United States District Court, E.D. Virginia, Richmond Division
SUNDARI K. PRASAD, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
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 December 11.
2017, the Court directed Prasad to file a particularized
complaint. (ECF No. 9.) Thereafter, Prasad filed a
Particularized Complaint (ECF No. 12), 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) "fails 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
"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 Or. 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. 12). Prasad captions her suit, "United
States: 'We- the People'; v. Sundari K. Prasad."
(Id. at 2.) Despite labeling herself as the
defendant, the Court construes Prasad to name the United
States as the sole Defendant.
December 11, 2017 Memorandum Order directing Prasad to file a
particularized complaint, the Court explained as follows:
Plaintiff fails to identify a Defendant, but instead names an
"Unknown Agent." Moreover, Plaintiffs current
allegations fail to provide the Defendant with fair notice of
the facts and legal basis upon which his or her liability
rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,
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 ...