United States District Court, E.D. Virginia, Richmond Division
SUNDARI K. PRASAD, Plaintiff,
FOXMORE PROCESS SERVERS, et al., Defendant.
HANNAH LAUCKUNITED STALLED DISTRICT JUDGE
K. Prasad, a Virginia inmate proceeding pro se and
in forma pauperis, filed this 42 U.S.C. § 1983
action. The matter is before the Court for
evaluation pursuant to 28 U.S.C. §§ 1915(e)(2) and
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 Cir. 1994).
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.'" BellAtl. 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 BellAtl
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).
action proceeds on Prasad's Particularized Complaint
("Complaint, " ECF No. 11.) In her Complaint,
Prasad essentially alleges that Foxmore Process Servers and
its owners, Michael Foxmore and Jessica Mazza, failed to
serve "warrants" that she faxed to them, resulting
in her being jailed. (Compl. 1.) Specifically, Prasad states:
I worked as a paralegal for a law firm that utilized Foxmore
Process Servers and they were well known and very
dependable-so when I filed all of my paperwork for my custody
case I used them as well. I had no problem with my earlier
paperwork-dealing directly with [Jessica and Michael
Foxmore- The Court corrects the capitalization and
punctuation in quotations from Prasad's Complaint. The
Court also omits the emphasis from Prasad's submissions,
as well as any internal numbering in the recitation of
Prasad's claims. the owners-who billed me directly and I
paid the bill. I filed another case . . . [and] had warrants.
[The warrants] were faxed and confirmed (faxed several times)
that never got served and Jessica gave me the run-around for
[two] years on the issue. I was subsequently jailed because
the warrants were not served, and suffered damages and
Michael and [Jessica] still did nothing and claimed they
couldn't retrieve or find the warrants but the Court says
they have them.
(Compl. 1.) From what the Court can discern, Prasad's
claims for relief are:
Claim One: "Jessica and Michael did not follow
appropriate legal procedures [and] laws of process servers.
They did not confirm my order that was placed in a timely
manner [and] I had to wait weeks in order to check up on
order[s]-hindering my due process-as a paralegal, I often
ha[d] other things to do." (Id.)
Claim Two: "[The] 5th Amendment [was] violated by Jessica
and Foxmore (Michael)-I was jailed [because] of the
non-delivery of these warrants [and] the actions of these
people against me (criminally) causing undue stress-and I
have a disability (disabilities), PTSD, etc...."
(Id. at 2.)
Claim Three: "[The] 13th Amendment was violated and]
bias of working with Prasad before, Foxmore did not do their
duty. . . . They did not do their duty to [the] best of
[their] ability and felt they could slack on [the] job. When
Prasad was incarcerated they used this position against her
as being jailed to deny her further rights and
Claim Four: "Jessica [and] Michael Foxmore, due to their
actions, denied Prasad due process legally. Because none of
[the] documents were delivered at all due process was not
Claim Five: "Jessica [and] Michael Foxmore, due to their
actions, denied Prasad due diligence. Because none of [the]
documents/warrants were delivered at all due diligence was
hindered." (Id. at 3)
Claim Six: "Jessica [and] Michael Foxmore, due to their
actions, denied Prasad 14th Amendment equal protection of law
and fairness.  Because none of [the] documents/warrants
were delivered at all Prasad could not ...