United States District Court, W.D. Virginia, Roanoke Division
Thomas Hurd, Pro Se Plaintiff.
P. Jones United States District Judge
Lionel Thomas Hurd, a Virginia inmate proceeding pro se, has
filed an Amended Complaint under the Civil Rights Act of
1871, 42 U.S.C. § 1983. He asserts that prison officials
failed to protect him from an assault by another inmate. I
conclude that Hurd's Amended Complaint must be summarily
dismissed with prejudice for failure to state a claim upon
which relief may be granted.
initial Complaint was dismissed without prejudice upon my
finding that his allegations failed to state a claim because
he did not allege personal involvement by any prison
official. See 28 U.S.C. § 1915A(b)(1). Hurd
appealed. The United States Court of Appeals for the Fourth
Circuit held that “[b]ecause Hurd may be able to remedy
the pleading deficiencies identified by the district court by
filing an amended complaint, we conclude that the order Hurd
seeks to appeal is neither a final order nor an appealable
interlocutory or collateral order.” Hurd v.
Robichaux, 696 F. App'x 122 (4th Cir. 2017)
(unpublished) (citing Goode v. Cent. Va. Legal
Aid Soc'y, Inc., 807 F.3d 619, 623-24 (4th Cir.
2015) and Domino Sugar Corp. v. Sugar Workers Local Union
392, 10 F.3d 1064, 1066-67 (4th Cir. 1993)). The court
of appeals thus dismissed the appeal for lack of
jurisdiction, but remanded the case to permit Hurd to file an
amended complaint. Accordingly, following the issuance of its
mandate by the court of appeals, I directed Hurt to submit an
clearly titled as such, identifying all defendants, and
making a full and complete statement of all of his claims,
the facts in support thereof, and the relief requested. Such
an Amended Complaint will replace all of Hurd's previous
submissions, and I will not consider those prior submissions
in deciding his claims.
Oct. 18, 2017, ECF No. 31. Hurd then filed an Amended
Complaint, alleging the following facts.
fall of 2016, Hurd was incarcerated at Marion Correctional
Treatment Center (the “prison” or
“MCTC”). He had a prison job as a barber. On
November 3, Hurd entered the secured wing of the prison to
cut inmates' hair. D. Bowler, an inmate committed for
mental health treatment, punched Hurd in the face. Hurd filed
an assault charge against Bowler with the local state court,
with unspecified results. Hurd's submissions indicate
that as a result of Bowler's assault, he suffered a
bruise on his cheek and headaches. The medical staff provided
him with ice for his cheek and pain medication for the
to Hurd, Bowler is serving a life sentence and had been
committed to MCTC by court order for mental health treatment.
State law authorizes the Director of the Virginia Department
of Corrections or his designee to petition a state court
judge for commitment of a prisoner for treatment.
Va. Code Ann. § 53.1-40.1(A). The court may order such
commitment if clear and convincing evidence shows that the
inmate “is incapable, either mentally or physically, of
giving informed consent to such treatment” and such
treatment is in his best interests. Id. Hurd
contends that Bowler's commitment under this section put
the MCTC medical staff and warden on notice that Bowler was
dangerous. Bowler was also a high security inmate, while Hurd
was a low security inmate. The MCTC staff failed to place
Bowler in handcuffs or shackles before allowing Hurd to enter
the secured area to cut his hair.
defendants to his § 1983 claims, Hurd has named the
warden of the prison, Dara Robichaux, MCTC, and
“staff.” Am. Compl. 1, ECF No. 32. He contends
that the warden and the staff should be liable to him for
monetary damages because Bowler was committed to their care
when the assault occurred.
required to dismiss any action or claim filed by a prisoner
against a governmental entity or officer if I determine 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). To state a cause of action under
§1983, a plaintiff must establish that he has been
deprived of rights guaranteed by the Constitution or laws of
the United States and that this deprivation resulted from
conduct committed by a person acting under color of state
law. West v. Atkins, 487 U.S. 42, 48 (1988).
initial matter, Hurd has no legal basis for § 1983
claims against MCTC. “[N]either a State nor its
officials acting in their official capacities are
‘persons' under § 1983, ” and this rule
also applies to “governmental entities that are
considered ‘arms of the State' for Eleventh
Amendment purposes.” Will v. Mich. Dep't of
State Police, 491 U.S. 58, 70-71 (1989). Because the
prison is properly considered an arm of the Commonwealth of
Virginia, it cannot be sued under § 1983.
the warden and individual prison staff members are persons
subject to suit under § 1983, Hurd has failed to state
any claim against any of them for other reasons. In a §
1983 action, “liability will only lie where it is
affirmatively shown that the official charged acted
personally in the deprivation of the plaintiff['s]
rights.” Vinnedge v. Gibbs, 550 F.2d 926, 928
(4th Cir. 1977) (internal quotation marks, citations and
alterations omitted). Given this requirement to show
individual involvement, Hurd cannot proceed with any §
1983 claim against MCTC's medical staff as a group. He
has not identified any individuals in this group with
particular responsibility for Bowler's care in November
2016 or stated facts about actions any such individual
personally took that, in any way, caused Hurd's injuries.
Moreover, even if Hurd could show that some medical staff
member erred ...