United States District Court, E.D. Virginia, Richmond Division
ANTHONY M. GREEN, SR., Plaintiff,
TIMOTHY DOSS, et al, Defendants.
MEMORANDUM OPINION (GRANTING IN PART AND DENYING IN
PART MOTION TO DISMISS)
E. HUDSON SENIOR UNITED STATES DISTRICT JUDGE.
M. Green, Sr., a Virginia inmate proceeding pro se,
filed this 42 U.S.C. § 1983 action. The action proceeds
on Green's Particularized Complaint
("Complaint," ECF No. 18). Green claims that his
constitutional rights were violated because he was not
permitted to marry during his incarceration at the Middle
Peninsula Regional Security Center ("MPRSC").
(See Id. at 1-2.) Green names Superintendent Timothy
Doss ("Superintendent Doss") and Major T. A.
Proctor ("Major Proctor") as Defendants
(collectively "Defendants"). (Id. at 1.)
Defendants filed a Motion to Dismiss pursuant to Rules
12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure. (ECF No. 27.) Green filed a Response. (ECF No.
29.) For the reasons stated below, the Motion to Dismiss (ECF
No. 27) will be granted in part and denied in part.
PRELIMINARY REVIEW AND STANDARD FOR MOTION TO
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).
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 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).
motion made pursuant to Federal Rule of Civil Procedure
12(b)(1) challenges the court's jurisdiction over the
subject matter of a complaint. Such challenges can be facial,
asserting that the facts as pled fail to establish
jurisdiction, or factual, disputing the pleadings themselves
and arguing that other facts demonstrate that no jurisdiction
exists. Lufti v. United States, 527 Fed.Appx. 236,
241 (4th Cir. 2013) (citing Kerns v. United States,
585 F.3d 187, 192-93 (4th Cir. 2009)). If a defendant raises
a factual challenge, "the district court may then go
beyond the allegations of the complaint and resolve the
jurisdictional facts in dispute by considering evidence
outside the pleadings, such as affidavits." United
States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 348 (4th
Cir. 2009) (citations omitted). Consideration of evidence
outside of the pleadings on a Rule 12(b)(1) motion does not
necessarily convert the motion to one for summary judgment.
Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th
Cir. 1999) (citation omitted); McBurney v.
Cuccinelli, 616 F.3d 393, 409 (4th Cir. 2010) (Agee, J.,
concurring in part and dissenting in part) (discussing that
motions under Rule 12(b)(1) are not restricted by Rule
12(d)). Regardless of whether the challenge is facial or
factual, the plaintiff bears the burden of proof to preserve
jurisdiction. Jadhav, 555 F.3d at 348; Richmond,
Fredericksburg & Potomac R.R. Co. v. United States,
945 F.2d 765, 768 (4th Cir. 1991).
SUMMARY OF ALLEGATIONS
Green submitted his original complaint, he was incarcerated
at MPRSC. (ECF No. 1, at 3.) Shortly after submitting his
original complaint, Green submitted a Notice of Change of
Address to the Court, indicating that he had been transferred
to Haynesville Correctional Center. (ECF No. 6.)
contends that "Mr. Doss continuously denied my request
to get married, which is a violation of my fundamental and
constitutionally protected rights." (Compl.
In March 2017, I place[d] a request in to be married at
Middle Peninsula Regional Security Center. My request was
denied by the Superintendent Timothy Doss, reason being, Mr.
Doss doesn't allow marriages to be conducted at his
In April 2017, 1 met with Mr. Doss about me getting married
in the facility and he stated he doesn't allow marriages
and there is no law that compels him to approve marriages.
In May 2017, I filed a grievance and on June 15, 2017, Major
Proctor responded stating that Mr. Doss stated that he would
allow marriages but Mr. Doss continued to deny me the right
to marry, reason being, that he was waiting for his attorney
to change [the] policy.
In August 2017, I spoke with Mr. Doss, for the last time, and
he stated he had more important things to do and he will not
allow me to get married at his ...