United States District Court, E.D. Virginia, Richmond Division
LESTER R. ROBINSON, Plaintiff,
SGT. WHITEHEAD, et al., Defendants.
A. GIBNEY, JR. UNITED STATES DISTRICT JUDGE.
R. Robinson, a Virginia inmate proceeding pro se and
in forma pauperis, filed this 42 U.S.C. § 1983
action. The action proceeds on Robinson's
Second Particularized Complaint ("Complaint," ECF
No. 12) against Defendants Sgt. Whitehead, Officer Tirinado,
and Lt. Ward.The matter is before the Court for
evaluation pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915A. For the reasons set forth, the action will be
DISMISSED for failure to state a claim except for the
excessive force claim against Defendants Whitehead and
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. MyIan 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,
therefore, 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 sponle 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, Robinson provides the following summary of his
At 10:48, I just finished stopping a gang from bullying a gay
guy. Discrimination and intimidation was at full effect at
that moment. I thought Sgt. Whitehead could come and assist
me with the matter that I honestly prevented.
Its Ramadan holy time for us Muslims. Mr. Whitehead commanded
me to come down the steps very rudely. I ask him to please
come up the steps that leads straight to my room that I was
three cell rooms down in front of the steps. Now rumor has it
that [he is an] abusive officer. I was not trying to test him
nor did I believe in rumors unless I see [them] firsthand.
Sgt. Whitehead ran up the steps and ordered me to get down on
the floor, reaching for his pepper-spray. Sgt.
Whitehead's body weight [is] eas[ily] 280 and I weight
about 185 as he pins his knee on my face and neck with the
other knee on my spine.
I'm positively sure this was on camera. I was already
handcuffed from behind, I push saying, sir this excessive
force is not necessary. Sgt. Whitehead decide to pick me up
out of impulse 3ft in [the] air and then power drive me down
to the ground of the hard concrete using the pressure point
of his body against mine in front of Officer [Tirinado].
Blood came out of my gums in a nice puddle to fill about half
of a cup 8oz water about 4oz violating my Eighth Amendment
right, maliciously assaulting me and failure to protect.
I went to surgery because he crushed my jaw [on the] right
side that was broken before 20 years ago which the date of
surgery was 10-16-2018. 1 received three bogus charges 154
Failure to Follow Rules, they did an illegal body search, and
did search my private possessions in front of me, my
roommate, and violated my Fourteenth Amendment rights.
I was found guilty on appeal and was held past my release
date because the Administration abused their authority by not
responding to none of my request, complaints, as well as