United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
Sullivan, a Virginia inmate proceeding pro se and
in forma pauperis, filed this 42 U.S.C. § 1983
action. The matter proceeds on the Particularized
Complaint (“Complaint, " ECF No. 30) alleging that
Defendants violated his First and Fourteenth Amendment rights
and his rights under the Religious Land Use and Institutional
Persons Act ("RLUIPA"). The matter is before the
Court on the Motion to Dismiss filed by Defendants R.W.
Younce, Sgt. Medilia, and Wendy S. Hobbs (“First Motion
to Dismiss, " ECF No. 35), and a separate Motion to
Dismiss filed by Defendant Lt. Investigator Harrison
("Second Motion to Dismiss, " ECF No. 47),
the Court's obligations under 28 U.S.C. § 1915A.
Sullivan has responded. (ECF Nos. 45, 50.) For the reasons
set for below, the Court will grant the Motions to Dismiss.
Sullivan's claims will be dismissed for failure to state
a claim for relief and as frivolous.
STANDARD OF REVIEW
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.
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 plaintiff's 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 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, " id.
(citation omitted), stating a claim that is "plausible
on its face, " rather than merely
"conceivable." Id. at 570. "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) . Therefore, 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.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)).
while the Court liberally construes pro se
complaints, Gordon v. Leeke, 574 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
December 2013, Sullivan was housed in the GCC. On December
26, 2013, Defendant Medilia searched Sullivan's cell,
confiscated Sullivan's "religious literature, "
and gave it to Defendant Harrison. (Compl. ¶ 6.) The
purpose of removing the items was to determine whether the
items were gang-related "Five Percent[er]"
materials. (See id. ¶¶ 8-9, 60.)
filed an informal complaint requesting the return of his
property. (Compl. ¶ 8; id. Ex. 1, at 1.)
Sullivan's unit manager informed him that his property
was turned over to the investigator and that it was under
review, and if there was anything that was not considered
contraband, it would be returned to him at the conclusion of
the investigation. (Compl. ¶ 9; id. Ex. 1.)
Sullivan then submitted a regular grievance indicating that
his religious materials were taken and he wanted them
returned to him. (Compl. ¶ 10; id. Ex. 2.)
Assistant Warden Carolyn Parker found Sullivan's
grievance unfounded for the same reasons as his unit manager.
(Compl. ¶ 11; id. Ex. 4.) Sullivan appealed
that decision, and Defendant Hobbs upheld the decision of
Parker. (Compl. ¶ 12; id. Ex. 5.)
January 31, 2014, Sullivan was transferred from GCC to Keen
Mountain Correctional Center ("KMCC") at the
request of the Eastern Region Administrator. (Compl. ¶
15; id. Ex. 6, at 1.) Sullivan filed several
informal requests and one informal complaint complaining
about his transfer. (See id. Ex. 6, at 1-3.) In his
informal requests, he complained that his security level was
too low for him to be transferred to KMCC. (See Id.
at 2-3.) Staff responded to Sullivan, explaining that he was
incorrect, stating: "you were assigned to KMCC by
Cent[ral] Classification Services. You are [Security Level]
3. KMCC houses [Security Level] 3 and 4 offenders."
(Id. At 3.) Sullivan filed an informal complaint on
March 7, 2014, that was sent to the GCC grievance office,
complaining that his "transfer to K.M.C.C. was
retaliation for the complaints and grievances I wrote . . .
." (Id. at 1.) K. Whitehead responded and
explained the following:
You were transferred to Keen Mountain on 1-31-14 at the
request of Eastern Region Administrator. While at Greensville
only one regular grievance was receipted from you on 1-30-14
concerning confiscation of religious property which was one
day before your transfer[;] therefore[, ] it is highly
unlikely your transfer was retaliatory to grievance writing.
(Id.) Sullivan continued to file informal complaints
and grievances regarding his transfer and the confiscation of
his property throughout 2014. (Compl. ¶¶ 16-37.)
Sullivan's confiscated property has not been returned to
him. (Compl. ¶ 50.)
lists his claims as follows:
Claim One: "Defendants Younce, Harrison, and Sgt.
Medilia, violated his First Amendment Right - Free Exercise
clause - to be allowed to have his religious materials by the
Nation of Islam . . . to meet his religious needs."
Claim Two: "Defendants Younce, Harrison, and Sgt,
Medilia violated his rights under the Religious Land Use and
Institutionalized Person Act . . to be allowed his religious
materials to meet his religious needs." (Id.)
Claim Three: ''Defendants Younce, Pearson, Harrison,
and Sgt. Medilia violated his Fourteenth Amendment Right -to
Equal Protection . . . ." (Id.)
Claim Four: "Defendants Younce, Pearson, and Hobbs,
violated his Fourteenth Amendment Rights - to the Due Process
Clause by transferring Plaintiff over eight (8) hours away
from his home and family as a means of retaliation for filing
his numerous requests, letters, complaints, and grievances
due to the unlawful taking of his religious material."
Sullivan did not list a fifth claim, Defendants have
generously construed Sullivan to raise the additional claim
in the body of his Complaint:
Claim Five: Defendants Younce, Pearson, and Hobbs violated
Sullivan7 s due process rights by taking his property from
demands monetary damages and injunctive relief. (Id.
