Jarrett v. West Virginia Division of Pardon and Parole, No. 3:2016cv09282 - Document 5 (S.D.W. Va. 2016)
Court Description: MEMORANDUM OPINION AND ORDER directing Plaintiff to amend his complaint within 45 days of the date of this Order and cure the following deficiencies in pleading, as more fully set forth herein; noticing Plaintiff that a failure to amend the complaint as directed may result in a recommendation that the complaint be dismissed for failure to state a claim cognizable under 42 U.S.C. § 1983 and/or for failure to prosecute under Fed. R. Civ. P. 41 and L. R. Civ. P. 41.1.; Plaintiff is also remind ed of his obligation to promptly notify the Clerk of Court of any change in contact information; Plaintiff's 1 Application to Proceed Without Prepayment of Fees and Costs shall be held in abeyance pending initial review of Plaintiff's amended complaint or pending other further proceedings in this case. Signed by Magistrate Judge Cheryl A. Eifert on 10/5/2016. (cc: Plaintiff) (mkw)
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Jarrett v. West Virginia Division of Pardon and Parole Doc. 5 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA H U N TIN GTON D IVISION W ILLIAM JARRETT, Plain tiff, v. Cas e N o . 3 :16 -cv-0 9 2 8 2 W EST VIRGIN IA D IVISION OF PARD ON AN D PAROLE, D e fe n d an t. MEMORAN D U M OPIN ION AN D ORD ER Pending before the Court is Plaintiff’s Application to Proceed Without Prepaym ent of Fees and Costs, (ECF No. 1), and a written statem ent prepared by Plaintiff that has been construed by the Clerk of Court as a Com plaint filed pursuant to 42 U.S.C. § 1983, (ECF No. 2). In keeping with 28 U.S.C. § 1915(e)(2), the undersigned has conducted a prelim inary review of Plaintiff’s com plaint to determ ine if the action is frivolous, fails to state a claim upon which relief m ay be granted, or seeks m onetary relief from a defendant who is im m une from such relief. Although pro se com plaints, such as the one filed in this case, m ust be liberally construed to allow the developm ent of potentially m eritorious claim s, the court m ay not rewrite the pleading to include claim s that were never presented, Parker v. Cham pion, 148 F.3d 1219, 1222 (10 th Cir. 1998), develop the plaintiff’s legal theories for him , Sm all v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court. Beaudett v. City of Ham pton, 775 F.2d 1274, 1278 (4th Cir. 1985). At the sam e tim e, to achieve justice, the 1 Dockets.Justia.com court m ay allow a pro se plaintiff the opportunity to am end his com plaint in order to correct deficiencies in the pleading. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Plaintiff apparently com plains about a decision m ade by the West Virginia Division of Pardons and Parole and about a letter that Plaintiff sent to the Division. However, Plaintiff fails to identify a cause of action against the Division, fails to state how his com plaint triggers federal jurisdiction, and fails to request specific relief. In order for the undersigned to com plete a prelim inary review of the m erits of the com plaint and rule on the m otion to proceed in form a pauperis, Plaintiff is ORD ERED to am end his com plaint within fo rty-five ( 4 5) d ays of the date of this Order and cure the following deficiencies in pleading as indicated below: 1. In order to state a cause of action for m oney dam ages under 42 U.S.C. § 1983, a plaintiff m ust show that a person (the defendant) was acting under color of state law and deprived the plaintiff of a federally protected civil right, privilege, or im m unity. Perrin v. Nicholson, 20 10 U.S. Dist. LEXIS 10 5121, at *4 (D.S.C. 20 10 ); Am erican Mfr. Mut. Ins. Co. v. Sulliv an, 526 U.S. 40 , 50 -52 (1999). For the m ost part, liability under 42 U.S.C. § 1983 is personal in nature, based upon a defendant’s own constitutional violation. Monell v. Departm ent of Social Services of the City of NY, 436 U.S. 658, 694, 98 S.Ct. 20 18, 56 L.Ed.2d 611 (1978). Here, Plaintiff has only nam ed the West Virginia Division of Pardons and Parole as a defendant. The Division is not a “person” subject to liability under 42 U.S.C. § 1983. Therefore, if Plaintiff claim s that a person acting under color of state law has violated his federal civil or constitutional rights, he m ust am end his com plaint to nam e the individual and to state precisely what civil or constitutional right was violated. If Plaintiff did not intend for his statem ent to constitute a com plaint under 42 U.S.C. § 1983, then he m ust am end the com plaint to identify the cause of action he claim s and to 2 show how that cause of action falls within the jurisdiction of this federal court. 2. Plaintiff m ust identify the nature of the injury he claim s to have suffered as a result of the alleged wrongdoing. Plaintiff currently m akes no claim for relief. Accordingly, the com plaint m ust be am ended to describe the injury suffered and the relief requested. Plain tiff is h e re by give n n o tice that a failure to am end the com plaint as ordered may result in a recom m endation that the com plaint be dism issed for failure to state a claim cognizable under 42 U.S.C. § 1983 and/ or for failure to prosecute under Fed. R. Civ. P. 41 and L. R. Civ. P. 41.1. Plaintiffs is also rem inded of his obligation to prom ptly notify the Clerk of Court of any change in contact inform ation. Plaintiff’s Application to Proceed Without Prepaym ent of Fees and Costs, (ECF No. 1), shall be held in abeyance pending initial review of Plaintiff’s am ended com plaint or pending other further proceedings in this case. The Clerk is instructed to provide a copy of this order to Plaintiff. EN TERED : October 5, 20 16 3
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