United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
Champion, a federal inmate proceeding pro se and in
forma pauperis, filed this action seeking relief
under Bivensand the Federal Tort Claims Act
("FTCA"), 28 U.S.C. §§ 1346, 2671, et
seq. The matter is before the Court on the Motion to
Dismiss filed by Defendant Seven Corners, LLC ("Seven
Corners"). (ECF No. 24.) For the reasons set forth
below, the Motion (ECF No. 24) will be granted.
STANDARD OF REVIEW
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 H.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)).
considering a motion to dismiss for failure to state a claim,
a plaintiff's 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 Atl. 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, " rather than merely
"conceivable." Id. 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." Iqbal, 556 U.S. at 678 (citing
Bell Atl. Corp., 550 U.S. at 556). Therefore, 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)).
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 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 AND CLAIMS
is a federal prisoner, currently incarcerated at the Federal
Correctional Complex, in Petersburg, Virginia ("FCC
Petersburg"). (Compl. 1, ECF No. I.) "In late
2013, Plaintiff's colon became infected while on house
arrest under the custody of the Federal Government. On
December 24, 2013, Plaintiff had surgery to remove the
infection while on federal house arrest at Roanoke Valley
Hospital . . . ." (Id. at 8.) The surgeon
informed Champion that the surgery would have to be completed
at a later date because of complications. (Id.) Due
to the fact that the surgery was not completed, Champion was
left with a colostomy bag. (Id.) The surgeon
informed Champion that he would be able complete the surgery
so that Champion could have "anatomically correct bowel
movements once [Champion] healed and lost weight."
(Id. at 8-9.)
April 28, 2014, Champion was moved to FCC Petersburg.
(Id. at 9.) Despite the fact that Champion has
healed and lost weight, doctors and officials at FCC
Petersburg have not performed surgery to remove the colostomy
bag. (Id. at 9-13.)
respect to Seven Corners, the sum of Champion's
allegations are as follows:
On February 23, 2016 Doctor Piscatelli was notified by Seven
Corners that Dr. Raydue want[ed] to do another evaluation
tomorrow. Defendant Seven Corners, LLC is the appointment
scheduling contractor [for FCC Petersburg].
On February 24, 2016, Dr. Raydue ordered a third CT scan and
another colonoscopy due to the amount of time that had
elapsed since the last CT scan ...