United States District Court, W.D. Virginia, Roanoke Division
Jackson L. Kiser Senior United States District Judge
El-ectromagneti Supreme-El, a Virginia inmate proceeding pro
se, filed a civil rights complaint pursuant to 42 U.S.C.
§ 1983. Plaintiff names as defendants Gregory Holloway,
who is the Warden of Wallens Ridge State Prison
("WARSP"), and Correectional Officer K. Massey, who
is a WARSP Mailroom Clerk. The court advised Plaintiff that
the complaint failed to state a claim upon which relief may
be granted, and Plaintiffs amended complaint is before me for
consideration. After reviewing Plaintiffs submissions, I
dismiss the amended complaint for failing to state a claim
upon which relief may be granted.
August 22, 2014, Plaintiff received mail from the United
States District Court for the Eastern District of Virginia
("District Court") that was already opened with its
contents previously removed. Staff had removed a money order
from the District Court and forwarded it to the WARSP
Business Office to be deposited in Plaintiffs inmate trust
account. Plaintiff did not sign a legal mail log because
prison staff processed the mail as "general mail."
filed an administrative grievance about the mail being opened
outside of his presence. Warden Holloway denied the
grievance, claiming the envelope did not qualify as legal
mail because it was sent from the United States Treasury. A
regional administrator disagreed with Warden Holloway and
deemed the grievance founded because the mail was considered
"legal mail" and was from the District Court.
now sues Warden Hollo way and Officer Massey for alleged
First Amendment and due process violations. Plaintiff
concludes that staffs opening of legal mail outside his
presence deprived him access to courts and violated privacy
between him and the District Court. Plaintiff further claims
Massey and Holloway conspired to commit those violations and
that Massey made a "false statement" in furtherance
of the conspiracy. Plaintiff seeks, inter alia,
damages to compensate for the "experienced delay in
receiving the information of both the remaining contents and
those that were removed from the legal mail [a]ffecting his
ability to timely gather resources and redress the court
dismiss an action or claim filed by an inmate if I determine
that the action or claim is frivolous or fails to state a
claim on which relief may be granted. See 28 U.S.C.
§§ 1915(e)(2), 1915A(b)(1); 42 U.S.C. §
1997e(c). The first standard includes claims based upon
"an indisputably meritless legal theory, "
"claims of infringement of a legal interest which
clearly does not exist, " or claims where the
"factual contentions are clearly baseless."
Neitzke v. Williams. 490 U.S. 319, 327 (1989). The
second standard is the familiar standard for a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6),
accepting a plaintiffs factual allegations as true. A
complaint needs "a short and plain statement of the
claim showing that the pleader is entitled to relief and
sufficient "[f]actual allegations ... to raise a right
to relief above the speculative level" Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks omitted). A plaintiffs basis for relief
"requires more than labels and conclusions ...."
Id. Therefore, a plaintiff must "allege facts
sufficient to state all the elements of [the]
claim."Bass v. E.I. Dunont de Nemours &
Co.. 324 F.3d 761, 765 (4th Cir. 2003).
state a claim under § 1983, a plaintiff must allege
"the violation of a right secured by the Constitution
and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of
state law." West v. Atkins, 487 U.S. 42, 48
(1988). However, Plaintiff fails to identify a non-frivolous
legal claim that a defendant's actions prevented him from
litigating. See, e.g.. Christopher v.
Harburv. 536 U.S. 403. 415 (2002). This requirement
means the "inmate must come forward with something more
than vague and conclusory allegations of inconvenience or
delay in his instigation or prosecution of legal actions ....
The fact that an inmate may not be able to litigate in
exactly the manner he desires is not sufficient to
demonstrate the actual injury element of an access to courts
claim." Godfrey v. Washington Cnty.. Va..
Sheriff. No. 7:06-cv-00187, 2007 U.S. Dist. LEXIS 60519,
at *39, 2007 WL 2405728, at *13 (W.D. Va. Aug. 17, 2007)
(Turk, J.). Similarly, Plaintiffs conclusory allegations of a
conspiracy are insufficient to state a claim. Simmons v.
Poe. 47 F.3d 1370, 1376 (4th Cir. 1995). Plaintiff has
failed to show Defendants' agreement or a "meeting
of the minds." Id. at 1377. Moreover, a claim
that prison officials have not followed their own independent
policies or procedures also does not state a constitutional
claim. See United States v. Caceres. 440 U.S. 741,
752-55 (1978); Riccio v. Cnty. of Fairfax. 907 F.2d
1459, 1469 (4th Cir. 1990). Finally, Plaintiff fails to
identify any defendant's act or omission responsible for
the alleged deprivation of a federal right, and Warden
Holloway's "after-the-fact denial of a grievance
falls far short of establishing § 1983 liability."
DePaola v. Ray. No. 7:12cv00139, 2013 U.S. Dist.
(2009). Thus, a court screening a complaint under Rule
12(b)(6) can identify pleadings that are not entitled to an
assumption of truth because they consist of no more than
labels and conclusions, hi Although I liberally construe pro
se complaints. Haines v. Kerner. 404 U.S. 519,
520-21 (1972), I do not act as an inmate's advocate, sua
sponte developing statutory and constitutional
claims not clearly raised in a 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); see. also Gordon v.
Leeke. 574 F.2d 1147, 1151 (4th Cir. 1978) (recognizing
that a district court is not expected to assume the role of
advocate for a rjro se plaintiff). LEXIS 117182, at *23, 2013
WL 4451236, at *8 (W.D. Va. July 22, 2013) (Sargent, M.J.)
(citing Brooks v. Beard. 167 F.App'x 923, 925
(3rd Cir. 2006)). Accordingly, the amended complaint is
dismissed for failing to state a claim upon which relief may
 Determining whether a complaint states
a plausible claim for relief is "a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense." Ashcroft v.