United States District Court, E.D. Virginia, Richmond Division
SUNDARI K. PRASAD, Plaintiff,
WASHINGTON METRO POLICE DEPT, et al., Defendants.
Hannah Lauck, United States District Judge
K. Prasad, a Virginia inmate proceeding pro se and
in forma pauperis, filed this civil action pursuant
to Bivens.By Memorandum Order entered on October 30,
2017, the Court directed Prasad to file a particularized
complaint. (ECF No. 12.) Thereafter, Prasad filed a
Particularized Complaint (ECF No. 15), which 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) 'Tails to state a claim on which relief may be
granted." 28 U.S.C. § 1915(e)(2). The first
standard includes claims based upon "an indisputably
meritless legal theory, " or claims where the
'Tactual 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)),
affd, 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 5 A
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 All. 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 or her
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).
Prasad's Particularized Complaint
action proceeds on Prasad's Particularized Complaint (ECF
No. 15). Although her original complaint named many
defendants, Prasad's Particularized Complaint names the
Washington DC Police Dept as the sole defendant.
(Id. at 1 .) In order to state a viable claim under
Bivens, a plaintiff must allege that a person acting
under color of federal authority deprived him or her of a
constitutional right or of a right conferred by a law of the
United States. See Williams v. Burgess, No.
3:09cv115, 2010 WL 1957105, at *2 (E.D. Va. May 13, 2010)
(citing Goldstein v. Moatz, 364 F.3d 205, 210 n.8
(4th Cir. 2004)), aff'd per curiam, No. 10-6798,
2011 WL 3664279, at *1 (4th Cir. Aug. 22, 2011). While Prasad
brought this action pursuant to Bivens, the
Defendant Washington DC Police Dept, is a state, not a
federal actor, thus the Court construes Prasad to bring this
action pursuant to 42 U.S.C. § 1983. Cf. Pollard
v. District of Columbia, 191 F.Supp.3d 58, 67 (D.D.C.
June 9, 2016) (citations omitted) (explaining that Washington
D.C. police officers "count as state actors for purposes
of Section 1983"), qff'd 698 Fed.Appx. 616
(D.C. Cir. 2017).
October 30, 2017 Memorandum Order directing Prasad to file a
particularized complaint, the Court explained as follows:
Plaintiffs current Complaint is a rambling narrative that
fails to delineate discernable claims against each defendant.
Plaintiffs current allegations fail to provide the particular
constitutional right that was violated by each
defendant's conduct and also fail to provide each
defendant with fair notice of the facts and legal basis upon
which his or her liability rests. See Bell All. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)).
Accordingly, Plaintiff is DIRECTED, within fourteen (14) days
of the date of entry hereof, to particularize her complaint
in conformance with the following directions and in the order
set forth below:
a. At the very top of the particularized pleading, Plaintiff
is directed to place the following caption in all capital
letters "PARTICULARIZED COMPLAINT FOR CIVIL ACTION
b. The first paragraph of the particularized pleading must
contain a list of defendants. Thereafter, in the body of the
particularized complaint, Plaintiff must set forth legibly,
in separately numbered paragraphs, a short statement of the
facts giving rise to her claims for relief. Thereafter, in
separately captioned sections, Plaintiff must clearly
identify each civil right violated. Under each section, the
Plaintiff must list each defendant purportedly liable under
that legal theory and explain why she believes each defendant
is liable to her. Such explanation should reference the
specific numbered factual paragraphs in the body of the
particularized complaint that support that assertion.
Plaintiff shall also include a prayer for relief.
c. The particularized pleading will supplant the prior
complaints. The particularized pleading must stand or fall of
its own accord. Plaintiff may not reference ...