F.2d 453, 455 (1st Cir. 1986) (citation omitted) (observing
that "Section 1983 applies to persons acting 'under
color of state law' and not to persons acting pursuant to
federal law"). Accordingly, Alicimeus fails to state a
claim under 42 U.S.C. § 1983 against the ICA Defendants.
Alicimeus fails to state a claim under Bivens
against the ICA Defendants. In Bivens, the Supreme
Court held only
that 'violation of [the Fourth Amendment] by a federal
agent acting under color of his authority gives rise to a
cause of action for damages, ' despite the absence of any
federal statute creating liability. 403 U.S. at 389.
Carlson v. Green, 446 U.S. 14 (1980), extended
Bivens to recognize an implied damages ...