United States District Court, E.D. Virginia, Richmond Division
CHARLES C. HUNTER, Plaintiff,
DIRECTOR RAUF, et al., Defendants.
A. Gibney, Jr., United States District Judge
C. Hunter, a Virginia inmate proceeding pro se and
in forma pauperis, filed this 42 U.S.C. § 1983
action. The action proceeds on Hunter's
Particularized Complaint ("Complaint," ECF No.
Hunter names as defendants: Director Rauf,  Supervisor
Malike, and Supervisor Osafo. The matter is before the Court
on the Motion to Dismiss filed by Supervisor Malike and
Supervisor Osafo. (ECF No. 42.) Hunter has responded. (ECF
Nos. 47, 52.)' For the reasons stated below, the Motion
to Dismiss (ECF No. 42) will be GRANTED IN PART and DENIED IN
STANDARD FOR MOTION TO DISMISS
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)), aff'd, 36 F.3d 1091 (4th
Cir. 1994). 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. 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, arc 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. Twomhly, 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 Ad.
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); lodice v. United Slates,
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 will not
act as the inmate's advocate and develop, sua
sponte, statutory and constitutional claims that 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, Hunter alleges that Defendants Supervisor Malike
and Supervisor Osafo "are head or supervisor
nurses," and "[t]hese two nurses report to Director
Rauf." (Compl. 1.) Hunter further alleges:
... [Defendants] are the heads of Fairfax Detention
Center['s] medical department that I know of and the only
names given [to] me. Rauf, Malike, and Osafo knew I
wasn't or didn't receive meds and they took no
actions in getting my meds. I wrote a number of medical
request forms stating my concerns for missing meds (blood
thinner) which my primary care doctor stress[ed] that I
shouldn't miss a day of meds. My medical request forms
state time and time again asking what danger was I in due
to missing meds. I never received an answer which cause[d] me
MAJOR mental stress and many sleepless nights thinking the
blood clot would break off and kill me.
Constitution violation. My 8th Amendment
under cruel and unusual punishment. A reply would have not
cause[d] mental stress and sleepless nights and days worrying
if the clot would break off.
Since being at Fairfax Detention Center, I have misse[d] a
number of days of taking meds, again with no reply from
staff. Only reply I receive was - we ran out of your meds.
Again days and nights with no sleep concerning whether or not
the clot would break off. I explain to medical I have an
extensive blood clot which I had to fight for my life for
months. Malike [and] Osafo knew just how extreme my clot is.
They knew a small piece already broke off and went to my lung
and I was already afraid for my life. Missing five days of
meds wasn't an option for me.
Constitution violation. My 8lh Amendment
under cruel and unusual punishment. Knowing my mental state
from missing meds before due to medical not giving me my
meds. Once again I go into a state of depression.
Just recently, I missed six days of meds and the staff,
Malike and Osafo, on the six[th] day wanted to switch my meds
without contacting my doctor or taking any tests (blood or
urine) to see how or if the new meds would work for me. I
explain[ed] that they should reach out to my doctor and ask
[him] could I switch medication. I explain that my primary
care doctor [gave] me Xarelto and to change it after a year
might not be the right thing to do. Especially when you
haven't taken any tests. These events cause lead [sic] me
to seek forensic staff (Mental Health) which said they
couldn't help because I wasn't hearing voices in my
Constitution violation. 8th Amendment under cruel
and unusual punishment. I was being force[d] to change meds
which made me mentally depress[ed] and once again I had many
sleepless nights praying my clot won't break off.
(Id. (paragraph numbers omitted).)
... [M]edical once again disregard[ed] my medical needs, I
take morning meds for my (DVT) blood clot in my left leg.
This is a medical fact that my meds should be taken every day
around the same time, not only have I miss[ed] meds due to
the medical staff, who the supervisor is at fault. Team
leader (supervisor) Nurse Osafo who reports to Nurse (Sgt)
Kent never informed Nurse Kent of the many issues, at least
that's what Nurse Kent claims. My times are constantly
altered by Nurse Osafo. I ask for a grievance form time after
time in order to get help, I'm only provided request
forms. I have never been provided a grievance form to address
this matter. On 7-27-18, I received my meds at 4:10 p.m.
after Deputy Roberts called main medical concerning my meds.
Deputy Roberts was inform[ed] that due to me going to Bible
study (programs) I wasn't given meds. If I want meds, I
would have to cancel my Bible study class I attend [which]
the jail provides. In short, I was ask[cd] to make a choice
between getting meds or my faith. According to my
1st Amendment this is a violation, why should I
have to choose between life and faith. Finally, I was sent to
main medical and Nurse Osafo mention[ed] the same thing to me
in the presence of Mr. Andrew who works in the office. Nurse
Osafo was verbally abusive towards me concerning me going to
programs. Regardless of my incarceration, I shouldn't
have to deal with this emotional stress concerning refusal of
meds and[/]or delay (seven hours) of meds. Please keep in
mind I was force[d] to miss meds for six days and was
pressured to change my meds after medical [had] been [giving]
me the same meds for the better part of eight months. This
was mention[ed] without contacting my primary care doctor
which I asked them to do....
Constitution violation. 8th Amendment
under cruel and unusual punishment. 1 worry every day
concerning what's the next thing medical staff will do,
when I mention medical staff, the nurses are Osafo and the
supervisor he reports to which is Nurse (Sgt) Kent and
Director Rauf. I find it difficult to sleep due to concerns
of death. I have many sleepless nights.
(ECF No. 18-3, at l.)
on the foregoing allegations, the Court construes Hunter to
raise the following claims for relief:
Claim One: Director Rauf, Supervisor Malike, and Supervisor
Osafo violated Hunter's Eighth Amendment rights when
"they took no actions in getting [Hunter's]
meds," despite knowing that he had not received ...