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Barbee v. Mayo

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

November 10, 2019

MARCUS J. BARBEE, Plaintiff,
v.
LT.T. MAYO, et al., Defendants.

          MEMORANDUM OPINION

          M. HANNAH LAUCK UNITED STATES DISTRICT JUDGE.

         Marcus J. Barbee, a Virginia inmate proceeding pro se and in forma pauper is, filed this civil action under 42 U.S.C. § 1983.[1] The action proceeds on Barbee's Particularized Complaint ("Complaint," ECF No. 15.)[2] 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[3] 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 offense. (Id.)

         The 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.

         I. The Court's Screening Obligations

         A. Legal Standards

         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 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).

         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, 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)).

         Lastly, 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).

         B. Claim Three Must be Dismissed In

         Claim Three, Barbee contends that unnamed defendants violated his right to due process by the following actions:[4]

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 ...

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