Bethel v. Depart. of State Police Sex Offender Registry, No. 3:2014cv00183 - Document 9 (E.D. Va. 2014)
Court Description: MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 08/18/2014. (tjoh, )
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1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division r l E . ! 9 2014 LJ i CLERK. U.S. DISTRICT COURT RICHMOND. VA RAYMOND V. BETHEL, JR., Plaintiff, Civil Action No. 3:14CV183-HEH V. DEPART. OF STATE POLICE SEX OFFENDER REGISTRY, Defendant. MEMORANDUM OPINION (Dismissing 42 U.S.C. § 1983 Action) Raymond Bethel Jr., proceeding/?ro 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 informapauperis, 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 1The 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." Ashcroft v. 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 claim that is "plausible on its face," id. at 570, rather than merely "conceivable." Id. "A claim has facial plausibility when the plaintiffpleads 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) (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)). Lastly, while the Court liberally construespro 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 Brockv. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J., concurring); Beaudettv. 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 Thereafter, Bethel "was convicted in [the] Chesapeake Circuit Court for a violent sex offender fail to register." {Id. at 5.) Bethel contends that he is a nonviolent sex offender and should not have to register as a violent sex offender. {See id. at 7.) Bethel demands monetary damages. {Id. at 8.) Bethel names, "Depart, of State Police Sex Offender Registry" as the sole defendant. {Id. at 1.) 2The Court employs thepagination assigned to the Complaint bythe CM/ECF docketing system. 3 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. SeeDowe v. Total Action Against Poverty in Roanoke 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. 4fr* Date: AiJ^QJf 1$ 2*4<f Richmond, Virginia isi HENRY E. HUDSON UNITED STATES DISTRICT JUDGE
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