Bethel v. Depart of State Police, No. 3:2014cv00170 - Document 8 (E.D. Va. 2014)

Court Description: MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 8/18/14. Copy sent: Yes (tdai, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division RAYMOND V. BETHEL, JR. Plaintiff, Civil Action No. 3:14CV170-HEH DEPART. OF STATE POLICE SEX OFFENDER REGISTRY, Defendant. MEMORANDUM OPINION (Dismissing 42 U.S.C. § 1983 Action) Raymond Bethel Jr., proceeding pro se and informa pauperis, filed this 42 U.S.C. § 1983 action.1 The matter is before the Court for evaluation pursuant to 28 U.S.C. §§ 1915(e)(2). A. Preliminary Review Where an individual is proceeding informa pauperis, this Court must dismiss the action 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 The statute provides, in pertinent part: Every person who, under color of any statute ... of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.... 42 U.S.C. § 1983. 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 ofN.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 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." Ashcroftv. 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.'" BellAtl 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 2 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 BellAtl 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) (citingDickson 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 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 complaint. See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J., concurring); Beaudett v. City ofHampton, 775 F.2d 1274, 1278 (4th Cir. 1985). B. Summary of Allegations Bethel was charged with failing to reregister as a violent sex offender. (Compl. 4.)2 Bethel states that "around the time that I was charged[,] information was added to the sex offender registry that I was previously convicted of a violent sex offender failure to reregister." {Id. at 5.) Bethel contends that he is a nonviolent sex offender, not a violent sex offender, and therefore should have to register once a year, not every thirty 2The Court employs the pagination assigned to the Complaint by the CM/ECF docketing system. The Court corrects the capitalization in the quotations from Bethel's Complaint. days. {See id. 5-6.) Bethel also complains that due to the "public perception" of sex offenders, he lacks the ability to have a fair and impartial trial. {Id. at 6-7.) Bethel demands "some compensation for 5 years of harassment" and a "[a] hearing to challenge the validity of my being listed and to be removed from the sex offender registry." {Id. at 8.) Bethel names, "Depart, of State Police Sex Offender Registry" as the sole defendant. {Id. at 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 either a constitutional right or a right conferred by a law of the United States. See Dowe v. Total ActionAgainst Poverty inRoanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998) (citing 42 U.S.C. § 1983). The Department of State Police, Sex Offender Registry, is not a person for purposes of 42 U.S.C. § 1983. See Will v. Michigan Dep't State Police, 491 U.S. 58, 66 (1989). Accordingly, the action will be dismissed without prejudice. An appropriate Order will accompany this Memorandum Opinion. H^ Date: Autuj? IZlci y Richmond, Virginia IsL HENRY E.HUDSON UNITED STATES DISTRICT JUDGE

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