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Black v. Higgs

United States District Court, E.D. Virginia, Richmond Division

September 13, 2017

HERMAN L. BLACK, Plaintiff,
JOSEPH A. HIGGS, JR., et al. Defendants.



         Herman L. Black, a Virginia inmate proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983 action.[1] The matter is proceeding on Black's Particularized Complaint ("Complaint, " ECF No. 15.) Black names Joseph A. Higgs and Barbara Meade as Defendants.[2]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 IN PART.

         I. Standard for Motion to Dismiss

         When an 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).

         "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).

         The 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).

         II. Summary of Allegations

         At the 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.)[3] 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.)

         Black 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.[4]

         HI. Defendants' Arguments for Dismissal

         Defendants 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.

         A. Mootness

         Since 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.

         B. ...

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