United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DISMISSING WITH PREJUDICE 42
U.S.C. § 1983 ACTION)
E. HUDSON, SENIOR UNITED STATES DISTRICT JUDGE
Harrison, a Virginia inmate proceeding pro se and
in forma pauperis, filed this 42 U.S.C. § 1983
action. By Memorandum Order entered on May 21, 2019, the
Court directed Harrison to file a particularized complaint
within fourteen (14) days of the date of entry thereof.
Harrison filed his Particularized Complaint. (ECF No. 12.)
The matter is before the Court for evaluation pursuant to 28
U.S.C. §§ 1915(e)(2) and 1915A.
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 also
28 U.S.C. § 1915A. The first standard includes claims
premised upon "'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 analyzed under the familiar requirements
of 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 o/ 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.'" 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). 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 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); see also
Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985).
SUMMARY OF ALLEGATIONS
alleges that Commonwealth's Attorney Artisha Gregg and
Detective Timothy Forbes committed various errors during his
criminal prosecution. Specifically, Harrison contends that:
Claim One: Defendant Gregg engaged in a malicious prosecution
of Harrison due to the absence of evidence to support the
charges. (Part Compl. 1-4.)
Claim Two: "[A]fter a conviction was procured ... the
plaintiff came into possession of corroborating evidence (a
notarized affidavit written by the alleged victim/accuser)
that provided that the plaintiff was a victim of extrinsic
fraud and actually innocent" but (a) Defendant Gregg and
(b) Defendant Forbes ignored this evidence. (Id. at
Claim Three: On September 17, 2014, Detective Forbes falsely
arrested him and used "an impermissibly suggestive
identification procedure as the only evidence of probable
cause to obtain a warrant for [his] arrest."
(Id. at 2.)
demands punitive damages in the amount of $250, 000 from each
defendant. For the reasons stated below, Harrison's
Particularized Complaint will be dismissed for failure to
state a claim upon which relief may be granted, and as
frivolous and malicious.