United States District Court, E.D. Virginia, Richmond Division
MARCUS J. BARBEE, Plaintiff,
LT.T. MAYO, et al., Defendants.
HANNAH LAUCK UNITED STATES DISTRICT JUDGE.
J. Barbee, a Virginia inmate proceeding pro se and
in forma pauper is, filed this civil action under 42
U.S.C. § 1983. The action proceeds on Barbee's
Particularized Complaint ("Complaint," ECF No.
The Court has construed Barbee's Complaint to raise the
following claims for relief:
Claim One: Defendants violated Barbee's rights under the
Eighth Amendment when they used excessive force against
him. (Id. at 2-3.)
Claim Two: Defendants' use of physical force against
Barbee "constituted the tort of assault and battery
under the law of Virginia." (Id. at 3.)
Claim Three: Unnamed defendants violated Barbee's right
to due process when they took him to segregation without
telling him why and without charging him with a disciplinary
matter is now before the Court on the Motions for Summary
Judgment filed by Defendants Griffin and Hall, (ECF No. 19),
and by Defendant Adams, (ECF No. 33), and pursuant to the
Court's screening obligations under 28 U.S.C. §
1915(e)(2). In response, Barbee, filed an Affidavit attached
to his Answers to Affirmative Defenses to Defendants'
Defenses. ("Barbee Affidavit," ECF No. 41-1.) For
the reasons stated below, Claim Three will be DISMISSED
WITHOUT PREJUDICE. The Motions for Summary Judgment will be
DENIED WITHOUT PREJUDICE.
The Court's Screening Obligations
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 5 A
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,
therefore, 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)).
while the Court liberally construes pro se
complaints, Gordon v. Leeke, 574 F.2d 1147, 1151
(4th Cir. 1978), it does not act as the inmate's
advocate, sua sponte developing statutory and
constitutional claims 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).
Claim Three Must be Dismissed
Three, Barbee contends that unnamed defendants violated his
right to due process by the following actions:
On 10-10-20171 was taken to segregation without being told
why. I. M. Barbee (Plaintiff), requested the correct
paperwork to file and was denied the ...