United States District Court, E.D. Virginia, Richmond Division
Hannah Lauck, United States District Judge.
Pittman, a Virginia inmate proceeding pro se and
in forma pauperis, filed this civil action pursuant
to 42 U.S.C. § 1983. By Memorandum Order entered on November
15, 2019, the Court directed Pittman to file a particularized
complaint. (ECF No. 25.) Pittman failed to file a
particularized complaint. By Memorandum Order entered on
December 4, 2019, the Court again directed Pittman to file a
particularized complaint. (ECF No. 29.) Thereafter, Pittman
filed a Motion to Amend (ECF No. 30) and subsequently, a
Particularized Complaint (ECF No. 31). The Particularized
Complaint is now before the Court for evaluation pursuant to
28 U.S.C. §§ 1915(e)(2) and 1915A. For the reasons
articulated below, the Court will allow Pittman's Eighth
Amendment claim against D.M. York to proceed.
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). 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)), aff'd, 36 F.3d 1091 (4th Cir. 1994).
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 4a
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 Ail. 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). 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)).
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 or her 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).
Pittman's Motion to Amend and Particularized
December 6, 2019, Pittman filed a Motion to Amend wherein he
asks the Court to change his demand for monetary relief to
forty million dollars. (ECF No. 30.) Pittman's Motion to
Amend (ECF No. 30) will be GRANTED and the relief requested
will be reflected as forty million dollars in monetary
Particularized Complaint, Pittman names as Defendants D.M.
York, an Officer with the Chesapeake Police Department, and
the Chesapeake Police Department. (Part. Compl., ECF No. 31,
at 1.) In his Particularized Complaint, Pittman alleges as
On 2-10-19 a.m. hours, police officers D.M. York and M.
Sivels arrested me (Clevin Pittman) for traffic violations.
My chest was hurting so I was tak[en] to Chesapeake General
Hospital... . The two officers, D.M. York and M. Sivels, they
put me in a hospital bed and I was handcuffed to both bed
rails. As I (Mr. Clevin Pittman) and Officer D.M. York w[ere]
talking, I asked him why do[es] he hate black people. Then
after that, he started choking me to the point I thought I
was going to die. Then he stopped and ran to the room door. I
believe he stopped because he heard someone coming in the
door and when he went to the door he told one or more nurses
that they [were] going to charge me with spitting on them. As
1 was going up for my bond, the video was show[n] of the
action that was going on in the room. It [did] not show that
I spit on anyone, but it clearly show[ed] D.M. York was
choking me, Clevin Pittman. And Officer Sivels he just stood
there and did nothing to help me. All this was caught on M.
Sivels['s] body camera. Its clearly police brutality and
he went against his oath of duties to serve and protect as
well as cruel and unusual punishment.
The Defendant D.M. York clearly violated my (8th)
VIII Amendment rights of the Constitution. Which was cruel
and unusual punishment that he, D.M. York, inflicted on me
The Chesapeake Police Department are truly liable for his
action, if it is legal or illegal, they are liable. Officer
D.M. York in his apprehension and arrest on me, Clevin
Pittman, he violated his code of conduct which is a
dereliction of duties to serve and protect and also he
committed a[n] act of police brutality and going against his
code of honor or oath.
Due to the fact Officer D.M. York of the Chesapeake Police
Department did not follow their policy and procedures doing
the apprehension ...