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Case 7:13-cv-00400-JLK-RSB Document 18 Filed 10/31/13 Page 1 of 3 Pageid#: 79

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IN TH E U NITED STATES DISTR IC T C O U RT
FO R TH E W ESTERN DISTR IC T O F V IR G IN IA

R O AN O K E DIV ISIO N

JUL C U

BY:

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RK

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v.

Plaintiff,

DEANDRE L'OVERTURE JACKSON, )
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COM M ONW EALTH OF
VIRGINIA, et al.,
Defendants.

Civil A ction N o. 7:13-cv-00400

M EM O M ND U M O PINIO N

By: H on. Jackson L. K iser

Senior U nited States D istrict Judge

DeAndre L'Overture Jackson, a Virginia inm ate proceeding pro K , filed a civil rights

Complaint ptlrsuant to 42 U.S.C. j 1983 withjurisdiction vested in 28 U.S.C. j 1331 and j 1343.

Plaintiff nam es as defendants the Com m onw ea1th of V irginia and Leslie Flem ing, W arden of the

Keen M ountain Correctional Center (:çKMCC''). Plaintiff complains about the KM CC mailroom

staff, KM CC officers' alleged deliberate indifference to his safety and failtlre to properly

investigate inm ates' attack on him , KM CC medical staff s alleged deliberate indifference to

serious m edical needs, the Clerk of the Henrico County Circuit Court's alleged refusal to process

a petition for a writ of actual irm ocence, and the Suprem e Court of V irginia's denial of his

petition for a writ of actual innocence.

I m ust dism iss any action or claim tsled by an inm ate if I determine that the action or

claim is frivolous or fails to state a claim on which relief m ay be granted. See 28 U.S.C.

jj 1915(e)(2), 1915A(b)(1); 42 U.S.C. j 1997e(c). The first standard includes claims based

upon Cûal'l indisputably meritless legal theory,'' içclaim s of infringem ent of a legal interest which

clearly does not exist,'' or claim s where the ûffactual contentions are clearly baseless.'' Neitzke v.

W illiams, 490 U.S. 319, 327 (1989). The second standard is the familiar standard for a motion to

dismiss tmder Federal Rule of Civil Procedure 12(b)(6), accepting the plaintiff s factual

allegations as true. A com plaint needs :ta short and plain statem ent of the claim show ing that the

Case 7:13-cv-00400-JLK-RSB Document 18 Filed 10/31/13 Page 2 of 3 Pageid#: 80

pleader is entitled to relief ' and sufficient dtltlactual allegations . . . to raise a right to relief above

the speculative level . . . .'' Bell Atl. Corp. v. Twomblv, 550 U.S. 544, 555 (2007) (internal

quotation marks omitted). A plaintiff s basis for relief çlrequires more than labels and

conclusions . . . .'' Id. Therefore, the plaintiff m ust Etallege facts sufficient to state a11 the

elements of (thej claim. Bass v. E.l. Dupont de Nemours & Co., 324 F.3d 761, 765 (4th Cir.

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2003).

To state a claim under j 1983, a plaintiff must allege tçthe violation of a right secured by

the Constitution and laws of the United States, and must show that the alleged deprivation was

committed by a person acting under color of state law.'' W est v. Atkins, 487 U.S. 42, 48 (1988).

The Commonwealth of Virginia is not an appropriate defendant to a j 1983 action. See W ill v.

Michigan Dep't of State Police, 491 U.S. 58, 70 (1989) (stating states and governmental entities

that are considered anns of the state are not persons under j 1983). Also, Plaintiff does not

allege any act or om ission by W arden Flem ing in the Com plaint and does not describe how any

other person executed W arden Flem ing's policies or custom s. Sees e.g., Fisher v. W ashincton

M etropolitan Area Transit Author., 690 F.2d 1 133, 1 142-43 (4th Cir. 1982), abrogated g.r.l other

grounds hy Cnty. of Riverside v. M cLaughlin, 500 U.S. 44 (1991). Plaintiff cannot proceed

against W arden Flem ing only on a theory of respondeat superior. M onell v. Dep't of Soc.

Servs., 436 U.S. 658, 663 n.7 (1978).

e

1 D termining whether a complaint states a plausible claim for relief is f$a context-specitk task that requires the
reviewing court to draw on its judicial experience and common sense.'' Ashcroft v. Iqbal, U.S. , 129 S. Ct.
1937, 1950 (May 18, 2009). Thus, a court screening a complaint under Rule 1209(6) can ivntify 'Vp adings that are
not entitled to an assum ption of tnlth because they consist of no m ore than labels and conclusions. Id. A lthough l
liberally construe pro .K complaints, I do not act as the inmate's advocate, sua sponte developing statutory and
constitutional claim s the inm ate failed to clearly raise on the face of the com plaint. 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).
See also Gordon v. Leeke, 574 F.2d 1 147, 1 151 (4th Cir. 1978) (recognizing that district courts are not expected to
assum e the role of advocate for the pro .K plaintift).

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Case 7:13-cv-00400-JLK-RSB Document 18 Filed 10/31/13 Page 3 of 3 Pageid#: 81

The only evidence of W arden Fleming's involvem ent consists of fotlr grievance

responses. Even if the grievances had been incorporated into the Com plaint or complied with

Rules 8 and 10 of the Federal Rules of Civil Procedures, I do not tind that they alone support a

claim upon which relief m ay be granted. The first grievance response explains that Plaintiff

received loans from KM CC to pay the postage of legal m ail. The second grievance response

explains that KM CC m ailroom staff should have reviewed Plaintiff s request for indigent

services quicker than they had. The third grievance response explains that KM CC mailroom did

not delay m ailing Plaintiff s legal documents to the Suprem e Court of Virginia and that the Clerk

of that Court informed prison staff that Plaintiff had met a filing deadline. The fourth grievance

response explains that KM CC medical staff tested Plaintiffs blood and that the test results were

norm al. Therefore, Plaintiff presently fails to adequately describe how W arden Fleming

deprived Plaintiff of a civil right. Pursuant to 28 U.S.C. j 1915A(b)(1), l dismiss the Complaint

without prejudice.

EN TER : Thi

day of O ctober, 2013.

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Se or United States District Judge

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