United States District Court, E.D. Virginia, Richmond Division
A. Gibney, Jr., United States District Judge.
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.
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).
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.'" 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).
BREVARD'S ALLEGATIONS AND CLAIM
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. (Part. Compl. 1.)
Brevard's Particularized Complaint is rambling and
repetitive and states as follows:
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
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 ...