United States District Court, E.D. Virginia, Richmond Division
A. Gibney, Jr. United States District Judge.
Lee Hinton, a Virginia inmate proceeding pro se and
in forma pauperis, filed this 42 U.S.C. § 1983
action. In his Particularized Complaint
("Complaint, " ECF No. 22), Hinton contends that
Defendants Sergeant Finch, Recreation Supervisor Walker, Unit
Manager C. Townes, Sergeant Malone, Ombudsman C. Jones, and
Doctor Mililani committed various constitutional violations
with regard to Hinton's fall from a broken bench during
his incarceration at the Lawrenceville Correctional Center
("LCC"). The matter is before the Court for
evaluation pursuant to 28 U.S.C. §§ 1915(e)(2) and
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); see 28
U.S.C. § 1915A. 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, 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 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,
therefore, 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, SI A 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 ALLEGATIONS AND CLAIMS
initial Complaint ("Initial Complaint, " ECF No. 1)
repeated the following unhelpful statement of his claims:
"gross negligence, deliberate indifference, and reckless
disregard for [Plaintiffs] health and safety" in
violation of the First, Eighth and Fourteenth Amendments.
(Initial Compl. 2 (capitalization corrected).) The Court
noted that Hinton's allegations were extremely
repetitive, conclusory, and failed to provide each defendant
with fair notice of the facts and legal basis upon which his
or her liability rests. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). Accordingly, by
Memorandum Order entered on August 17, 2016, the Court
directed Hinton to particularize his Initial Complaint.
August 29, 2016, the Court received another Complaint
("Second Complaint, " ECF No. 20) from Hinton. This
Second Complaint was nearly identical to the Initial
Complaint that Hinton previously filed and that the Court
determined was deficient. Hinton repeated the identical
repetitive, conclusory, and unhelpful statement of his
claims. Hinton failed to correct any of the deficiencies
identified in the Court's Memorandum Order and
disregarded the Court's directives almost entirely.
Nevertheless, the Court allowed Hinton one final attempt to
correct the deficiencies in his Second Complaint. In his
latest Particularized Complaint ("Complaint"),
Hinton mostly complied with the Court's directives;
however, he lacks a section containing a comprehensive
statement of the facts giving rise to his claims. Instead,
the facts are scattered throughout the Complaint making it
difficult for the Court to provide a concise summary.
Moreover, the Complaint is long on legal conclusions and
short on facts. Accordingly, the Court has parsed the
Complaint and makes a list of pertinent facts as
1. On "June 25, 2016, after a 'work order' for
bolts missing from the bench was entered, Donald Lee Hinton
sat on the bench and fell back injuring his head, neck, and
back needing immediate medical treatment." (Compl.
2. "Sergeant Malone . . . was there and saw the
incident. Because Hinton complained of head, neck, and back
pain, Malone took him to medical." (Id.
¶¶ 69-70 (paragraph numbers omitted)).
3. "Sergeant Finch admitted he knew the bolts were
missing from the bench before Hinton fell because he filed a
'work order'." (Id. ¶ 14.)
4. "Walker, Recreation Supervisor had actual knowledge
the bolts were missing because Sergeant Finch had filed a
'work order'." (Id. ¶ 28.)
5. "After the bench caused Hinton to fall, Sergeant
Malone took Hinton to medical. Nurse Moody RN referred Hinton
to Dr. Mililani. Nearly a month passed before Dr. Mililani
saw Hinton. ... Dr. Mililani immediately ordered X-rays and
pain medication; meaning Hinton had no medication to ease the
pain for twenty-six (26) days." (Id.
¶¶ 9-12 (paragraph numbers omitted).)
6. "Hinton is a diabetic and suffers from hypertension
magnifying the head, neck, and back injury suffered in the
fall. Dr Mililani knows about this." (Id.
7. C. Townes, Unit Manager "lied in her response of July
1, 2015 to Hinton's Informal Complaint #01855, saying:
'It was Hinton's fault he was injured.' Townes
again lied in her response of July 26, 2015 to Hinton's
Informal Complaint #02185, saying, "Staff could not
verify the bench was broken.'" (Id.
¶¶ 55-56 (paragraph numbers omitted).)
8. "Townes failed to follow the Rules of Operating
Procedure 866.1 requiring an investigation."
(Id. ¶ 63.)
9. "Hinton sent a request to Malone asking for a copy of
the 'incident report' that is required when an
incident of this nature occurs. Malone never responded.
Because Malone did not respond on July 12, 2015, Hinton filed
an Informal Complaint #02068. Malone refused to respond ...