United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski United States District Judge
Tyrone Williams, a Virginia inmate proceeding pro se, filed a
civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff names Dr. Freddrick Moses of the New River Valley
Regional Jail as the sole defendant. Plaintiff alleges:
This facility, knowingly, under the care of Doctor Freddrick
Moses, neglected my medical needs concerning my diabetes
condition such as stick tests, AIC testing, dilated eye
exams, microalbumin [sic] test, etc. (paperwork included).
This facility, knowingly, under the care of Doctor Frederick
Moses neglected my medical needs concerning my sinus
infection (paperwork included).
referenced paperwork includes jail grievances and requests
for services, none of which bear Dr. Moses' signature or
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).
complaint fails to allege Dr. Moses' deliberate
indifference to a serious medical need beyond labels and
conclusions. 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, at most, negligent care at
the facility under the supervision of Dr. Moses, 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 Dr. Moses, and Dr. Moses
cannot be liable under the theory of respondeat
superior. See, e.g., Monell v. Dep't of
Soc. Servs., 436 U.S. 658. 663 n.7 C1978): Fisher v.
Washington Metro, Area Transit Author, 690 F.2d 1133.
1142-43 (4th Cir. 1982). abrogated on other
grounds by Cnty. of Riverside v.
McLaughlin, 500 U.S. 44, 47 (1991). Accordingly, the
complaint is dismissed without prejudice.
is granted seven days' leave to file an amended
complaint. If the court does not receive anything from
Plaintiff within fourteen days, the Clerk may strike the case
from the active docket, and Plaintiff may thereafter file 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 ...