United States District Court, E.D. Virginia, Richmond Division
TIMOTHY R. HARVEY, Plaintiff,
DAVID SIMON, Defendants.
E. Payne Senior United States District Judge.
R. Harvey, a Virginia inmate proceeding pro se and
in forma pauperis, filed this 42 U.S.C. § 1983
action. 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
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
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).
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)).
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
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
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
2. Ms. Oldaker Medical Practioner at Hampton Roads ...