United States District Court, E.D. Virginia, Richmond Division
A. GIBNEY UNITED STATES DISTRICT JUDGE
Bellamy, a Virginia inmate proceeding pro se and
in forma pauperis, filed this 42 U.S.C. § 1983
action. Bellamy names as defendants: Keith Davis,
the Warden of Sussex II State Prison (Sussex II); Officer
Smith, a correctional officer at Sussex II; and Officer
Evans, a correctional officer at Sussex II. The matter is
before the Court on Defendant Davis's Motion to Dismiss.
For the reasons stated below, the Motion to Dismiss (ECF No.
14) will be GRANTED.
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 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.'" Bell Ail. 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 Art.
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, 775 F.2d 1274, 1278 (4th Cir. 1985).
SUMMARY OF PERTINENT ALLEGATIONS
February 21, 2015, Bellamy was incarcerated to Sussex II.
(ECF No. 1, at 4.)Bellamy was assaulted by four other
inmates. (Id.) Defendants Evans and Smith responded
to the disturbance with their K-9 dogs. (Id.)
Although Bellamy "was no longer engaged in any acts of
disturbance," Defendants Evans and Smith instructed
their dogs to attack him. (Id.) Defendants Evans and
Smith allowed their dogs to continue to attack Bellamy even
after Bellamy had surrendered. (Id.) Defendant Smith
then punched Bellamy in the left eye. (Id. at 4-5.)
Bellamy demands monetary damages. (Id. at 6.)
Complaint contains no factual allegation with respect to
Defendant Davis. "Where a complaint alleges no specific
act or conduct on the part of the defendant and the complaint
is silent as to the defendant except for his name appearing
in the caption, the complaint is properly dismissed, even
under the liberal construction to be given pro se
complaints." Potter v. Clark, 497 F.2d 1206,
1207 (7th Cir. 1974) (citing U.S. ex rel Brzozowski v.
Randall, 281 F.Supp. 306, 312 (E.D. Pa. 1968)). Thus,
Bellamy has failed to state a claim for relief against Davis.
Reply, Bellamy contends that Defendant Davis is liable for
the actions of his subordinates because "the warden of
any prison is very much responsible for everyone who works
under him, and what they do." (ECF No. 21, at 5.)
Bellamy cannot hold Defendant Davis liable on these grounds.
"Because vicarious liability is inapplicable to ...
§ 1983 suits, a plaintiff must [allege] that each
Government-official defendant, through the official's own
individual actions, has violated the Constitution."
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009);
Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977)
(noting that the doctrine of respondeat superior is
inapplicable to § 1983 actions). Accordingly, the
plaintiff must allege facts that affirmatively show
"that the official charged acted personally in
the deprivation of the plaintiff[']s rights."
Vinnedge, 550 F.2d at 928. Because Bellamy has not
done so, the Motion to Dismiss (ECF No. 14) will be GRANTED.
CONCLUSION AND OUTSTANDING MOTIONS
Motion to Dismiss (ECF No. 14) will be GRANTED. All claims
against Defendant Davis will be DISMISSED.
has filed a Motion for an Evidentiary Hearing (ECF No. 18)
wherein he requests access to a surveillance tape of the
incident. Defendants responded by moving for the entry of an
order staying discovery. Defendants assert the discovery is
premature and should wait until the Court has resolved any
preliminary dispositive motion. As the Court has resolved the