United States District Court, W.D. Virginia, Roanoke Division
Jackson L. Riser Senior United States District Judge.
Daniel Justice, a Virginia inmate proceeding pro se, filed a
complaint pursuant to 42 U.S.C. § 1983 naming two
defendants: the Southwest Virginia Regional Jail
("S.W.V.R.J.") in Abingdon, Virginia
("Jail"), and its "Medical Department."
Plaintiff generally alleges that his medical needs are not
being met, he is being threatened, and the Jail fails to
comply with a sentencing order. This matter is before me for
screening pursuant to 28 U.S.C. § 1915A.
the Jail nor the Medical Department is is an appropriate
defendant amenable to suit via § 1983. See West v.
Atkins, 487 U.S. 42, 48 (1988) (recognizing a §
1983 claim must allege the violation of a federal right by a
person acting under color of state law); Preval v.
Reno, 57 F.Supp.2d 307, 310 (E.D. Va. 1999) ("[T]he
Piedmont Regional Jail is not a "person, " and
therefore not amenable to suit under 42 U.S.C. §
1983."), aff'd in part and
rev'd in part, 203 F.3d 821 (4th Cir.
2000), reported in full-text format at 2000 U.S. App. LEXIS
465, at *3, 2000 WL 20591, at * 1 ("The court also
properly determined that the Piedmont Regional Jail is not a
'person' and is therefore not amenable to suit under
§ 1983[.]"); 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. § l9l5A(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. Qkure, 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 I 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,
1 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), 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).
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 ...