United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski United States District Judge
Cornelius Gilliam, a Virginia inmate proceeding pro se, had
filed a complaint pursuant to 42 U.S.C. § 1983 naming
the Southwest Virginia Regional Jail ("Jail") as
the sole defendant. The court dismissed the complaint without
prejudice for failing to state a claim upon which relief may
be granted, pursuant to 28 U.S.C. § 1915A, because
Plaintiff did not name a "person" subject to §
1983. The court also granted leave to file an amended
complaint in accordance with Gordon v. Leeke. 574
F.2d 1147, 1152 (4th Cir. 1978). Plaintiff has filed an
amended complaint, but it must also be dismissed without
prejudice because it, too, fails to state a
claim. However, Plaintiff has the opportunity to
file a third pleading in order to state a legal claim against
a proper person.
alleges he is legally blind in his left eye and is going
blind in his right eye and that the Southwest Virginia
Regional Jail Authority and Mediko "do not facilitate
for vision problems." However, he names Major George
Embree and Steve Clear, who are prison administrators, as
1983 requires a showing of personal fault on the part of a
defendant either based on the defendant's personal
conduct or another's conduct in execution of the
defendant's policies or customs. Fisher v. Washington
Metro. Area Transit Author., 690 F.2d 1133, 1142-43 (4th
Cir. 1982), abrogated on other grounds by
Cntv. of Riverside v. McLaughlin, 500 U.S. 44
(1991). However, Plaintiff does not describe any act or
omission by these two defendants, and supervisory liability
under § 1983 may not be predicated on the theory of
respondeat superior. Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 663 n.7, 691-94 (1978);
Bavnard v. Malone. 268 F.3d 228, 235 (4th Cir.
2001). Consequently, the amended complaint fails to state a
claim upon which relief may be granted, and it is dismissed
extent Plaintiff may be able to state a claim upon which
relief may be granted upon a third attempt, Plaintiff is
granted fourteen days to file an amended complaint that
states a claim upon which relief may be granted against a
proper person. See, e.g., Gordon, 574
 The court must dismiss any action or
claim filed by an inmate if it determines that the action or
claim is frivolous or fails to state a claim on which relief
may be granted. See 28 U.S.C. §§ 1915(e)(2),
l9l5A(b)(1); 42 U.S.C. § l997e(c). The first standard
includes claims based upon "an indisputably meritless
legal theory, " "claims of infringement of a legal
interest which clearly does not exist, " or claims where
the "factual contentions are clearly baseless."
Neitzke v. Williams. 490 U.S. 319, 327 (1989). The
second standard is the familiar standard for a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6),
accepting a plaintiffs factual allegations as true. A
complaint needs "a short and plain statement of the
claim showing that the pleader is entitled to relief and
sufficient "[f]actual allegations ... to raise a right
to relief above the speculative level...." Bell Atl.
Corp. v. Twombly. 550 U.S. 544, 555 (2007) (internal
quotation marks omitted). A plaintiffs basis for relief
"requires more than labels and conclusions ...."
Id. Therefore, a plaintiff must "allege facts
sufficient to state all the elements of [the] claim."
Bass v. E.I. Dupont de Nemours & Co.. 324 F.3d
761, 765 (4th Cir. 2003).
Determining whether a complaint states a plausible
claim for relief is "a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense." Ashcroft v.
Iqbal. 556 U.S. 662, 678-79 (2009). Thus, a court
screening a complaint under Rule 12(b)(6) can identify
pleadings that are not entitled to an assumption of truth
because they consist of no more than labels and conclusions.
Id. Although the court liberally construes a pro se
complaint, Haines v. Kerner. 404 U.S. 519, 520-21
(1972), the court does not act as an inmate's advocate,
sua sponte developing statutory and constitutional
claims not clearly raised in a 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); see also Gordon, 574
F.2d at 1151 (recognizing that a district court is not
expected to assume the role of advocate for a pro se
 If the court does not receive anything
from Plaintiff within twenty-one days, the Clerk shall strike
the case from the active docket. Thereafter, Plaintiff would
still be able to refile his claims in a new and separate
action at the time of his choice subject to the applicable