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Brevard v. Jimienz

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

October 29, 2019

JENNIFER JIMINEZ, et al., Defendants.



         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.) After receiving two extensions of time, Plaintiff filed a Particularized Complaint. (ECF No. 21.) The matter is now before the Court for evaluation pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A.


         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).


         Brevard alleges that Defendants Jennifer Jiminez, an Officer in the Hampton Roads Regional Jail, David Hackworth, the Superintendent of the Jail, and A. Moore, Sheriff of Portsmouth, Virginia, subjected him to cruel and unusual punishment. (Part. Compl. 1.) Brevard's Particularized Complaint is rambling and repetitive and states as follows:[1]

The Plaintiff, Mr. Tevin Brevard, was being detained at the Hampton Roads Regional Jail, in Portsmouth, Virginia, when an inmate known to hold waste in his cell flooded the tier out, causing waste water with the strong foul smell and fumes of urine, sewage, and waste to flood his tier, as well from the upper tier, running down to the lower floor.
During the clean up there were two trustees performing the cleanup. For some strange reason, Officer Jennifer Jiminez started mopping as well, and when she reached the Plaintiff, Mr. Tevin Brevard's cell door, she began to act in an erratic matter, manner pushing sewage water into the Plaintiffs cell. Mr. Brevard told her that amount was so great that his feet, "bare" feet were covered and he [was] refused material to clean out the cell. Until allowed to be seen by medical, the next week after seeing internal affairs, the fumes causing brief dizziness, nausea, vomiting, by her forcing the sewage water in Plaintiffs cell, along with thoughts of suicide afterwards, then the very next day, she slammed his hand in the metal tray slot causing harm to the mentally challenge[d] victim inmate too.[2]
Moreover, she verbal[ly] assaulted the inmate as well with provocation as the inmate choked. This being the normal treatment by some officers at Regional Jail. Then Mr. Brevard, after the internal affairs were seen[], by the Magistrate and swearing out a warrant and Officer (Ms.) Jiminez [was] charged with (misdemeanor) (assault) and P/R released to work only at an administrative capacity around the victim.
Officer Jiminez, after a guilty plea, pled guilty to the charges of assault on an inmate, and she was fined and ordered community service hours and ordered to write a letter of apology to Plaintiff.
Plaintiff now seeks $1 million dollars settlement due to exemplary and punitive damages towards the fully conceded wrongdoer whom pled guilty to willful misconduct of misdemeanor assault, due to Mr. Brevard's physical and emotional pain and additional mental anguish due to her, the Officer's actions and delay of medical attention, to the victim mentally challenged inmate, Mr. Brevard, at the H.R.R.J.
Claim (1) The Plaintiff avers that his Eighth Amendment Constitutional rights were violated to the point that triggers an act of cruel and unusual punishment by misdemeanor assault by [a] correctional officer at the Hampton Roads Regional Jail, namely Ms. Jennifer Jiminez, towards the victim.
The pro se Plaintiff states that the City of Portsmouth, Va. is where the Hampton Roads Regional Jail is and the Sheriff[3] of that City and the Jail's Superintendent, Mr. David Hackworth, and Officer Ms. Jennifer Jiminez is the liable parties to him, for the sum of $1 million dollars, under the doctrine of respondeat superior, simply because Officer Jiminez has pled guilty to the charges in the General District Court to the incident, she conceded, she can not now argue that she did not assault the inmate, and they are liable because Mr. Jiminez is employed by the Hampton Roads Regional Jail.
Wherefore the doctrine is requested to be invoked here because the doctrine acts to assure that the Plaintiff and his legal assistants will be paid in full amount of the requested $1-million dollar lawsuit.
An entire week passed before the Plaintiff received medical examination. This added to Mr. Brevard's condition, when at times fearing to even drink water and towards ...

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