United States District Court, E.D. Virginia, Richmond Division
Hannah Lauck, United States District Judge.
Derrick Daniels, a Virginia inmate proceeding pro se
and in forma pauper is, filed this civil action. For
the reasons that follow, the Court will dismiss the action
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A as
frivolous and for failure to state a claim upon which relief
may be granted.
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 & 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.'" Bell All. 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 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).
Complaint (ECF No. 1) contains a terse and disjointed
statement of his claim against Leonard McCall, a defense
attorney who represented Daniels during his criminal
proceedings. (Id. at 2.) He labels his claim as
brought pursuant to "The 5th, 6th, and 14th Amendments
to the U.S. Constitution" (id. at 3) and states as
The plaintiffs attorney (Mr. McCall) failed to file a quash
motion when evidence was strongly supported by facts and laws
in my case. Defendant (Mr. McCall) was my attorney and failed
to file a motion with evidence given to him from June 1, 2018
to the courts. Showing no integrity and reckless disregard of
the truth of plaintiff s constitutional rights, also statutes
and laws in Richmond Circuit Court.
(Id. at 4.) In an attachment labeled "Claim
Attachment 1 A," Daniels continues the claim, and
The Plaintiff is now on lawyer #4. The facts of perjury by
Ms. Cheatham in preliminary statement areas follows,
"she said it was my car." This is my date of arrest
10/14/17 for expired registered vehicle tags. The car is
registered to Ms. Cheatham. I have been convicted on these
charges in Henrico Traffic Court. The 4 people in the
courtroom support the fact of perjury against Ms. Cheatham:
1. Judge 2. Police Officer 3. Court Clerk 4. Lawyer from
Henrico Traffic Court. (Have tickets.)
(Id. at 5.) In his second attachment, labeled
"Claim: (Attachment 2A)," Daniels also states:
Defendant McCall failed to file quash motion, when evidence
against witnesses was strongly supported by facts and laws in
my case. Leads me to the conclusion that, the lawyer rendered
ineffective assistance of counsel. On that complaint basis, I
initiated a civil malpractice claim.
Defendant Mr. McCall received evidence from June 1, 2018,
that proved perjury. Several documents [were] signed by Ms.
Cheatham and dated before the alleged incident. The plaintiff
wrote the court on June 6, 2018 and the BAR on this matter.
The defendant refused to submit the evidence to the courts,
but the plaintiff has several court dates where the defendant
could have put forth motions knowing the law concerning the
perjury 18.2-434. And the result, a defect in process, does
to the outcome of the plaintiff being further detained. As a