United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski United States District Judge
Wayne Hight, a Virginia inmate proceeding pro se, filed a
civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff names as defendants the New River Valley Regional
Jail ("Jail") Medical Staff Department, Nurse Betty
Akers, and Nurse Rebbecca Asbury. This matter is before the
court for screening pursuant to 28 U.S.C. § 1915A. After
reviewing Plaintiffs submissions, the court dismisses the
complaint without prejudice for failing to state a claim upon
which relief may be granted and grants Plaintiff seven
days' leave to amend.
at pill call on October 31, 2016, Plaintiff showed Nurse
Asbury his identification but received another inmate's
four pills for blood pressure. Plaintiff regurgitated three
pills after realizing he ingested the wrong medicine and then
received the correct medicine. Plaintiff told Nurse Akers
that he ingested the different pills because he recently had
seen the doctor and thought the doctor may have added a new
prescription. Plaintiff believes Nurse Asbury jeopardized his
health and alleges he now suffers anxiety because he ingested
one pill of someone else's blood pressure medicine in
court must dismiss an action or claim filed by an inmate if
the court determines 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. Dupont de Nemours &
Co., 324 F.3d 761, 765 (4th Cir. 2003).
complaint fails to state a claim upon which relief may be
granted. To 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).
Jail Medical Staff Department is not a proper
"person" subject to § 1983. See,
e.g.. McCoy v. Chesapeake Corr. Ctr.. 788
F.Supp. 890, 894 (E.D. Va. 1992) (reasoning local jails are
not appropriate defendants to § 1983 actions);
Ferguson v. Morgan, No. I:90cv06318, 1991 U.S. Dist.
LEXIS 8295, 1991 WL 115759, at *1 (S.D.N.Y. June 20, 1991)
(concluding that a group of personnel, like "medical
staff, " is not a "person" for purposes of
complaint fails to allege Nurse Akers' or Nurse
Asbury's deliberate indifference to a serious medical
need. Deliberate indifference requires a state actor to have
been personally aware of facts indicating a substantial risk
of serious harm, and the actor must have actually recognized
the existence of such a risk. See, e.g.. Farmer v.
Brennan, 511 U.S. 825, 838 (1994); Estelle v.
Gamble. 429 U.S. 97, 104 (1976); Conner v.
Donnelly, 42 F.3d 220, 222 (4th Cir. 1994). Here,
Plaintiff alleges Nurse Asbury negligently gave him the wrong
prescription on October 31, 2016, but claims of negligence or
medical malpractice are not cognizable in a § 1983
proceeding. See, e.g.. Estelle. 429 U.S. at
105-06; Sosebee v. Murphy. 797 F.2d 179, 181 (4th
Cir. 1986). Furthermore, Plaintiff does not allege any
personal act or omission by Nurse Akers, and Nurse Akers
cannot be liable under the theory of respondeat
superior. See, e.g., Monell v. Dep'tof
Soc. Servs.. 436 U.S. 658, 663 n.7 (1978); Fisher v.
Washington Metro. Area Transit Author., 690 F.2d 1133.
1142-43 (4th Cir. 19821 abrogated on other
grounds by Cnty. of Riverside v. McLaughlin.
500 U.S. 44, 47 (1991). Accordingly, the complaint is
dismissed without prejduce.
foregoing reasons, the court dismisses the complaint without
prejudice for failing to state a claim upon which relief may
be granted pursuant to 28 U.S.C. § 1915A(b)(1).
Plaintiff is granted seven days' leave to file an amended
complaint. If the court does not receive anything from
Plaintiff within fourteen days, the action will remain
dismissed without prejudice, the Clerk may strike the case
from the active docket, and Plaintiff may refile his claims
in a new and separate action at the time of his choice
subject to the applicable limitations period.
 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.
Iqbal.556 U.S. 662, 678-79 (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.
Id Although the court liberally construes pro se
complaints. Haines v. Kerner,404 U.S. 519, 520-21
(1972), the court does 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 ...