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.) 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.
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 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
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.
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
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
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 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 ...