United States District Court, E.D. Virginia, Richmond Division
RONNELL A. GREGORY, Petitioner,
HAROLD CLARKE, Respondent.
MEMORANDUM OPINION (DISMISSING PETITION FOR WRIT OF
E.HUDSON UNITED STATES DISTRICT JUDGE.
Gregory, a Virginia inmate proceeding pro se and
in forma pauperis, submitted a "Motion to
Produce Documents" that, in essence, is a petition for a
writ of mandamus ("Petition, " ECF No. 1). 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 5 A
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, 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.'" BellAtl. 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, " stating a claim
that is "plausible on its face, " rather than
merely "conceivable." Id. at 555, 570
(citation omitted). "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 BellAtl. 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, 574 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. 1985).
SUMMARY OF PETITION
Petition, Gregory states:
On August 13, 2015, the defendant, Ronnell Antonio Gregory,
filed [in] the [Circuit] Court [for the City of Virginia
Beach, Virginia] a postconviction request for evidence
testing pursuant to [Virginia Code §] 19.2- 327.1. On
October 6, 2015, the Honorable William R. O'Brien
enter[ed] an order granting the Commonwealth 30 days from
said order to respond.
On December 1, 2015 defendant Gregory filed in [the Circuit]
Court a "Motion for Default/Summary Judgment"
because the Commonwealth did not receive[the] court order of
October 6, 2015 until December 8, 2015, but the Commonwealth
has failed or refused to provide the defendant Gregory with
any documentation, nor has [the Circuit] Court provided the
defendant Gregory with any documentation that . . . would
provide a December 8, 2015 date or any other date as proof of
the exact date the Commonwealth received [the Circuit] Court
order to file a responsive pleading in [this] matter. The
defendant Gregory is clearly entitled to any documentation
that would be proof of what date the Commonwealth received
[the Circuit] Court's order of October 6, 2015 giving the
Commonwealth 30 days to file a responsive pleading within the
30 days time limit issued in [the Circuit] Court's order
of October 6, 2015 and has alleged that its failure to file a
responsive pleading 30 days from October 6, 2015 was due to
[the Circuit] Court's error in supplying the Commonwealth
with [the Circuit] Court's order of October 6, 2015 until
December 8, 2015. The rules of the Virginia Supreme Court
clearly dictate rules of engagement when it comes to
litigation. Once [the Circuit] Court issued an order of
October 6, 2015, time for which the Commonwealth had to file
its responsive pleading, the Commonwealth was under [the
Circuit] Court's ordered time frame and failure to comply
would clearly place the Commonwealth in violation of [the
Circuit] Court's order and rules of the Virginia Supreme
The only authorization extending the time for which the
Commonwealth had to respond is either by approval of a motion
for extension of time filed by the Commonwealth or by some
circumstance that was completely out of the
Commonwealth's control and if such had occurred, then the
defendant as party to the action before the court is
entitle[d] to such notice and without such notice to the
defendant the Commonwealth is presumed to be in violation of
the [Circuit] Court's order of October 6, 2015 and
presumed to be in default and is in violation of the rules of
the Virginia Supreme Court. Therefore, the defendant because
of the importance of the alleged December 8, 2015 date by the
Commonwealth as proof by the Commonwealth as a date the
Commonwealth had received the [Circuit] Court's order of
October 6, 2015 as proof that the Commonwealth had not
violated the [Circuit] Court order of October 6, 2015 or the
rules of the Virginia Supreme Court, the defendant is
entitled to such documentation to ensure that the playing
field is fair, and the defendant's constitutional rights
to due process have not been violated, suppression by the
prosecution of evidence favorable to an accused upon request
violates due process.
seeks for this Court to "order Virginia Beach
clerk's office [for the Circuit Court] and or the
Virginia Beach commonwealth's attorney's office to
produce the document that the commonwealth attorney presented
to the court on 1-19-16 stating that she did not receive the
court order until 12-8-15." (Id. at 3.) This
Court, however, lacks jurisdiction to grant mandamus relief
against state officials or state agencies. Gurley v.
Superior Court of Mecklenburg Cty.,411 F.2d 586, 587
(4th Cir. 1969); Islam v. Va. Supreme Court, No.
3:07CV418, 2007 WL 3377884, at *1 (E.D. Va. ...