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Jenkins v. Sessoms

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

March 13, 2019

DARYL JENKINS, Plaintiff,
v.
WILL SESSOMS, et al., Defendants.

          MEMORANDUM OPINION

          Robert E. Payne Senior United States District Judge

         Daryl Jenkins, a Virginia inmate proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983 action.[1] The action proceeds on the SECOND PARTICULARIZED COMPLAINT. ("Complaint," ECF No. 21) . 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 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). The Federal Rules of Civil Procedure "require [] onlyxa short and plain statement of the claim showing that the pleader is entitled to relief,' in order toxgive 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) .

         II. ALLEGATIONS

         In his Complaint, Jenkins argues that his First, Fifth, Sixth, and Fourteenth Amendment rights were violated during his state criminal proceedings. (Compl. 3.)[2] Jenkins identifies as Defendants, the City of Virginia Beach, Va Municipality, Will Sessoms, the former Mayor of Virginia Beach, David L. Hansen, the City Manager of Virginia Beach, and Carmen Widgeon, a city employee of Virginia Beach. (Id.) Jenkins contends that:

On October 13, 2017, I was tried by a jury in Va Beach, Va. As soon as my trial began, I refused to relinquish my right to an attorney and wished to present myself inpropria persona. Right then I was removed from the courtroom and my trial continued without my presence violating my Sixth Amendment right to be present at my trial. The things that were discussed outside of my presence had a direct influence on the outcome of my trial, in the process, violating my 1st, 5th, 6th, and 14th Amendment right to due process. I went on to be convicted in an unfair trial with no lawyer. That violated my constitutional rights numerous times all done within a municipality that created customs and policies for such violations of rights to be condoned within its jurisdiction.
During the process of my trial, I had a biased judge who criticized me numerous times, would not recognize my religion, and would not recognize my status as inpropria persona sui juris nor as a living man, natural person (28 U.S.C. 1391). The judge violated my 6th Amendment rights by not holding a colloquy with me concerning my decision to proceed without an attorney, did not hold [a] competency hearing with me even though I take psych medication, used a witness who perjured herself many times on the stand, causing me deprivation of life and liberty, also mental, physical, and psychological injury. All [of] this was done under a municipality that created customs and policies that condoned such violations of my rights.

(Id. at 1-2 (paragraph numbering omitted).)[3] Jenkins argues that I. 1st, 5th, 6th, and 14th Amendment rights violator (Will Sessoms) former Mayor of Va Beach, Va, at the time of violation of my rights. The mayor created a policy and custom under which my constitutional rights were violated and his administration allowed such a policy and custom to continue.

The mayor was grossly negligent in that he did not adequately supervise or train his subordinates who violated my rights that being the Va Beach, Va municipality.
II. (David L. Hansen) is the City Manager who failed to train officers and employees under his management that resulted in the violation of my constitutional rights.

Under his management of the city, he created a custom and policy that led to the violation of my constitutional rights.

III. (Carmen Widgeon) is a city employee who was a witness for the Commonwealth who committed perjury on the witness stand violating my 1st, 5th, 6th, and 14th Amendment rights and intentionally inflicting emotional distress and ...

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