United States District Court, W.D. Virginia, Roanoke Division
DOUGLAS D. HOWARD, Plaintiff,
PULASKI COUNTY D.S.S. and MICHAEL GUERRA, Defendants.
MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE
pro se, plaintiff Douglas D. Howard filed the
instant complaint against the Pulaski County D.S.S. and
Michael Guerra, seeking leave to proceed in forma
pauperis. Because he appears to be indigent, the court
will GRANT Howard's motion to proceed in forma
pauperis. However, after reviewing the complaint, the
court will DISMISS this case pursuant to 28 U.S.C. §
28 U.S.C. § 1915(e)(2)(B), district courts have a duty
to screen initial filings and dismiss a complaint filed in
forma pauperis at any time if the court determines
that the action "(i) is frivolous or malicious; (ii)
fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief." In his complaint, Howard alleges that
on April 12, 2017, he was pulled over and the Pulaski County
D.S.S. was called to the scene. Howard claims that Michael
Guerra administered a urine test "right there on the
spot in front of God and everyone that was passing by on the
road, " and that, as a result, Howard is now unable to
use any public restrooms. He seeks $3 million in damages and
wants Michael Guerra to resign and "never work with any
D.S.S. again." Compl., ECF No. 2.
court is mindful of its obligation to construe pro se filings
liberally. Erickson v. Pardus, 551 U.S. 89, 94
(2007). Nevertheless, this liberal construction requirement
does not mean the court can ignore a clear failure to allege
facts setting forth a cognizable claim. See Weller v.
Dep't of Soc. Serv., 901 F.2d 387, 391 (4th Cir.
1990) ("The 'special judicial solicitude' with
which a district court should view such pro se
complaints does not transform die court into an advocate.
Only those questions which are squarely presented to a court
may be properly addressed."). "A complaint must
contain sufficient factual matter, accepted as true, to
'state a claim of relief that is plausible on its
face.'" Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)); see generally id. at 684-87
(outlining pleading requirements under Rule 8 of the Federal
Rules of Civil Procedure for "all civil actions").
appears to be asserting a violation of his civil rights,
which the court will construe as a claim brought pursuant to
42 U.S.C. § 1983. To state a claim under § 1983, a
plaintiff must allege (1) a violation of a constitutional
right (2) by a person acting under color of state law. Howard
fails to articulate what constitutional rights he claims were
violated when Michael Guerra allegedly administered a urine
screen on the side of die road. Howard does not explain why
Guerra, presumably an employee or agent of the Pulaski County
D.S.S. (although Howard does not allege that he is), was
called to the scene or why Guerra administered a urine screen
or how the production of the urine sample was monitored.
Simply put, Howard fails to state a § 1983 claim for
which relief can be granted. Howard identifies no
constitutional violation, nor does he allege sufficient facts
from which the court can find he states a viable claim that
this urine screen and/or Guerra's actions fell outside of
courts in this district have found that local social services
boards and their departments are arms of the state under
Virginia law and are therefore shielded from liability in
suits for damages by the Eleventh Amendment. See Bell v.
Charlottesville Dep't of Child Protective Servs.,
No. 3:15CV00031, 2015 WL 5316769 (W.D. Va. Sept. 11, 2015);
Kincaid v. Anderson, No. 1:14CV00027, 2015 WL
3546066 (W.D. Va. June 8, 2015); Nelson v. Herrick,
No. 3:11cv00014, 2011 WL 5075649 (W.D. Va. Oct. 26, 2011);
Doe v. Muffins.. No. 2:10cv00017, 2010 WL 2950385
(W.D. Va. July 22, 2010): see also Perry v. Carter,
No. CIVA297-CV-893, 1998 WL 1745365 (E.D. Va. July 27, 1998).
In any event, Howard cannot maintain a § 1983 action
against the Pulaski County D.S.S. because it is not a person
subjection to suit under § 1983. See Sons v.
Trompeter, No. 7:12CV00264, 2012 WL 2450563 (W.D. Va.
June 27, 2012); Muffins, 2010 WL 2950385, at *1;
see also Lewis v. Div. of Child Support Enforcement,
No. 3:10cv894, 2013 WL 5322830 (ED. Va. Sept. 23, 2013).
Howard's complaint fails to state a claim upon which
relief can be granted and/or seeks monetary relief from a
defendant that is immune from suit, the court will dismiss
his case pursuant to 28 U.S.C. § 1915(e)(2)(B). An
appropriate Order will be entered.
 Guerra also may enjoy qualified
immunity and be shielded from liability under § 1983 for
performance of his official duties, provided they did not
violate clearly established statutory or constitutional
rights of which a reasonable person would have known.
Howard's complaint is so wholly lacking in factual
allegations, however, that the court cannot determine whether
Howard is alleging that Guerra is an employee of D.S.S.,
whether he was acting in his official capacity when ...