United States District Court, E.D. Virginia, Richmond Division
JOSEPH W. VERRETT, SR. Plaintiff,
GENERAL MOTORS AUTOMOTIVE GROUP, Defendant.
MEMORANDUM OPINION (DISMISSING COMPLAINT WITHOUT
E. HUDSON, UNITED STATES DISTRICT JUDGE
W. Verrett, Sr., a Virginia inmate proceeding pro se
and in forma pauperis, filed this Complaint against
General Motors Automotive Group ("GM"). The matter
is before the Court for evaluation pursuant to 28 U.S.C.
to the Prison Litigation Reform Act ("PLRA") this
Court must dismiss any action filed by a prisoner if the
Court determines the action (1) "is frivolous" or
(2) "fails to state a claim on which relief may be
granted." 28 U.S.C. § 1915(e)(2)(B). The first
standard includes claims based upon "an indisputably
meritless legal theory, " or claims where the
"factual contentions are clearly baseless."
Clay v. Yates, 809 F.Supp. 417, 427 (E.D. Va. 1992)
(quoting Neitzke v. Williams, 490 U.S. 319, 327
(1989)). The second standard is the familiar standard for a
motion to dismiss under Fed.R.Civ.P. 12(b)(6).
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 5 A
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, 1 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 4a
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.'" BellAtl. 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.L
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, 107 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
Complaint, Verrett alleges:
1. That on or about and throughout the year 2005 to the year
2013, the Defendant was manufacturing and selling automobiles
under the company "General Motors" name and brand.
2. That in that same time period, the Plaintiff purchased a
GM automobile from a licensed GM dealer, namely Rosenthal
Automotive in Arlington, VA.
3. That under such purchase agreement all warranties to such
automobile were in place and no waiver of such occurred.
4. That on or about July 5, 2013 while Plaintiff was driving
the purchased automobile, a 2006 Chevrolet Cobalt the
car/automobile shut off/engine stopped working causing the
Plaintiff to strike a guard rail several times.
5. That Chevrolet is a brand under the GM company's
ownership and control.
6. That upon striking the guard rail due to loss of control
due to the engine stopping, the ...