United States District Court, W.D. Virginia, Roanoke Division
Jackson L. Kiser, Senior United States District Judge.
Paul Dunleavy, a Virginia inmate proceeding pro se, filed a
complaint pursuant to 42 U.S.C. § 1983 naming three
defendants: "Medical and Mental Health Dept, "
Major George Hembree, and Captain Brian Parks. Plaintiff
generally alleges that his medical needs are not being met at
the Duffield Regional Jail. This matter is before me for
screening, pursuant to 28 U.S.C. § 1915A.
1983 requires a showing of personal fault on the part of a
defendant either based on the defendant's personal
conduct or another's conduct in execution of the
defendant's policies or customs. Fisher v. Washington
Metro, Area Transit Author., 690 F.2d 1133, 1142-43 (4th
Cir. 1982), abrogated on other grounds by
Cnty. of Riverside v. McLaughlin, 500 U.S. 44
(1991). However, Plaintiff does not describe any personal act
or omission by defendant Hembree or Parks, and consequently,
the complaint fails to state a claim upon which relief may be
granted against them. Furthermore, Medical and Mental Health
Dept." is not a "person" for purposes of
§ 1983. See, e.g.. Will v. Michigan
Dep't of State Police, 491 U.S. 58, 70 (1989);
West v. Atkins, 487 U.S. 42, 48 (1988); Ferguson
v. Morgan, No. I:90cv06318, 1991 U.S. Dist. LEXIS 8295,
1991 WL 115759, at *1 (S.D.N.Y. June 20, 1991) (concluding
that a group of personnel, like "medical staff, "
is not a "person" for purposes of § 1983).
Accordingly, I dismiss the complaint without prejudice,
pursuant to 28 U.S.C. § 1915A(b)(1), for failing to
state a claim upon which relief may be granted.
extent Plaintiff may be able to name a "person"
subject to suit via § 1983, Plaintiff is granted ten
days to file a motion to amend the "complaint that
states a claim upon which relief may be granted against a
person acting under color of state law. See, e.g.,
Gordon, 574 F.2d at 1152.
may find it preferable to take longer than ten days to
consult legal resources, think about his allegations, and
file a new complaint in a new and separate action. If
Plaintiff chooses not to file the motion within ten days,
Plaintiff would not be prejudiced because he is allowed to
file a complaint in a new and separate action at the time of
his choice subject to the applicable limitations period.
See, e.g., Owens v. Okure, 488 U.S. 235, 249-50
(1989); Va. Code § 8.01-243(A).
Plaintiff instead rushes and chooses to seek an amendment in
this case, he should know that the court may dismiss the
amended complaint with prejudice as frivolous or for
failing to state a claim upon which relief may be granted and
assess a "strike." Plaintiff should understand that
he is allowed only three "strikes" from both
complaints in district courts and appeals in courts of
appeals before he is no longer allowed to proceed in
forma pauperis without prepaying the $400 filing fee
absent certain conditions. Congress created this
"three-strikes" rule as an economic incentive for
prisoners to "stop and think" before filing a
complaint. See, e.g., Rogers v. Bluhm, No.
1:07cv1177, 2007 U.S. Dist. LEXIS 91646, 2007 WL 440187, at
*1 (W.D. Mich. Dec. 13, 2007).
 I must dismiss any action or claim
filed by an inmate if I determine that the action or claim is
frivolous or fails to state a claim on which relief may be
granted. See 28 U.S.C. §§ 1915(e)(2), 1915A(b)(1);
42 U.S.C. § 1997e(c). The first standard includes claims
based upon "an indisputably meritless legal theory,
" "claims of infringement of a legal interest which
clearly does not exist, " or claims where the
"factual contentions are clearly baseless."
Neitzke v. Williams, 490 U.S. 319, 327 (1989). The
second standard is the familiar standard for a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6),
accepting a plaintiffs factual allegations as true. A
complaint needs "a short and plain statement of the
claim showing that the pleader is entitled to relief and
sufficient "[f]actual allegations ... to raise a right
to relief above the speculative level...." Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks omitted). A plaintiffs basis for relief
"requires more than labels and conclusions ...."
Id. Therefore, a plaintiff must "allege facts
sufficient to state all the elements of [the] claim."
Bass v. E.I. Dupont de Nemours & Co., 324 F.3d
761, 765 (4th Cir. 2003).
Determining whether a complaint states a plausible
claim for relief is "a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense." Ashcroft v.
Iqbal,556 U.S. 662, 678-79 (2009). Thus, a court
screening a complaint under Rule 12(b)(6) can identify
pleadings that are not entitled to an assumption of truth
because they consist of no more than labels and conclusions.
Id. Although I liberally construe a pro se
complaint, Haines v. Kerner,404 U.S. 519, 520-21
(1972), I do not act as an inmate's advocate, sua
sponte developing statutory and constitutional
claims not clearly raised in a 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 ...