Federal Rules of Civil Procedure require that a complaint
contain "a short and plain statement of the claim
showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a)(2). While courts should liberally construe
pro se complaints, Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1978), “[p]rinciples
requiring generous construction of pro se complaints
are not . . . without limits." Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The Court
need not attempt "to discern the unexpressed intent of
the plaintiff." Laber v. Harvey, 438 F.3d 404,
413 n.3 (4th Cir. 2006) . The Fourth Circuit has explained
that "though [pro se] litigants cannot, of course, be
expected to frame legal issues with the clarity and precision
ideally evident in the work of those trained in law, neither
can district courts be required to conjure up and decide
issues never fairly presented to them."
Beaudett, 775 F.2d at 1276. In other words,
“[d]istrict judges are not mind readers."
Id. at 1278.
preliminary matter, Sullivan's claims as set forth above
do not correspond with the facts that Sullivan has delineated
to support each claim. For example, in Claim Four, Sullivan
alleges a due process violation because Defendants Younce,
Pearson, and Hobbs transferred him as retaliation for filing
grievances. The body of his Complaint that purportedly
corresponds to Claim Four, however, alleges that his due
process rights were violated when his property was taken.
(Compl. ¶¶ 71-72.) Sullivan later adds an entire
section titled, "Retaliation"
(id. at 25), although he alleged no freestanding
claim of retaliation. Liberal construction of a pro
se pleading does not mean that a court should invent
facts to remedy an inadequately pled claim. Instead, the
"plaintiff remains the master of his complaint and is,
in the end, the person responsible for articulating the facts
that give rise to a cognizable claim." Davis v.
Scott, 157 F.3d 1003, 1006 (5th Cir. 1998) . Sullivan
has had more than ample opportunity to plead his claims.
Accordingly, the Court will not cull through the allegations
and supporting facts to create legal claims for Sullivan.
No Personal Involvement Alleged
order to state a viable claim under 42 U.S.C. § 1983, a
plaintiff must allege that a person acting under color of
state law deprived him or her of a constitutional right or of
a right conferred by a law of the United States. See Dowe
v. Total Action Against Poverty in Roanoke Valley, 145
F.3d 653, 658 (4th Cir. 1998) . "Government officials
may not be held liable for the unconstitutional conduct of
their subordinates under a theory of respondeat
superior." Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009)(citations omitted). "[A] plaintiff must plead
that each Government-official defendant, through the
official's own individual actions, has violated the
Constitution." Id. "Where a complaint
alleges no specific act or conduct on the part of the
defendant and the complaint is silent as to the defendant
except for his name appearing in the caption, the complaint
is properly dismissed, even under the liberal construction to
be given pro se complaints." Potter v.
Clark, 497 F.2d 1206, 1207 (7th Cir. 1974) (citing
U.S. ex rel. Brzozowski v. Randall, 281 F.Supp. 306,
312 (E.D. Pa. 1968)). As discussed below, Sullivan fails to
allege any personal involvement in the deprivation of his
rights by the majority of the Defendants.
First Amendment (Claim One)
Claim One, Sullivan alleges that "Defendants Younce,
Harrison, and Sgt. Medilia, violated his First Amendment
Right -Free Exercise clause - to be allowed to have his
religious materials by the Nation of Islam ... to meet his
religious needs." (Compl. 13.)
initial matter, Defendants argue that Sullivan alleges no
personal involvement in the deprivation of his constitutional
rights by Defendant Younce. Sullivan fails to mention
Defendant Younce in the body of his Complaint, much less
allege personal involvement in the deprivation of his
religious rights. For the first time in his Reply, and in an
attempt to correct the deficiencies identified by
Defendants' in their Motion to Dismiss with regard to
Claim One, Sullivan adds new allegations that amend paragraph
48 of his Complaint. In his Complaint, Sullivan alleged that,
while Sgt. Medilia was searching Sullivan's cell, he
received a call on his radio asking "Did you find
anything yet?" (Compl. ¶ 48.) In his Reply,
Sullivan now contends that Sgt. Medilia received the call
from Defendant Younce and that Defendant Younce was in
"direct line of sight of [Sullivan] when he stated this,
" thereby, Defendant Younce had personal involvement in
the search. (Reply 5, ECF No. 45.) As discussed previously, a
reply in response to a motion to dismiss is not the proper
place to allege new facts to correct the deficiencies in a
complaint. Nevertheless, because Sullivan's First
Amendment claim clearly lacks merit, the Court addresses any
claim against Defendant Younce in conjunction with its
discussion of Defendants Harrison and Medilia.
state a First Amendment free exercise claim, Sullivan must
allege facts that suggest that Ml) he holds a sincere belief
that is religious in nature" and (2) that Defendants
Harrison and Medilia imposed a substantial burden on the
practice of his religion. Whitehouse v. Johnson, No.
1:10cv1175 (CMH/JFA), 2011 WL 5843622, at *4 (E.D. Va. Nov.
18, 2011) (citing Hernandez v. Comm'r, 490 U.S.
680, 699 (1989)). "Government officials impose a
substantial burden on the free exercise of religion by
“put[ting] substantial pressure on an adherent to
modify his behavior and to violate his beliefs.'"
Massenburg v. Adams, No. 3:08 cv 106, 2011 WL