United States District Court, E.D. Virginia, Richmond Division
A. Gibney Jr., Judge.
Lee Hinton, a Virginia inmate proceeding pro se and
in forma pauperis, filed this 42 U.S.C. § 1983
action. In his Particularized Complaint
("Complaint, " ECF No. 15), Hinton contends that
Defendants Mason, the Food Service Manager at Lawrenceville
Correctional Center ("LCC"), and Defendant Edward
Wright, the Warden at LCC, violated his Eighth and Fourteenth
Amendment rights by failing to investigate an incident where
Hinton received a bloody napkin. 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 N.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)). 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 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, " 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,
therefore, 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 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 ALLEGATIONS AND CLAIMS
initial Complaint ("Initial Complaint, " ECF No.
1), indicated on its first page that it was brought pursuant
to "42 USC § 1983 to remedy the deprivation, under
color of state law, of rights guaranteed by the First, Fifth,
Eighth and Fourteenth Amendment[s] to the United States
Constitution." (Init. Compl. 1 .) However, in the
statement of his claims, he alleged that defendants'
conduct amounted to reckless endangerment and gross
negligence, but he failed to identify how that conduct
violated the Constitution. Accordingly, by Memorandum Order
entered on January 26, 2018, the Court directed Hinton to
particularize his Initial Complaint. The Court noted that
Hinton's allegations were repetitive, conclusory, and
failed to provide each 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, 47
latest Particularized Complaint ("Complaint"),
Hinton mostly complied with the Court's directives;
however, he lacks a section containing a comprehensive
statement of the facts giving rise to his claims. Instead,
the facts are scattered throughout the Complaint and are
extremely repetitive making it difficult for the Court to
provide a concise summary. Moreover, the Complaint is long on
legal conclusions and short on facts related to the named
Defendants. Accordingly, the Court has parsed the
Complaint and makes a list of pertinent facts as
1. On "August 24, 2016, during afternoon chow, Hinton
sat down to eat, after eating, Hinton unwrap[ped] a napkin
that was around a plastic fork." (Compl. ¶ 26.)
Hinton "grab[bed] the napkin and proceed[ed] to wipe his
mouth constantly [and] he notice[d] blood on the
napkin." (Id. ¶ 27.) "Hinton wipe[d]
his mouth twice with a bloody napkin." (Id.
2. "Officer Harrison went to the back of the kitchen
[and] explained to the Kitchen Supervisor Mrs. Mason about
the incident" and Mason said "she did not have time
to talk to her" and "Mason never came out to
investigate the situation, nor seen the napkin."
(Id. ¶¶ 28-29).
3. On "September 1, 2016, Hinton prepared an Informal
Complaint... about the contaminated napkin."
(Id. ¶ 35.) Supervisor D. Burke responded that
"I spoke to Mrs. Mason and the linemen; both said they
[had] seen the napkin [and] both said it was tomato paste
from the beans." (Id. ¶ 36.)
4. Hinton filed a second Informal Complaint "to Warden
Edward Wright and he transferred that complaint to
Hinton's building Unit Manager J. Streat to look into the
incident." (Id. ¶ 39.) Streat
"call[ed] Hinton to his office to explain to him what
happened [on] August 24, 2016 in the chow hall [and] Hinton
explained the incident. (Id. ¶ 40.)
5. Streat spoke with Defendant Mason who said "she
examine[d] the napkin [and] it was tomato paste. Mason lied,
she never came out, neither her nor the linemen investigated
the napkin." (Id. ¶ 41.)
6. By finding Hinton's Informal Complaint unfounded,
Defendant Wright was "[b]asically calling Hinton a liar
. . . show[ing] the courts the gross negligence and
deliberate indifference to Hinton's health and safety and
the conduct of Warden Ed Wright of this horrible ...