United States District Court, E.D. Virginia, Richmond Division
TERRENCE M. BOOTH, Petitioner,
COMMONWEALTH OF VIRGINIA, et al, Respondents.
HANNAH LAUCK UNITED STATES DISTRICT JUDGE
M. Booth, a Virginia inmate proceeding pro se and
in forma pauperis, filed a Petition for a Writ of
Mandamus. (ECF No. 1.) For the reasons that follow, the Court
will dismiss the action as frivolous 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 that 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 motions to
dismiss brought pursuant to Federal Rule of Civil Procedure
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 5 A
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 a
court must view the complaint 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,
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 or her 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).
seeks to dismiss pending criminal charges filed against him
in the state "due to constitutional
infirmities/technicalities." (Pet. Writ. Mand. 1.) Booth
names the Commonwealth of Virginia, Mark Herring, and
"CWA" (Commonwealth's Attorney) Katherine Mary
Beye as Respondents. Booth alleges:
1. That on or about May 2, 2018, (2) two Norfolk Sheriffs
Officers, acting under color of state law, executed a warrant
(use of F/A committing a felony), committing a forgery of a
Norfolk police officer's signature. CWA Office refuse[d]
to prosecute the rogue sheriffs. They admitted to their
complicity. CWA office duty is to charge sheriffs ....
2. That on or about August 17, 2018, Sheriff Joseph P. Baron
forwarded the case to the Norfolk Police Dept. for further
investigation. It was learned that the sheriffs were caught
on camera and admitted to their complicity. Det. M.R. Crank
(forgery unit) stated: "So you won't get outta the
charges, we're (state's attorney) gonna nol. pros,
the charges and upgrade them. We don't know yet."
3. That on or about September 5, 2018, Petitioner was
indicted (like Crank stated) on additional upgraded charged,
which were "trumped-up" to cover up the sheriffs
deliberate deception of the court and jurors. Such a
contrivance by the state to deceive the court involves guile,
perjury, prosecutorial misconduct, and corruption of a
truth-seeking function of the trial process, which vitiated
the entire proceeding. CWA Katherine Mary Beye was in cahoots
with M.R. Crank (NPD) to deter Petitioner from
4. That on or about September 9, 2018, Petitioner was told by
the magistrate that he would be arraigned the ensuing day.
Six months have elapsed [and] he has not been arraigned,
pursuant to the Supreme Court mandate (72 hrs). Petitioner
contends that his Sixth Amend. Right (to be informed of the
nature and cause of the accusation), Fifth [and] Fourteenth
Amendment right (procedural due process) have been
transgressed. On October 22, 2018 and Feb. 25, 2019,
Petitioner was scheduled to be tried by a jury of peers
without an arraignment. 5. That on or about October 19, 2018,
Petitioner filed a Writ of Mandamus in Norfolk Circuit Court.
They refuse[d] to respond. Petitioner seeks federal relief.
(Id at 1-2.) The only relief that Booth seeks is
"dismissal of all charges due to constitution[al]
infirmaties" (Id at 2.)