United States District Court, E.D. Virginia, Richmond Division
A. GIBNEY, JR. UNITED STATES DISTRICT JUDGE
Welty, Jr., 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
STANDARD FOR MOTION TO DISMISS
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)), aff'd, 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.'" 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 Ail
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, SI A 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 complaint.
See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir.
1997) (Luttig, J., concurring); Beaudett v. City of
Hampton, 715 F.2d 1274, 1278 (4th Cir. 1985).
SUMMARY OF PERTINENT ALLEGATIONS
action proceeds on Welty's Particularized Complaint
("Complaint," ECF No. 17.) Welty has named as
Defendants Pete Meletis and Glendell Hill. (Id. at 1
In full, the factual allegations in Welty's Complaint
Within the Prince William Manassas Regional Adult Detention
Center "MAIN JAIL" the defendants facilitate abuse
and violence while knowingly providing impunity to the
aggressors, inmates and staff alike. The defendants are
responsible for the provision of security. They have created
an abnormally hostile and unsafe environment through absent
and grossly negligent security.
The defendants intentionally withhold and deny access to
policy to the inmate population and public in Prince William
Manassas Regional Adult Detention Center without a court
order or subpoena. This allows and promotes the mistreatment
(Id.) Welty alleges violations of the
Ninth and Fourteenth Amendments, and the Virginia
Constitution. (Id. at 2-3.) In his Prayer for
Relief, Welty requests a monetary award of $6, 000, 000 and
other injunctive relief. (Id. at 3.)
Ninth Amendment Claims
contends that Defendants Meletis and Hill violated his rights
under the Ninth Amendment. However, Welty's claims under
the Ninth Amendment are misplaced, as "the Ninth
Amendment refers only to unenumerated rights, while claims
under § 1983 must be premised on specific constitutional
guarantees." Bussey v. Phillips, 419 F.Supp.2d
569, 586 (S.D.N. Y.2006) (citation omitted); see
Strandberg v. City of Helena,791 F.2d 744, 748 (9th
Cir. 1986) (citations omitted). ...