United States District Court, E.D. Virginia, Richmond Division
MR. LEONARD CARTER, JR., Plaintiff,
MR. HENRY E. HUDSON, etai, Defendants.
A. Gibney, Jr. United States District Judge.
Carter, Jr., a Virginia inmate proceeding pro se and
in forma pauperis, filed this civil action. The
matter is before the Court for evaluation pursuant to 28
U.S.C. §§ 1915(e)(2) andl915A.
to the Prison Litigation Reform Act ("PLRA") this
Court must dismiss any action filed by an individual
proceeding in forma pauperis 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 plaintiffs 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, 1 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 Ail. 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,
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, SI A F.2d 1147, 1151 (4th Cir. 1978), it will not
act as the inmate's advocate and develop, sua
sponte, statutory and constitutional claims that 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.
SUMMARY OF ALLEGATIONS
lengthy and rambling Complaint, which is composed from
several documents, Carter has named United States District
Judge Henry E. Hudson, as well as Virginia Department of
Corrections ("VDOC") employees Harold W. Clarke, A.
David Robinson, Bryan Watson, Benjamin Wright, Y.M. Taylor,
Wend W. Pixley, and Keith Dawkes (collectively, "VDOC
Defendants"), as Defendants. (Compl. 1-3, ECF No.
The majority of Carter's Complaint, however, contains
allegations that do not involve the named Defendants. Upon
review of Carter's Complaint, particularly the
"Statement of the Claim" section, the Court has
construed the following claims against the named Defendants:
Claim One: The named Defendants conspired to murder
Carter's brother, Vincent Burrett Carter, by illegally
transporting him to River North Correctional Center.
(Id. at 7.)
Claim Two: The VDOC Defendants violated Carter's right to
freedom of speech under the First Amendment by failing to
provide him with informal complaint forms and by failing to
properly process his grievances. (Id. at 8-10.)
Claim Three: Judge Hudson violated the Code of Judicial
Conduct by erroneously ruling on October 28, 2010, that
Carter had at least three previous actions that were
dismissed as frivolous, malicious, or for failure to state a
claim. (Id. at 12.)
alleges that his constitutional claims arise under 28 U.S.C.
§ 1331, which provides that "[t]he district courts
shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United
States." 28 U.S.C. § 1331. Judge Hudson is a
federal official, so Carter apparently invokes
Bivens for his claims against him.
Carter's claims against the VDOC Defendants, however,
would properly be brought under 42 U.S.C. §
1983.Nevertheless, because Carter's claims
are so apparently lacking in merit, the Court will dismiss
his Complaint in its entirety.
order to state a viable claim under Bivens, a
plaintiff must allege that a person acting under color of
federal authority deprived him or her of a constitutional
right. See Goldstein v. Moatz,364 F.3d 205, 210 n.8
(4th Cir. 2004) (citing Bivens, 403 U.S. at 389). In
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). "[A] plaintiff must plead
that each Government-official defendant, through the
official's own individual actions, has violated the
Constitution." Ashcroft v. Iqbal,556 U.S. 662,
676 (2009). Accordingly, the plaintiff ...