United States District Court, E.D. Virginia, Richmond Division
SUNDARIK. PRASAD, Plaintiff,
CITY OF RICHMOND, et al., Defendants.
Hannah Lauck, United States 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); 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)), ajfd, 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 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.'" 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. 12). In her Complaint,
The City of Richmond violated my civil rights, namely,
Anthony Mijares and the RVA Adult Expo in various different
I was hired by Anthony Mijares for the RVA Adult Expo to
write a press release and hire talent, and be a public
relations representative (for television appearances,
magazine write-ups, etc. all years) for the event. I gave
Mijares an initial quote that he agreed upon and a
contract-he never paid as agreed, [but] took advantage of my
name and logo and advantage of my sponsor company (Hustler
Magazine). [He] libeled [and] slandered me,  and continued
to use my likeness, name, image, PR write-up, appearance on
television, and sponsor company as well as a parody of me
"The Perfect Sun" to advertise his event, violating
[my] trademark and never paid royalties, or hotel fees, or
anything promised for [the] event.
what the Court can legibly discern, Prasad's claims for
Claim One: "[The] City of Richmond allowed Anthony
Mijares to violate 2257 laws. Anthony Mijares violated
Prasad's rights as a performer and did not pay her,
violating all 2257 laws." (Id.)
Claim Two: "Mijares violate[d] Article I Bill of Rights
Constitution of VA (1971) any citizen may freely speak,
write, and publish his [sentiments] on all subjects-being
responsible for abuse of that right. Defamational words were
said . . . that harmed Prasad [and] led to loss of revenue
[and] emotional damages." (Id. at 2.)
Claim Three: "Mijares [and the] RVA Adult Expo did not
keep the rule of 'peaceably' assembling. One could
argue whether sexual events are peaceable where videos are
sold that contain sexual violence-and fetish [and] BDSM adult
performers were in attendance that were 'violent' and
abusive that harmed Prasad emotionally [and] her PTSD-she is
due a redress of her grievances." (Id.)
Claim Four: "Mijares has to be held responsible for the
abuse of the right of not peaceably assembling [and]
defamation of [Prasad's] character to the extent of
having a performer parody her as 'Perfect Sun.'
Violation of trademark.... Performer was Caucasian-racism
Claim Five: "Mijares displayed racism as he did not pay
Prasad (i.e. Sun Karma) due to defamation of character...
[and] racism of 10th ...