United States District Court, W.D. Virginia, Roanoke Division
Jackson L. Kiser Senior United States District Judge.
Monroe Hawks, a Virginia inmate proceeding pro se, filed a
civil rights complaint pursuant to 42 U.S.C. §
1983. Plaintiff specifically lists four
defendants: the New River Valley Regional Jail
("NRVRJ"); Superintendent Gregory Winston; Dr.
Miller; and "All NRVRJ Employees." This matter is
before me for screening, pursuant to 28 U.S.C. § 1915A.
After reviewing the complaint, I dismiss the complaint
without prejudice for failing to state a claim, deny the
motion for a TRO, and grant Plaintiff leave to amend.
complaint presents eight claims. Claim one alleges that
non-defendant NRVRJ staff injures him by adding poisonous and
pharmaceutical substances to his food. Claim two alleges that
Dr. Miller injured him by prescribing "Meloxicam, "
which contains an ingredient that is documented in
Plaintiff's fifteen-year medical history as an allergen.
Claim three complains about the availability of the
jail's administrative remedy forms. Claim four alleges
that non-defendant NRVRJ staff injured him by using excessive
force and placing him in segregation for twenty-three days.
Claim five alleges that he feels pain and is injured because
"medical... refuses to grant [him] access to a
wheelchair as required under the [Americans with Disabilities
Act]." Claim six alleges that he is injured by the poor
water quality at the NRVRJ. Claim seven complains about the
way food is served and trays are sanitized. Claim eight
alleges that he is being injured by confinement in
segregation for twenty-three hours a day because of his
dismiss any action or claim filed by an inmate if I determine
that the action or claim is frivolous or fails to state a
claim on which relief may be granted. See 28 U.S.C.
§§ 1915(e)(2), 1915A(b)(1); 42 U.S.C. §
1997e(c). The first standard includes claims based upon
"an indisputably meritless legal theory, "
"claims of infringement of a legal interest which
clearly does not exist, " or claims where the
"factual contentions are clearly baseless."
Neitzke v. Williams, 490 U.S. 319, 327 (1989). The
second standard is the familiar standard for a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6),
accepting the plaintiffs factual allegations as true. A
complaint needs "a short and plain statement of the
claim showing that the pleader is entitled to relief and
sufficient "[f]actual allegations ... to raise a right
to relief above the speculative level" Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks omitted). A plaintiffs basis for relief
"requires more than labels and conclusions ...."
Id. Therefore, the plaintiff must "allege facts
sufficient to state all the elements of [the]
claim." Bass v. E.I. Dupont de Nemours &
Co., 324 F.3d 761, 765 (4th Cir. 2003).
state a claim under § 1983, a plaintiff must allege
"the violation of a right secured by the Constitution
and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of
state law." West v. Atkins, 487 U.S. 42, 48
(1988). Neither the NRVRJ nor "All NRVRJ Employees"
is an appropriate defendant to a § 1983 action. See,
e.g., Will v. Michigan Dep't of State
Police, 491 U.S. 58, 70 (1989); McCoy v. Chesapeake
Corr. Ctr.. 788 F.Supp. 890, 893-94 (E.D. Va. Apr. 13,
1992) (reasoning jails are not appropriate defendants to a
§ 1983 action); Ferguson v. Morgan. No.
I:90cv06318, 1991 U.S. Dist. LEXIS 8295, at *3-4, 1991 WL
115759, at *1 (S.D.N.Y. June 20, 1991) (concluding that a
group of personnel, like "all employees, " is not a
"person" for purposes of § 1983). Also,
Plaintiff does not allege any act, omission, policy, or
custom personally attributable to Superintendent Winston, and
liability under § 1983 may not be predicated on the
theory of respondeat superior. See, e.g.,
Monell v. Dep't of Soc. Servs., 436 U.S. 658,
663 n.7, 691-94 (1978).
alleges that Dr. Miller negligently prescribed
"Meloxicam, " which caused an allergic reaction.
Plaintiff also alleges that his sensitivity to an ingredient
in "Meloxicam" is documented in fifteen years worth
of medical records in Dr. Miller's possession. This claim
of negligence is insufficient to state a claim under §
1983. Furthermore, the alleged fact that Dr. Miller could
have discovered the relevant document about an allergen is
not alone sufficient to present a plausible Eighth Amendment
claim of deliberate indifference. See, e.g.,
Danser v. Stansberry, 772 F.3d 340, 348 (4th Cir.
2014) (recognizing the availability of a relevant document
that would have prevented the injury was not material to
whether an actor actually appreciated the risk of harm).
I dismiss the complaint without prejudice for failing to
state a claim against the current defendants and upon which
relief may be granted. Relatedly, the motion for a TRO is
denied because Plaintiff fails to satisfy the notice
requirement for a TRO and the element that he is likely to
succeed on the merits of the dismissed complaint. See,
e.g., Winter v. Natural Res. Def. Council.
Inc., 555 U.S. 7, 20 (2008).
extent Plaintiff may be able to state claims against a
"person" subject to § 1983, Plaintiff is
granted ten days to file a motion to amend the complaint that
states a claim upon which relief may be granted against a
person acting under color of state law. See, e.g.,
Gordon, 574 F.2d at 1152. Plaintiff may find it
preferable to take longer than ten days to consult legal
resources, think about his allegations, and file a new
complaint in a new and separate action. If Plaintiff chooses
not to file the motion within ten days, the case will be
closed without prejudice, and Plaintiff would not be
prejudiced because he is allowed to file a complaint in a new
and separate action at the time of his choice subject to the
applicable limitations period. See, e.g., Owens v.
Okure, 488 U.S. 235, 249-50 (1989); Va. Code §
8.01-243(A); see also Ryan v. Gonzales, 133 S.Ct.
696, 708 (2013) (noting district court's discretion to
manage its own dockets).
Plaintiff instead rushes and chooses to seek an amendment in
this case, he should know that a court may dismiss an amended
complaint with prejudice as frivolous or for failing
to state a claim upon which relief may be granted and assess
a "strike." Plaintiff should understand that he is
allowed only three "strikes" from both complaints
in district courts and appeals in courts of appeals before he
is no longer allowed to proceed in forma pauperis
without prepaying the $400. filing fee absent certain
conditions. Congress created this "three-strikes"
rule as an economic incentive for prisoners to "stop and
think" before filing a complaint. See, e.g., Rogers
v. Bluhm, No. 1:07cv1177, 2007 U.S. Dist. LEXIS 91646,
at *2, 2007 WL 440187, at *1 (W.D. Mich. Dec. 13, 2007).
 With the complaint, Plaintiff filed a
"petition for immediate injunctive relief, " which
I construe as a motion for a temporary restraining order
 Plaintiff also notes that although he
is interested in pursuing in the future an additional claim
about the denial of food and a specific diet, he is not
prepared to pursue that claim now.
 Determining whether a complaint states
a plausible claim for relief is "a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense." Ashcroft v.
Iqbal,556 U.S. 662, 678-79 (2009). Thus, a court
screening a complaint under Rule 12(b)(6) can identify
pleadings that are not entitled to an assumption of truth
because they consist of no more than labels and conclusions.
Id. Although I liberally construe pro se
complaints, Haines v. Kerner,404 U.S. 519, 520-21
(1972), I do not act as an inmate's advocate, sua
sponte developing statutory and constitutional
claims not clearly raised in a 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 ...