United States District Court, E.D. Virginia, Richmond Division
Hannah Lauck United States District Judge
Charlie Barner, a Virginia inmate proceeding pro se
and in forma pauperis, filed this 42 U.S.C. §
1983 action. The action proceeds on Barner's
Particularized Complaint ("Part. Compl., " ECF No.
The matter is before the Court pursuant to the Motion to
Dismiss filed by Defendant Sgt. B. Allen. (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.
Standard for Motion to Dismiss for Failure to State 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).
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).
Summary of Allegations and Claims
Particularized Complaint, Barner alleges:
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
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
(Part. Compl. 1-2 (paragraph numbers omitted).)
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 when she failed to protect Barner from an