United States District Court, E.D. Virginia, Richmond Division
E. Payne, Senior United States District Judge.
Sheldon, a federal inmate proceeding pro se and in
forma pauperis, filed this civil action. The action
proceeds on the FIRST AMENDED COMPLAINT
(''Particularized Complaint," ECF No. 22) that
was filed in response to the Court's directive to file a
particularized complaint. The matter is before the Court for
evaluation pursuant to 28 U.S.C. §§ 1915(e)(2) 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 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).
Memorandum Order entered on March 4, 2019, the Court directed
Sheldon to file a particularized complaint. The Court noted
Courts must liberally construe pro se civil rights
complaints in order to address constitutional deprivations.
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.
1978). Nevertheless, "[p]rinciples requiring generous
construction of pro se complaints are not . . .
without limits." Beaudett v. City of Hampton,
775 F.2d 1274, 1278 (4th Cir. 1985) . "[T]he Court
cannot initiate criminal or regulatory investigations of any
defendant. Rather, authority to initiate criminal complaints
rests exclusively with state and federal prosecutors."
Barron v. Katz, No. 6:17-CV-195-KKC, 2017 WL
3431397, at *1 (E.D. Ky. Aug. 9, 2017) (citing Sahagian
v. Dickey, 646 F.Supp. 1502, 1506 (W.D. Wis. 1986)).
Furthermore, Plaintiff as "a private citizen lacks a
judicially cognizable interest in the [criminal] prosecution
or nonprosecution of another." Linda R.S. v. Richard
P., 410 U.S. 614, 619 (1973); see Lopez v.
Robinson, 914 F.2d 486, 494 (4th Cir. 1990) ("No
citizen has an enforceable right to institute a criminal
prosecution."). Thus, Plaintiff's current
allegations fails to provide the defendant with fair notice
of the facts and legal basis upon which his or her liability
rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,
47 (1957)). Plaintiff provides no federal or constitutional
law that authorizes the action he seeks.
(ECF No. 16, at 1-2.) Accordingly, the Court directed to
Sheldon to follow a particularized complaint that complied
with the following directives:
a. At the very top of the particularized pleading, Plaintiff
is directed to place the following caption in all capital
letters "PARTICULARIZED COMPLAINT FOR CIVIL ACTION
b. The first paragraph of the particularized pleading must
identify the statute, rule or case that authorizes this
action. The second paragraph must contain a list of
defendants. Thereafter, in the body of the particularized
complaint, Plaintiff must set forth legibly, in separately
numbered paragraphs, a short statement of the facts giving
rise to his claims for relief. Thereafter, in separately
captioned sections, Plaintiff must clearly identify each
civil right violated. Under each section, the Plaintiff must
list each defendant purportedly liable under that legal
theory and explain why he believes each defendant is liable
to him. Such explanation should reference the specific
numbered factual paragraphs in the body of the particularized
complaint that support that assertion. Plaintiff shall also
include a prayer for relief.
c. The particularized pleading will supplant the prior
complaints. The particularized pleading must stand or fall of
its own accord. Plaintiff may not reference statements in the
FAILURE TO COMPLY WITH THE FOREGOING DIRECTIONS
WILL RESULT IN DISMISSAL OF THE ACTION. See