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Brevard v. Hackworth

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

September 27, 2019

TEVIN JERROD BREVARD, Plaintiff,
v.
D. HACKWORTH, et al, Defendants.

          MEMORANDUM OPINION

          John A. Gibney, Jr., 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 July 26, 2019, the Court directed Plaintiff to file a Particularized Complaint. (ECF No. 18.) Plaintiff filed a Particularized Complaint. (ECF No. 23.) The matter is now before the Court for evaluation pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A. As discussed below, Brevard's claim and 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's Particularized Complaint is terse and difficult to decipher. Brevard alleges that Defendants David Hackworth, Lt. Col. Waltz, Felicia Cowen, and Jane Doe violated his Eighth Amendment rights. (Part. Compl. 1.) Brevard states as follows:[1]

The plaintiff argues that pursuant to 42 U.S.C. § 1983, that Hampton Roads Regional Staff and Mental Health Staff that work there ... move[d] me to Housing Three after I told them and wrote statement forms and wrote in the kiosk as well, that I fear for my safety in all of Housing Three at the Hampton Roads Regional Jail in February 2019 ....
The Plaintiff was move[d] out of the mental health pod out of retaliatory action at the Regional Jail to Housing Unit Three (Max pod) in the jail
STATEMENT OF FACTS
The plaintiff, Mr. Tevin J. Brevard, was being detain[ed] at the Hampton Roads Regional Jail, in Portsmouth, Virginia, when inmate Brevard gave two Hampton Roads Regional Jail statement forms to Hearing an[d] Grievance Officer James prior to writing several requests into the kiosk, [stating] that inmate Brevard fear[ed] for his safety in all of Housing Unit Three.... Prior to Psychiatrist Siduh diagnos[ing] inmate Brevard with Schizo-effective disorder, she told him that general population was deteriorating an[d] making his mental health worse, an[d] Jane Doe in classification an[d] mental health ignore[d] Psychiatrist Siduh's recommendation. They [were] retaliatory to my claim because I had [taken] out charges against Officer Jennifer Jiminez so the getting back was throwing me back in general population in Housing Unit Three an[d] taking me out of the mental health pod. Mr. Brevard went down there in February 2019 which the camera will show that an inmate told Brevard he was going to kill him if he stay[ed] in Housing Unit Three so Mr. Brevard went on suicide watch at H.R.R.J. that night. Mr. Brevard [experienced] physical and emotion[al] pain and mental anguish due to H.R.R. J. staff trying to get him killed while going through trial with Officer Jiminez and Nurse Nicole DeSouza.
Claim (1)
The plaintiff avers that... his Eighth Amendment constitutional rights were violat[ed] to the point that trigger[ed] an act of cruel and unusual punishment, by the put[ting] in statement forms and writing into the kiosk telling staff and classification Jane Doe that he fear[ed] for his safety in all of Housing Three H.R.R.J. is required by the City of Portsmouth in order to operate by law, required to carry adequate insurance (or) to have sufficient assets. The pro se Plaintiff states that Hampton ...

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