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Barner v. Allen

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

May 19, 2017

SGT. B. ALLEN, et al, Defendants.


          M. Hannah Lauck United States District Judge

         DaQuan Charlie Barner, a Virginia inmate proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983 action.[1] The action proceeds on Barner's Particularized Complaint ("Part. Compl., " ECF No. 23).[2] The matter is before the Court pursuant to the Motion to Dismiss filed by Defendant Sgt. B. Allen.[3] (ECF No. 28.) Barner filed a Response (ECF No. 30), and Sgt. B. Allen filed a Reply (ECF No. 31). Barner has also filed a Motion for an Extension of Time to file a Surreply (ECF No. 34), as well as his proposed Surreply (ECF No. 35). Barner's Motion for an Extension of Time will be GRANTED and his Surreply will be DEEMED timely filed. For the reasons that follow, Sgt. B Allen's Motion to Dismiss (ECF No. 28) will be DENIED.

         I. Standard for Motion to Dismiss for Failure to State a Claim

         "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 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).

         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 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, 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 or her complaint. See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Lurtig, J., concurring); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

         II. Summary of Allegations and Claims

         In his Particularized Complaint, Barner alleges:[4]

Deliberate indifference was shown when on or about January 25, 2015 Defendant Sgt. B. Allen opened the door to Pod HA-400, and I was attacked and assaulted by Devin Rawls after he had been added to my "keep separate" list upon my request on January 11, 2015. Sgt. B. Allen either knew, or should have known, that Devin Rawls was on my "keep separate" list since I had him added to that list over two weeks before this incident. Devin Rawls killed my friend Randy Pope the previous year. Shortly after my arrival at Southside Regional Jail Devin Rawls told me he was going to kill me also. That is when I had him added to my "keep separate" list. I told Sgt. Brown about Devin Rawls' threat, and Sgt. Brown added Devin Rawls to my keep separate list.
I was injured because Defendant Sgt. B. Allen was deliberately indifferent to my safety. I sustained personal bodily injuries, including a contusion on the back of my head. I also sustained psychological injuries, including PTSD, for which I continue to be under a doctor's care and take medication.
My Eighth Amendment right under the Constitution of the United States to be free from cruel and unusual punishment was denied by the actions and inactions of Defendant Sgt. B. Allen as stated in paragraphs numbered 1 and 2 above.
I believe if a ranking officer such as SGT. B. Allen would have taken her job seriously, I would have never been viciously assaulted by Devin Rawls who is an inmate that I had placed on my keep separate list to prevent something like this from occurring. Now I suffer from PTSD and take medication twice a day because of the severity of my symptoms.

(Part. Compl. 1-2 (paragraph numbers omitted).)

         The Court construes Barner's Complaint to raise the following claim for relief:

Claim One: Sgt. B. Allen violated Barner's rights under the Eighth Amendment[5] when she failed to protect Barner from an ...

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