United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DISMISSING CIVIL ACTION AS
E.HUDSON, UNITED STATES DISTRICT JUDGE
Keith Walker, a former Virginia inmate, filed this civil
action he titles "In re: Personal Rights[, ] 42 U.S.C.
§ 1983" ("Complaint, " ECF No. 1). The
matter is before the Court for evaluation pursuant to 28
U.S.C. §§ 1915(e)(2) and 1915A.
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 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). 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, " stating a claim
that is "plausible on its face, " rather than
merely "conceivable." Id. at 555, 570
(citations omitted). "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 Twombly, 550 U.S. at 556). 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 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, Walker states:
For the matter of three years the Defendant in this matter
has been conspiring with persons known [and] unknown to
attempt to take my minor child from me [and] prevent me from
petitioning the federal court by use of threat, intimidation
[and] filing false and misleading statements under color of
At this time, the Defendant is believed to have knowingly
violated the 4th, 14th [and] 1st, 9th Amendments of the U.S.
Constitution, to withhold a negro child from me as a parent.
This is now the third or fourth time the Defendant has
specifically continued to proceed in matters w/o having
jurisdiction, personal or subject matter [and] also the third
time the Defendants have acted under color of the law simply
to withhold my child or prevent me from petitioning the
federal court. After advising me in open court he is aware of
such deprivation. He has continued to harass me, take my
child, attempt to change my name, altered court cases [and]
attempted to refuse me access to relief or prevent me from
filing in the federal court to cover up his forgery [and]
At this time he has caused or contributed to the abduction of
my child [and] myself under the color of law [and] without
jurisdiction, to prevent me from petitioning Honorable James
I have direct evidence [and] have created a record.
He again has attempted to alter my name to abduct me [and]
withhold me from ...