Smith v. City of Huntington et al, No. 3:2017cv03806 - Document 4 (S.D.W. Va. 2017)
Court Description: MEMORANDUM OPINION AND ORDER notifying Plaintiff that a failure to amend the complaint as ordered herein within thirty days of the date of this Order will likely result in a recommendation that the complaint, or a portion thereof, be dismissed. Signed by Magistrate Judge Cheryl A. Eifert on 8/15/2017. (cc: Plaintiff) (jsa)
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Smith v. City of Huntington et al Doc. 4 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 TASH EMA D . SMITH , Plain tiff, v. Cas e N o . 3 :17-cv-0 3 8 0 6 CITY OF H U N TIN GTON , e t. al., D e fe n d an ts . MEMORAN D U M OPIN ION AN D ORD ER Pending before the court is Plaintiff Tashem a D. Sm ith’s (“Sm ith”) Application to Proceed Without Prepaym ent of Fees and Costs and com plaint filed pursuant to 42 U.S.C. § 1983, (ECF Nos. 1, 2). Sm ith’s com plaint seeks m onetary dam ages and prospective relief against several state and federal agencies and the City of Huntington. According to the com plaint, the defendants are harassing Sm ith in retaliation for her filing a discrim ination case. In keeping with 28 U.S.C. § 1915(e)(2), the undersigned has conducted a prelim inary review of Sm ith’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 1 Dockets.Justia.com 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 court m ay allow a pro se plaintiff the opportunity to am end his com plaint to correct deficiencies in the pleading. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). To state a cause of action for m oney dam ages under § 1983, a plaintiff m ust show that a p e r s o n 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. Sullivan, 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. In this case, Sm ith nam es only the State of West Virginia, federal authorities, and various state agencies and political subdivisions as defendants. None of these entities is a “person” subject to m onetary liability under 42 U.S.C. § 1983. Therefore, if Sm ith claim s that a person (or persons) acting under color of state law violated her federal civil or constitutional rights, she m ust am end her com plaint to nam e the individual or individuals and to state precisely what civil or constitutional right each individual violated. If Sm ith is unaware of the nam es of the relevant individuals, she shall designate in the case caption each individual whose nam e is unknown as a J ohn Doe or J ane Doe (e.g. Departm ent of Housing em ployee J ohn Doe) an d s h all fu rth e r id e n tify each individual in the body of the com plaint by description, date/ tim e of contact, alleged act, or in som e other m anner that assists the court in determ ining the identity and num ber of individual defendants in the action, as well as the specific reason that each individual 2 defendant is included in the com plaint. To the extent Sm ith knows partial nam es, she shall include those parts (e.g. DHHS em ployee Michael LKU (“last nam e unknown.”). In addition, to state a cause of action for prospective relief against the State of West Virginia or any of its agencies, Sm ith m ust nam e as the defendant the state officer who has proxim ity to and responsibility for the challenged state action. See Ex Parte Young, 20 9 U.S. 123 (190 8). The State of West Virginia, itself, is not a proper defendant because it is generally im m une from § 1983 liability under the Eleventh Am endm ent to the United States Constitution. However, as the United States Suprem e Court explained in Ex Parte Young, an exception to Eleventh Am endm ent im m unity exists to allow claim s against State officers to enjoin violations of federal law. Id. This exception is extrem ely narrow: It applies only to prospective relief, does not perm it judgm ents against state officers declaring that they violated federal law in the past, and has no application in suits against the States and their agencies, which are barred regardless of the relief sought. Rather than defining the nature of Eleventh Am endm ent im m unity, Young and its progeny render the Am endm ent wholly inapplicable to a certain class of suits. Su ch s u its are d e e m e d to be again s t o fficials an d n o t th e State s o r th e ir age n cie s , w h ich re tain th e ir im m u n ity again s t all s u its in fe d e ral co u rt. Puerto Rico Aqueduct and Sew er Authority v. Metcalf & Eddy , 50 6 U.S. 139, 146 (1993) (internal citations om itted and em phasis added). “The Ex Parte Young exception is directed at ‘officers of the state [who] are clothed with som e duty in regard to the enforcem ent of the laws of the state, and who threaten and are about to com m ence proceedings’” to enforce an unconstitutional act against affected parties. McBurney v. Cuccinelli, II, 616 F.3d 393, 399 (4th Cir. 20 10 ), citing Ex Parte Young, 20 9 U.S. at 155156. Consequently, Sm ith’s claim for prospective relief cannot be m aintained as filed, because she has not nam ed an appropriate officer as the defendant. See Thom as v. N akatani, 30 9 F.3d. 120 3 (9th Cir. 20 0 2) (acknowledging that the “Ex Parte Young 3 doctrine creates a fiction by allowing a person to enjoin future state action by suing a state official for prospective injunctive relief rather than the state itself. Even so, the Suprem e Court has em phasized the im portance of respecting this fiction.”). In addition to correcting the above-described deficiencies, Sm ith m ust also state facts in the com plaint to support her claim s. Currently, the com plaint fails to detail the alleged acts of retaliation with enough specificity to avoid dism issal of the lawsuit. The com plaint m ay not include only conclusory allegations of wrongdoing; instead, the com plaint m ust include factual statem ents outlining the acts that Sm ith claim s are illegal or unconstitutional. Sm ith is hereby given notice that a failure to am end the com plaint as ordered within th irty d ays of the date of this Order will likely result in a recom m endation that the com plaint, or a portion thereof, 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. Sm ith is also notified that no action will be taken on her Application until the com plaint has been am ended. Finally, Sm ith is rem inded of her obligation to prom ptly notify the Clerk of Court of any change in her address. The Clerk is instructed to provide a copy of this order to Plaintiff. EN TERED : August 15, 20 17 4
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