United States District Court, W.D. Virginia, Roanoke Division
ANTWON G. WHITTEN, Plaintiff,
LESLIE FLEMING, et al, Defendant.
Elizabeth K. Dillon United States District Judge
Antwon G. Whitten, a Virginia inmate proceeding pro
se, filed a civil rights action pursuant to 42 U.S.C.
§1983, alleging that the defendants violated his rights
concerning a sexual assault complaint he filed at Wallens
Ridge State Prison. The court finds that Whitten's
allegations fail to state a cognizable federal claim;
therefore, the court will dismiss this action without
prejudice pursuant to 28 U.S.C. §
alleges that on October 31, 2015, his cellmate sexually
assaulted him by touching his buttocks. Whitten reported the
incident to prison officials. After an investigation, prison
officials determined that Whitten's complaint was
argues that the defendants failed to follow Virginia
Department of Corrections (VDOC) policies concerning
complaints filed under the Prison Rape Elimination Act
(PREA); failed to sufficiently investigate the matter; failed
to believe his version of the incident; failed to explain why
they did not believe him; and called him a liar. Whitten
states that the defendants' actions left him
“harmed emotionally” and put his safety “at
risk of harm.” As relief, Whitten seeks a declaration
that the defendants violated his rights, an apology from two
of the defendants, and damages.
state a claim for relief under § 1983, a plaintiff must
allege facts indicating that plaintiff has been deprived of
rights guaranteed by the Constitution or laws of the United
States and that this deprivation resulted from conduct by a
person acting under color of state law. West v.
Atkins, 487 U.S. 42, 48-49 (1988). A plaintiff must
assert factual allegations that raise a right to relief that
is “plausible on its face, ” not one that is
speculative or merely “conceivable.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The
court must dismiss an action or claim filed by a prisoner
against an employee of a governmental entity if the action or
claim is frivolous, malicious, or fails to state a claim upon
which relief may be granted. 28 U.S.C. § 1915A(b)(1). In
this case, Whitten's allegations do not demonstrate the
violation of any federal right; thus, the court will dismiss
the complaint without prejudice for failure to state a claim.
VDOC Policy Violation
extent Whitten claims that the defendants violated VDOC
policies, his allegations fail to state a cognizable federal
claim. See Riccio v. Cty. of Fairfax, 907 F.2d 1459,
1469 (4th Cir. 1990) (holding that violations of state
procedural rules do not present a federal due process issue
and, as such, are not actionable under § 1983).
Accordingly, the court will dismiss this claim.
extent Whitten contends that the defendants violated PREA by
their “deliberate indifference” and failure to
investigate his sexual assault allegation, the claim also
fails. This court and others have found no basis in law for a
private cause of action under § 1983 to enforce an
alleged PREA violation. See, e.g., Snodgrass v.
Messer, No. 7:16cv00050, 2017 U.S. Dist. LEXIS 34329, at
*14-15 (W.D. Va. Mar. 10, 2017); Chapman v. Willis,
No. 7:12cv00389, 2013 U.S. Dist. LEXIS 74694, at *12-14, 2013
WL 2322947, at *4 (W.D. Va. May 28, 2013); Berry v.
Eagleton, No. 13-2379, 2014 U.S. Dist. LEXIS 121552, at
*21-22, 2014 WL 4273314, at * 10 (D.S.C. Aug. 29, 2014)
(citing other cases). Thus, Whitten fails to state a §
1983 claim based on an alleged violation of the PREA, and the
court will dismiss this claim.
Prison Complaint Unfounded
extent Whitten alleges that the defendants violated his
federal rights by finding his sexual assault complaint
unfounded, discrediting his testimony, or insufficiently
investigating his allegations, he fails to state a cognizable
against a prisoner on an administrative complaint does not
cause or contribute to [a constitutional] violation, ”
George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007).
Moreover, failure to investigate a prisoner complaint or
grievance does not assert a due process violation. See
Charles v. Nance, 186 F. App'x 494, 495 (5th Cir.
2006); Sweat v. Rennick, No. 9:11-2908-JMC-BM, 2012
U.S. Dist. LEXIS 55200, at *5, 2012 WL 1358721, at *2 (D.S.C.
Feb. 7, 2012) (“Plaintiff's complaint that this
Defendant has not properly investigated his claims . . .
fails to set forth a claim for a violation of a