Turner v. Cuccinelli et al, No. 3:2011cv00181 - Document 49 (E.D. Va. 2012)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 12/12/12. Copy sent: Yes(tdai, )
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division EARL S. TURNER, Plaintiff, v. Civil Action No. KEN CUCCINELLI, 3:11CV181 et al. , Defendants. MEMORANDUM OPINION Earl in S. Turner, forma pauperis, matter is No. 15) . a Virginia prisoner proceeding pro filed this proceeding In his on Turner's Amended Complaint, individuals as defendants: Hull, Carolyn Neal, is before the No. 32) the reasons 42 U.S.C. § 1983 complaint. Amended Complaint Turner names the The (Docket following on Clarke's Motion to The matter Dismiss (Docket and several nondispositive motions filed by Turner. set and Ken Cuccinelli,1 Harold Clarke, Ted and Lynn Sudduth as defendants. Court se forth below, Clarke's Motion to For Dismiss will be granted and Turner's motions will be denied. I. A. "A CLARKE'S MOTION TO DISMISS Standard For A motion sufficiency of to a Motion To Dismiss dismiss complaint; under Rule importantly, 12(b)(6) it does 1 By Memorandum Order entered on April 2, dismissed Cuccinelli as a defendant because mention him in the body of the Amended Complaint. tests not 2012, Turner the resolve the Court did not contests surrounding the facts, applicability of defenses." the merits of a claim, or the Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A 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 plaintiff's well-pleaded allegations are taken as true and the complaint is plaintiff. Cir. in see only also to Martin, factual motion considering a identifying pleadings conclusions, are not Ashcroft v. Iqbal, The the light most favorable to the Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th 1993); applies viewed Federal 980 allegations, to dismiss that, 556 U.S. to 952. they the to are "a begin no assumption Procedure court more of by than truth." 679 (2009). Civil principle and choose 662, of This however, can because entitled Rules F.2d at "require[ ] only *a short and plain statement of the claim showing that the pleader is entitled to relief,' notice of what the rests.'" U.S. 41, 47 with complaints "formulaic order to ^give the defendant fair . . . claim is and the grounds upon which it Bell Atl. (second alteration in Corp. in (1957)). v. original) of only the 550 U.S. 544, (quoting Conley v. Plaintiffs containing recitation Twombly, cannot "labels elements 2 satisfy and of a 555 Gibson, this of 355 standard conclusions" cause (2007) or a action." Id. (citations omitted). sufficient level," "to id. "plausible raise a its "conceivable," id. plaintiff pleads reasonable 550 a plaintiff must allege facts to relief omitted), face," id. at 570, U.S. at that Iqbal, the a claim rather that than is merely the allows the court defendant is 556 U.S. at 678 Therefore, 556). speculative facial plausibility when the factual content that inference above stating "A claim has misconduct alleged." Corp., right (citation on the Instead, in to draw liable order for the (citing Bell Atl. for a claim or complaint to survive dismissal for failure to state a claim, the plaintiff the must "allege elements of [his or] & .Co., F.3d 324 Microsoft 309 765 F.3d complaints, 1978), it while Gordon does not 213 281 as 2003) (4th F.2d state all DuPont de Nemours (citing Cir. Dickson v. Iodice v. 2002); 2002)). liberally 574 the to E.I. (4th Cir. Court Leeke, act Cir. 193, the v. Bass v. (4th United States, 289 F.3d 270, Lastly, sufficient her claim." 761, Corp., facts construes 1147, inmate's 1151 advocate, pro (4th sua se Cir. sponte developing statutory and constitutional claims the inmate failed to clearly Carroll, 107 concurring); (4th Cir. raise on F.3d Beaudett 1985). the face 241, 243 v. City of his (4th of complaint. Cir. Hampton, 1997) 775 See Brock (Luttig, F.2d 1274, v. J., 1278 B. In Summary Of Allegations 2010, Turner was Regional Jail ("NNRJ"). records arrived records and at incarcerated in the Northern In November of 2010, Turner's medical NNRJ. examining After Turner, that surgery was warranted." reviewing the Turner's doctor NNRJ at (Am. Compl. 2.)2 take any action to make possible that [Turner] and needed surgery . . . ." lengthy delay in (Id. [Turner's] "The medical refused to get the overdue (spacing corrected).) surgery[,] tremendous use of his leg and on several medical "determined staff ... at NNRJ, Carolyn Neal and Lynn Sudduth[,] the Neck [Turner] "Due to has lost occasions is confined to bed for numerous days with constant swelling and excruciating pain." (Id.) Turner contends the foregoing omissions violated his rights under the Eighth3 and Fourteenth4 Amendments. Turner demands $50,000,000.00 in damages. 2 The Court has corrected the capitalization in the quotations to Turner's Amended Complaint. 3 fines U.S. "Excessive bail shall not be required, nor excessive imposed, nor cruel and unusual punishments inflicted." Const, amend. VIII. 4 "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const, amend. XIV, § 1. C. Analysis In order to state a viable claim under 42 U.S.C. § 1983, a plaintiff must allege that a person acting under color of state law deprived him or her of a constitutional right or of a right conferred by a law of the United States. See Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, Cir. that each Government- official's own individual 1998). official 662, 676 through the (2009) . Complaint, involvement complaint the must in the except for properly and his Turner much events alleges defendant no the 1974) 312 Pa. (E.D. No. less mention explain for which Turner act complaint is even Ashcroft v. not or under the seeks conduct as liberal Potter v. Clark, 32) will Accordingly, be Clarke will be dismissed. granted. the personal relief. "Where on the part the of defendant the complaint is 497 to be F.2d 1206, 1207 281 F. Supp. 306, Clarke's Motion to Any 556 in construction (citing Brzozowski v. Randall, 1968)). Clarke to caption, (4th Iqbal, Clarke's silent name appearing in the dismissed, (7th Cir. does specific given pro se complaints." (Docket plead has violated the Constitution." Amended a plaintiff defendant, actions, U.S. " [A] 658 claim by Turner Dismiss against II. Turner has filed TURNER'S MOTIONS three motions appoint counsel to represent him. in § 1983 cases unless the exceptional circumstances. 166 (4th Cir. 2011) case (Docket Nos. 29, presents 38, Motions 41) the complex See Fowler v. Lee, (citations omitted). Turner's that Court Counsel need not be appointed action presents no complex issues Accordingly, requesting for issues or 18 F. App'x 164, At this juncture, this or exceptional circumstances. the Appointment of Counsel will be denied. Turner also has requested that the Court appoint a guardian ad litem. of a Turner, guardian Motion ad however, litem for Appointment of fails to explain why the appointment is a warranted. Accordingly, Guardian Litem Ad Turner's (Docket No. 42) will be denied. Any party wishing to file a dispositive motion, must do so within sixty (60) days of the date of entry hereof. The Clerk is directed to send a copy of the Memorandum Opinion to Turner and counsel of record. /s/ i/J Date: tj-JLCoJtt^^ /J(tXt?i&Richmond, Virginia Robert E. Payne ML Senior United States District Judge
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