United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge.
Ebron, a Virginia inmate proceeding pro se, filed
this 42 U.S.C. § 1983 action. On February 21, 2017, the
Court received an Amended Complaint (ECF No. 9), as well as a
Motion for Leave to Amend (ECF No. 10), from Ebron. The Court
will grant Ebron's Motion for Leave to Amend. The action
therefore proceeds on Ebron's Amended Complaint. The
matter is before the Court for evaluation pursuant to 28
U.S.C. §§ 1915(e) (2) and 1915A.
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).
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, " id. at 570, rather than merely
"conceivable." Id. "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) . In order for a claim or complaint to survive
dismissal for failure to state a claim, therefore, 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)). 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).
Summary of Allegations
a Virginia inmate eligible for discretionary parole, brings
this action against Karen D. Brown, Chairman of the Virginia
Parole Board ("VPB"), and the VPB itself. (Am.
Compl. 1-2.) In April of 2015, the VPB reviewed Ebron
for release on discretionary parole. (Am. Compl. Ex. C, at 1,
ECF No. 9-3.)
denied Ebron's release on parole on the following
• Release at this time would diminish seriousness of
• Serious nature and circumstances of your offense(s)
• History of violence.
March of 2016, the VPB again reviewed Ebron for release on
discretionary parole. (Am. Compl. Ex. A, at 1, ECF No. 9-1.)
The VPB denied ...