United States District Court, E.D. Virginia, Richmond Division
A. Gibney, Jr.United States District Judge
Eric Williams, a Virginia inmate proceeding pro se
and in forma pauperis, filed this "Petition of
Writ Mandamus." ("Petition, " ECF No.
The matter is before the Court for evaluation pursuant to 28
U.S.C. §§ 1915(e)(2) and 1915A.
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)). 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 KC.
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 Ail. 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 Ail.
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 PETITION AND PROCEDURAL HISTORY
Petition, Williams states:
Petitioner [was] arrested on (1) count of grand larceny in
July of 2007 and spent from 9-2-2008 to 9-29-2008 locked up
on that charge, and the original sentence from 2007 were
imposed as follows. The court imposed a sentence of (5) years
with (5) years suspended. Indeterminate supervised probation
(3) years good behavior.
[In] March of 2010 the original sentence [was] revoked, and
up that violation Judge Brown re-suspended the (5) years and
ordered that the petitioner successfully complete a minimum
of fourteen months in the youth challenge program and the
petitioner spent from 3-10-2010 to 7-01-2010 locked up
awaiting trial for that probation violation.
On March 8, 2011, the original sentence was revoked again and
up on that violation Judge Smith imposed a sentence of (5)
years and suspended (1) year which left petitioner (4) years
to serve upon successful completion of the behavioral
correctional program, in which the petitioner ended up
serving the whole (4) year sentence and [was] released from
prison on June 9, 2014, from Indian Creek Prison, with (2)
year supervised probation.
The petitioner is still contesting that he shouldn't
still be on a (5) year probation sentence from 2008 in 2017,
since when [was] time (stopped) or (halted). Petitioner
thought that all time spent in confinement supposed to be
credited pursuant to Code 53.1-187. And if it is legal to
keep petitioner on a (5) year probation from (2008), the
petitioner's probation [was] revoked in 2016 and
Chesapeake Circuit Court is trying to impose a (1) year
But how is that so when the petitioner [was] incarcerated
from 9-2-2008 to 9-29-2008 on the original sentence and
3-10-2010 to 7-01-2010, and 3-08-2011 to 6-9-2014. The
petitioner is again contesting that if it is legal to have
petitioner on a (5) year probation from (2008) without adding
any extra time on sentence that he shouldn't owe
Chesapeake Circuit Court a (1) [year] of active time because
of all the time that [was] spent in confinement on the
probation violation ...