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Brevard v. Desouza

United States District Court, E.D. Virginia, Richmond Division

September 27, 2019

TEVIN JERROD BREVARD, Plaintiff,
v.
NICOLE DESOUZA, et al., Defendants.

          MEMORANDUM OPINION

          John A. Gibney, Jr., United States District Judge.

         Tevin Jerrod Brevard, a Virginia inmate proceeding pro se and in forma pauperis filed this 42 U.S.C. § 1983 action. By Memorandum Order entered on April 26, 2019, the Court directed Plaintiff to file a Particularized Complaint. (ECF No. 18.) Plaintiff filed a Particularized Complaint. (ECF No. 22.) The matter is now before the Court for evaluation pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A. As discussed below, the action will be dismissed without prejudice for failure to state a claim.

         I. PRELIMINARY REVIEW

         Pursuant 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).

         "A 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).

         The 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, 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 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).

         II. BREVARD'S ALLEGATIONS AND CLAIM

         Brevard alleges that Defendants Nicole DeSouza, a nurse at the Hampton Roads Regional Jail, David Hackworth, the Superintendent of the Jail, and M.A. Moore, Sheriff of Portsmouth, Virginia, subjected him to cruel and unusual punishment under the Fourteenth Amendment.[1] (Part. Compl. 1.) Brevard's Particularized Complaint is rambling and repetitive and states as follows:[2]

The Plaintiff, Mr. Tevin Brevard, while being detained at Hampton Roads Regional Jail in the City of Portsmouth, Va., avers he was a target, being a mental health inmate[.] . . . While being escorted by two officers going back to his cell from the shower, Nurse DeSouza, assaulted him, busting him repeatedly in the mouth with a cup with meds in it to the point the officers had to holler at her to stop, she ran off.
Then she ran off? After this, Master Jail Officer Kasper and Head Nurse Easter came and checked on the mental health challenged inmate, and Sgt. Eperson, came and checked on Mr. Brevard, and reported it to Internal Affairs, for an in-house investigation, [which] found abusive behavior by the nurse and the magistrate called the Plaintiff and found probable cause to swear out a warrant for assault and battery on this employee, the Nurse DeSouza.
Claim (A): The Plaintiff, Mr. Tevin Brevard pro se with assistance, avers that his Eighth Amendment constitutional rights were violated, constituting cruel and unusual punishment by Hampton Roads Regional Jail nurse, Nicole DeSouza, employee.
Mr. Tevin Brevard ... was sent to Eastern State Hospital to be reviewed by mental health doctors there, but when he return[ed], the Jail ship[ped] him out, transferring him so that [when] the Court date came, the Commonwealth's Attorney's office dismissed the charges of assault and battery against Nurse DeSouza, stating that they did not know what happened to the victim.
The victim argues that him being moved was a cover up, quid pro quo, by the Commonwealth's Attorney's office and the Hampton Roads Regional Jail, in order to hide this from the public media and this is an obstruction of justice by collusion by the two government agencies, a crime.
There is no subordination, there should be rule of law, been a request for a continuance until a writ ad prosequendum could have been issued for Mr. Brevard to appear, or the issuing of a subpoena for the victim. To dismiss ...

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