Case 7:13-cv-00400-JLK-RSB Document 18 Filed 10/31/13 Page 1 of 3 Pageid#: 79
cœ RK's OFFICE .U S. asm cotm
AT M NM LLE, VA
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
DEANDRE L'OVERTURE JACKSON, )
COM M ONW EALTH OF
VIRGINIA, et al.,
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.
, , 1
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).
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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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 Procedure
s, 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
EN TER : Thi
day of O ctober, 2013.
Se or United States District Judge