United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
Jenkins, a Virginia inmate proceeding pro se and
in forma pauperis, filed this 42 U.S.C. § 1983
action. The action proceeds on the PARTICULARIZED
COMPLAINT. ("Complaint," ECF No. 16) . The matter
is before the Court for evaluation pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A.
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)). The second standard
is the familiar standard for a motion to dismiss under
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 plaintiff s 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 Atl. 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 Atl.
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 does not
act as the inmate's advocate, sua sponte
developing statutory and constitutional claims 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).
Complaint, Jenkins argues that his First, Fifth, Sixth,
Eighth, Ninth, and Fourteenth Amendment rights were violated
during his state criminal proceedings. (Compl.
Jenkins identifies Mark Herring, the Attorney General of
Virginia, as the Defendant. (Id.) Jenkins contends
My rights were violated by the Commonwealth of Virginia by
denying my 6th Amendment right to due process. I was not
properly informed of the nature and cause of the accusation
against me. I was denied my right to counsel and deprived of
my life and liberty.
A. I had cruel and unusual punishment inflicted upon me by
the court going out of [the] sentencing guidelines and over
the jury recommended sentence (8th Amendment right
B. My 14th Amendment right to due process was violated by me
being removed from the courtroom and the trial continuing
without my presence (6th Amendment right violated)....
C. Prosecuted quasi in rem instead of as a (natural person 28
U.S.C. [§] 1391) violating my 1st, 5th, 6th, 9th, and
14th Amendment rights. . . .
(Id.) Jenkins argues that "Mark Herring is
liable because he is the Virginia Attorney General."
(Id. at 2.) Jenkins asks for a "declaration
that the acts and omissions described herein violate his
rights," and monetary damages. (Id. at 3.)