United States District Court, E.D. Virginia, Richmond Division
A. Gibney Jr. United States District Judge
Henry Simpson, a Virginia inmate proceeding pro se
and in forma pauperis, filed this 42 U.S.C. §
1983 action. By Memorandum Order entered on September
11, 2018, the Court directed Plaintiff to file a
Particularized Complaint. (ECFNo. 12.) Plaintiff filed a
Particularized Complaint. (ECF No. 14.) The matter is before
the Court for evaluation pursuant to 28 U.S.C. Â§Â§ 1915(e)(2)
and 1915A. For the reasons set forth below, the action will
be DISMISSED for failure to state a claim and because it is
legally frivolous and malicious.
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 Federal Rule of Civil
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. 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.'" BellAtl 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); lodice 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, 175 F.2d 1274, 1278
(4th Cir. 1985).
was arrested on November 29, 2016, and a jury sitting in the
Circuit Court for the City of Richmond convicted him of
possession with intent to distribute heroin and possession of
a firearm in the furtherance of a drug trafficking crime on
September 29, 2017. (Part. Compl. 1, 24-26.) In a lengthy and
rambling Particularized Complaint, Simpson alleges that
Defendants Magistrate Mortrsha Bishop, Officer Michael
Poerstel, Assistant Commonwealth's Attorney Brook Pettit,
Assistant Commonwealth's Attorney Joshua Boyles, Judge
Beverly Snukals, Judge Herbert C. Gill, Judge Thomas B.
Hoover, Judge Walter Stout, Judge Clarence N. Jenkins, Chief
Justice Donald Lemons, Public Defender Abigail Paules, and
Court Appointed Attorney Melvin Todds, Jr. (collectively
"Defendants") committed various errors related to
his criminal investigation and criminal proceedings. (See
Id. at 1-53.)
contends that as a result of Defendants' allegedly
unconstitutional actions, he "was wrongfully convicted
in the Circuit Court of the City of Richmond, VA and
sentenced to 15 years of unlawful imprisonment."
(Id. at 52.) As his only relief, Simpson demands
"declaratory relief," and requests that the Court
"officially and formally declare that all of the named
Defendants of this civil action violated [his] civil rights
and that [he] was wrongfully convicted ... and [that he is]
currently being unlawfully imprisoned." (Id.)
noted above, by Memorandum Order entered on September 11,
2018, the Court directed Simpson to file a Particularized
Complaint. (ECF No. 12.) Prior to the entry of the
Court's September 11, 2018 Memorandum Order, Simpson
filed a Motion to File a Particularized Complaint and/or
Motion to Appoint Counsel. Because the Court provided Simpson
with an opportunity to file a Particularized Complaint, and
Simpson did in fact file a Particularized Complaint,
Simpson's Motion to File a Particularized Complaint (ECF
No. 11) will be DENIED AS MOOT.
also moves the Court for the appointment of counsel.
(Id.) Counsel need not be appointed in § 1983
cases unless the case presents complex issues or exceptional
circumstances. See Fowler v. Lee, 18 Fed.Appx. 164,
166 (4th Cir. 2001) (citation omitted). This action presents
no complex issues or exceptional circumstances. Additionally,
Simpson's pleadings demonstrate that he is competent to
represent himself in the action. Accordingly, Simpson's
Motion to Appoint Counsel (ECF No. 11) will be DENIED WITHOUT
filing his Particularized Complaint, Simpson filed a lengthy
and rambling "Motion to Add Defendant." (ECF No.
22.) In this motion, Simpson requests that the Court
"permit [him] to add the unknown Judge, who entered the
1-3-19 per curiam order, in the Court of Appeals of Virginia
(Record No. 0353-18-2) as a Defendant to this civil
action." (Id. at 46.)
forth below, judges are absolutely immune from suits under
§ 1983 for acts committed within their judicial
discretion. Stump v. Sparkman,435 U.S. 349, 355-56
(1978). Further, although there are two exceptions to
judicial immunity, Mireles v. Waco,502 U.S. 9,
11-12 (1991), neither exception applies to Simpson's
claims against the unknown Judge. (See generally ECF
No. 22.) Therefore, ...