United States District Court, E.D. Virginia, Richmond Division
A. Gibney, Jr., 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 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.
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
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
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.
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 ...