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Harvey v. Simon

United States District Court, E.D. Virginia, Richmond Division

April 27, 2017

TIMOTHY R. HARVEY, Plaintiff,
v.
DAVID SIMON, Defendants.

          MEMORANDUM OPINION

          Robert E. Payne Senior United States District Judge.

         Timothy R. Harvey, a Virginia inmate proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983 action.[1] The matter is before the Court for evaluation pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A. For the reasons set for below, the Court will dismiss the action without prejudice for failure to state a claim for relief.

         I. STANDARD OF REVIEW

         Pursuant 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).

         "A 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. MyIan 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).

         The 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); lodice 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 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).

         II. SUMMARY OF ALLEGATIONS AND CLAIMS

         By Memorandum Order entered on March 2, 2017, the Court directed Harvey to file a particularized complaint because the rambling allegations in his original complaint 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)); (Mem. Order 1, ECF No. 17.) Harvey filed a Particularized Complaint that failed to correct the deficiencies identified by the Court in its March 2, 2017 Memorandum Order. "Specifically, [in the Particularized Complaint, Harvey] indicates that he wishes to name more than one person as a defendant, but he fails to identify more than one defendant by name. [Harvey] also fails to name any defendants in the body of his Particularized Complaint." (Mem. Order 1, ECF No. 19.) Accordingly, by Memorandum Order entered on April 10, 2017, the Court directed Harvey to file a second particularized complaint. The Court again explained to Harvey that his "current allegations fail to provide each defendant with fair notice of the facts and legal basis upon which his or her liability rests." (Id. at 2.) Harvey has filed two documents with accompanying exhibits in response to the Court's April 10, 2017 Memorandum Order.[2]

         In the document he labels "PARTICULARIZED COMPLAINT FOR CIVIL ACTION NUMBER 3:I6CV6O4, " ("Second Particularized Complaint, " ECF No. 20), Harvey provides the following statement of his claim and supporting allegations:

While serving my sentence of 2 years and 12 months, I have suffered due to the fact of lack of care by medical staff at both institutions I've stayed, Dillwyn Correctional Center and Hampton Roads Regional Jail. I've been without my right arm brace for 2 years and 2 months, plus my right leg brace is broken. I've tried all proper procedures to accomplish my goals of getting what I need to no prevail. For this fact I'm suing both Dillwyn Correctional Center and Hampton Roads Regional Jail.
For deliberate indifference/negligence/pain and suffering/medical malpractice Eighth Amendment violations.Damages in the amount of $50, 000 to $100, 000.

(Id. at 1.) In the second filing entitled, "MOTION TO AMEND CIVIL ACTION, " (Motion to Amend, ECF No. 21), Harvey states the following:

Comes now the plaintiff in Civil Action No. 3:I6CV6O4 and asks this Honorable Court to Amend my Civil Action that was file in the Clerk's office on 3, 2017 [sic]. In that Civil Action Plaintiff make[s] notice:
1) Dr. Kolongo MD. Medical Director at Hampton Roads Regional Jail
2. Ms. Oldaker Medical Practioner at Hampton Roads ...

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