United States District Court, E.D. Virginia, Richmond Division
A. Gibney. Jr. United States District.
Lee Anderson, II, a Virginia inmate proceeding pro
se and in forma pauperis, filed this 42 U.S.C.
§ 1983 action. The matter is before the Court on
Defendant Phillips's Motion to Dismiss, the Court's
own review under 28 U.S.C. § 1915(e)(2), and several
other motions filed by Anderson. For the reasons stated
below, the Motion to Dismiss (ECF No. 19) will be GRANTED.
STANDARD FOR MOTION TO DISMISS
to the Prison Litigation Reform Act ("PLRA") this
Court must dismiss any action filed by a prisoner 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); see 28
U.S.C. § 1915A. 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, 36 F.3d 1091 (4th
Cir. 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 5A
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.'" Bell At I. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (second alteration
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 allege facts sufficient "to raise a right
to relief above the speculative level, " id.
(citation omitted), stating a claim that is "plausible
on its face, " id. at 570, rather than merely
"conceivable." Id. "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."
Iqbal, 556 U.S. at 678 (citing Bell Atl.
Corp., 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) (citing Dickson v. Microsoft Corp., 309 F.3d
193, 213 (4th Cir. 2002); Iodice v. United States,
289 F.3d 270, 281 (4th Cir. 2002)). Lastly, while the Court
liberally construes pro se complaints, Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), it will not
act as the inmate's advocate and develop, sua
sponte, statutory and constitutional claims that the
inmate failed to clearly raise on the face of his 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 PERTINENT ALLEGATIONS
November of 2014, Anderson was confined in the Augusta
Correctional Center ("A.C.C."). (Compl. 4-5, ECF
No. I.) Anderson was lifting weights, when an
accident occurred and his elbow was crushed. (Id. at
4.) Thereafter, Anderson received some medical care and was
transferred to Greensville Correctional Center
("G.C.C."). (Id. 4-5.) Anderson contends
that, "[i]f surgery had been done in an appropriate time
line, it would have reduced the amount of damage done to both
the nerves and the cartilage." (Id. at 4.)
Phillips is a human resource assistant at G.C.C. (ECF No.
1-1, at 3.) Anderson contends that he exhausted "his
administrative remedies through all grievance processes until
... intentional [and] complete denial of grievance process
once [he] arrived at G.C.C. by Ms. Phillips"
(Id.) Specifically, Defendant Phillips "refused
to release first filed grievances filed at A.C.C. prior to
transfer to G.C.C. on Jan. 13, 2016, where plaintiff sent for
those grievances filed at A.C.C.. .." (Id.)
Anderson alleges that Defendant Phillips is "harboring
the grievance documents regarding his health and well-being,
prolonging redress in order to get surgery now going on 24
months...." (Id.) Phillips contends that such
actions violate his rights under the First, Fourth, and
Fourteenth Amendments. (Id.)
hardly clear, review of the documents attached to the
Complaint suggests that Anderson's claims are predicated
on Defendant Phillips's failure to provide him with free
copies of some medical records and a grievance pertaining to
Anderson's elbow injury. For example, on September 3,
2016, Anderson wrote an informal complaint wherein he
Ms. Phillips in Grievance Office came to me 3 weeks ago in
regards to my records of my fractured right elbow from A.C.C.
where I have yet to receive them, "delay and hindering,
" obstructing justice, denied access to the court,
interfering with court proceeding, where I [have been]
without surgery for over 20 months and Ms. Phillips is the
one person to have acknowledged that these records were here.
This is an 8th Amendment violation ....
No. 1-6, at 3.) In response, Ms. Phillips informed Anderson
that she would provide Anderson with the pertinent copies if
he paid for them and provided her with a receipt reflecting
the same. (Id.)
did not like that response and on September 19, 2016, wrote
an Offender Request demanding copies of the records.
(Id. at 4.) In response, another prison official, S.
Tapp, informed Anderson, "You were told on 9/13/16 that
you had not provided any receipt for the copies. That even
though you may be indigent, you must still go through the
Business Office. Your lawyer, if ...