United States District Court, E.D. Virginia, Richmond Division
HERMAN L. BLACK, Plaintiff,
JOSEPH A. HIGGS, JR., et al. Defendants.
HANNAH LAUCK UNITED STATES DISTRICT JUDGE
L. Black, a Virginia inmate proceeding pro se and
in forma pauperis, filed this 42 U.S.C. § 1983
action. The matter is proceeding on Black's
Particularized Complaint ("Complaint, " ECF No.
15.) Black names Joseph A. Higgs and Barbara Meade as
Defendants.Defendants have moved to dismiss. Black has
responded. For the reasons set forth below, the Motions to
Dismiss (ECF Nos. 22, 42) will be GRANTED IN PART AND DENIED
Standard for Motion to Dismiss
individual is proceeding in forma pauperis, this
Court must dismiss the action if the Court determines the
action (1) "is frivolous" or (2) "fails to
state a claim on which relief may be granted." 28 U.S.C.
§ 1915(e)(2). The first standard includes claims based
upon "an indisputably meritless legal theory, " or
claims where the "factual contentions are clearly
baseless." Clay v. Yates, 809 F.Supp. 417, 427
(E.D. Va. 1992) (quoting Neitzke v. Williams, 490
U.S. 319, 327 (1989)), aff'd, No. 93-6534, 1994
WL 520975, at * 1 (4th Cir. Sept. 23, 1994). The second
standard is the familiar standard for a motion to dismiss
under Fed.R.Civ.P. 12(b)(6).
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.'" BellAtl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (omission 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 assert facts that rise above speculation and
conceivability to those that "show" a claim that is
"plausible on its face." Iqbal, 556 U.S.
at 678-79 (quoting Fed.R.Civ.P. 8(a)(2); Twombly,
550 U.S. at 570). "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." Id. at 678 (citing
Twombly, 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) (citations omitted). Lastly, while the Court liberally
construes pro se complaints, Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), it does not
act as the inmate's advocate, sua sponte
developing statutory and constitutional claims 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) (Luttig, J., concurring); Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Summary of Allegations
time he filed the Complaint, Black was incarcerated in the
Jail, awaiting transfer to the Virginia Department of
Corrections to serve his five-year sentence. Black has a
"severe hearing disorder" and requires a hearing
aid. (Compl. 2.) Nurse Meade "has the proof that
[Black has] a severe hearing disorder and needs hearing aids.
She says it's not life threatening, [therefore Black]
somehow needs to come up with the money to pay for the
[hearing aid]." (Id. at 3.) Nurse Meade,
however, knows that Black has no money to pay for the hearing
aid. Superintendent Higgs knows of Black's
"circumstances, knows [Black's] inmate account has
had a negative balance for the past 14 months. Still, he
agrees with the head nurse that [Black] needs to pay for the
hearing aid, [Higgs] knows [Black] can't pay."
(Id.) The lack of a hearing aid has made Black's
hearing "worse." (Id. at 2.) Black
contends that he requires a hearing aid to "get [his]
hearing back" so that he "will be able to hear
what's going on around" him. (Id. at 4.)
demands monetary damages and injunctive relief.
(Id.) Essentially, Black contends that
Defendants' failure to provide a hearing aid violates his
rights under the Eighth Amendment.
Defendants' Arguments for Dismissal
argue that Black's demand for injunctive relief should be
dismissed as moot and his Eighth Amendment claim should be
dismissed for failure to state a claim. For the reasons set
forth below, the Motions to Dismiss will be GRANTED with
respect to the demand for injunctive relief and DENIED with
respect to the Eighth Amendment claim.
the filing of the Complaint, Black has been transferred from
the Jail to the Virginia Department of Corrections
("DOC"). (ECF Nos. 39, 48.) "[A]s a general
rule, a prisoner's transfer or release from a particular
prison moots his claims for injunctive and declaratory relief
with respect to his incarceration there." Rendelman
v. Rouse, 569 F.3d 182, 186 (4th Cir. 2009) (citing
Incumaa v. Ozmint, 507 F.3d 281, 286-87 (4th Cir.
2007); Williams v. Griffin, 952 F.2d 820, 823 (4th
Cir. 1991); Taylor v. Rogers, 781 F.2d 1047, 1048
n.l (4th Cir. 1986)). That is the case here. Black's May
1, 2017 transfer from the Jail to the DOC mooted his claim
for injunctive relief. Accordingly, Black's claim for
injunctive relief in the form of medical care from the Jail
officials will be DISMISSED AS MOOT.