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Epps v. Laybourne

United States District Court, E.D. Virginia, Richmond Division

February 5, 2019

HUGH ROYAL EPPS, Plaintiff,
v.
DR. KATHERINE LAYBOURNE, MD, et al., Defendants.

          MEMORANDUM OPINION (DISMISSING BIVENS ACTION)

          HENRY E. HUDSON SENIOR UNITED STATES DISTRICT JUDGE.

         Hugh Royal Epps, a federal inmate proceeding pro se and in forma pauperis, filed this Bivens[1]action. The matter is before the Court for evaluation pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A.

         I. PRELIMINARY REVIEW

         Pursuant 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 Fed.R.Civ.P. 12(b)(6).

         "A 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 o/ 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).

         The 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.L 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 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).

         II. SUMMARY OF PLAINTIFF'S ALLEGATIONS

         In his Particularized Complaint (ECF No. 22-2), Epps names as Defendants Dr. Katherine Laybourne, Dr. Mark Diccocco, and "Unknown Medical Staff and alleges the following:[2]

6. In February 2009, Plaintiff informed the FCC Petersburg medical staff of his serious lower back problems stemming from a work-related injury prior to his incarceration.
7. When Plaintiff made the prison medical staff aware of his ongoing medical condition, he also informed them that two medications Flexil and Naproxen - were currently offering him the relief he needed.
8. On September 16, 2010, Plaintiffs back gave out, and he collapsed. He was in significant pain and could not stand on his own, so he was taken to medical. At medical, he was given an injection in his left arm to reduce his pain and [they] told him they were scheduling him for an MRI scan to determine the best treatment plan for his back condition.
9. Following this occurrence, Plaintiff began losing feeling in his left leg.
10. An MRI scan was given, and the Plaintiff was seen by contractor Dr. Prakash, who gave Plaintiff a steroid injection to temporarily treat his pain and evaluated the MRI. He then told Plaintiff that it was his opinion that he needed immediate surgery to help his lower back issues.
11. Plaintiff was later told by prison medical staff that he had been scheduled for surgery as ...

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