United States District Court, W.D. Virginia, Roanoke Division
Jackson L. Kiser Senior United States District Judge.
Wilson Woods, Jr., a Virginia inmate proceeding pro se, filed
a letter that the court construed as commencing an action
pursuant to 42 U.S.C. § 1983 against unnamed officials.
The court conditionally filed the action and ordered
Plaintiff to, inter alia, amend the complaint to
comply with Federal Rules of Civil Procedure. The court
informed Plaintiff that a proposed amended complaint would
have to stand on its own "without reference to the
original complaint, attachments, or amendments already
filed." In response, Plaintiff filed a motion to amend
and a motion for a temporary restraining order
("TRO") seeking a transfer to another prison.
Finding it appropriate to do so, the motion to amend is
granted, the named defendants are substituted for defendant
"Unknown, " the amended complaint is dismissed
without prejudice for failing to state a claim upon which
relief may be granted, and the motion for a TRO is denied.
amended complaint names several staff at the Middle River
Regional Jail: Superintendent Jack Lee and Doctors Quinones,
Munsey, and Hereford. The amended complaint alleges in
Medical neglect / medical malpractice[:] I sustain[ed] two
cuts on both feet that... required stitching /1 was refused
medical care .... I sustain[ed] left knee damages [when] I
fell in the shower without shower shoes and without shower
mats .... I had surgeries on my left shoulder for broken
should[er] [and] placement of [titanium] steel plate [by] Dr.
Godett [who] put [two]... screws in it [but] required second
requests $1 billion.
dismiss an 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), l9l5A(b)(1); 42 U.S.C. §
l997e(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).
dismiss the amended complaint without prejudice. Section 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). Plaintiff fails to
relate any issue with his medical care to any personal act or
omission by a defendant.
Plaintiff presently fails to establish that he presently is
likely to succeed on the merits, that the balance of equities
presently tips in his favor, and that a TRO presently is in
the public interest. See, e.g.. Winter v.
Nat'l Res. Defense Council, Inc., 555 U.S. 7, 19-22
(2008). Accordingly, the motion for a TRO is denied.
extent Plaintiff may be able to state a claim upon which
relief may be granted against a person acting under color of
state law, Plaintiff is granted ten days to file a motion to
amend the amended complaint. 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 another
amendment in this case, he should know that I may dismiss the
second 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 W L 440187, at
*1 (W .D. Mich. Dec. 13, 2007)
 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 pro se
complaints, 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 ...