PEW v. SIMMONS, et al

Filing 3

MEMORANDUM OPINION. See Opinion for complete details. Signed by District Judge John A. Gibney, Jr., on 03/16/2016. Copy mailed to Plaintiff. (ccol, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Div ision

ALFONSO PERCY PEW,
Plaintiff,

v.

Civil Action No. 3:16CV84

BRUCE SIMMONS, et al.,
Defendants.

MEMORANDUM OPINION
Plaintiff, a Pennsylvania inmate, brings thi s civil action. The matter is before the Court
for evaluation pursuant to 28 U.S.C. §§ 19 15(e)(2) and 19 15A.

J.

PRELIMINARY REVIEW

Pursuant to the Prison Litigation Reform Act (" PLRA") thi s Court must dismiss any
action fi led by a prisoner if the Court determines the action (1) " is frivolous" o r (2) ·'fai ls to state
a claim on wh ich relief may be granted." 28 U.S .C. § 1915(e)(2); see 28 U.S .C . § 19 15A. The
first standard includes cla ims based upon '·an indi sputably meritl ess legal theory," or claims
where the " factua l contenti ons are c learly baseless." Clay v. Yates, 809 F. Supp. 417, 427 (E.D.
Va. 1992) (quoting Neitzke v. · i/liams, 490 U.S. 3 19, 327 (1 989)). The second standard is the
w
fami liar standard fo r a motion to di smiss under Fed. R. Civ. P. 12(b)(6).
Plaintiff alleges that he has been subject to various harsh conditions during his
incarceration in Pennsylvania correctional faci liti es.

Plaintiff names as Defendants, Bruce

Simmons and Unknown Doe, psychologists who have treated Plaintiff during his incarceration in
Pennsylvania, and the company they work for, Mental Hea lth Management, apparently
headquartered in Vienna, Virginia.

II.
A.

ANALYSIS

Mental Health Management

To the extent that Pla intiff names Mental Health Management in o rder to attempt to
create appropriate venue in the Eastern Di strict of Virginia, he fails to a llege facts indicating that
he was subj ected to harsh conditio ns o f confi nement in the Pennsylvani a prison due to some
policy of Mental Health Management.
" (A] private corporation is liable under § 1983 only when an official po licy o r custom of
the corporation causes the alleged deprivation of federal rights." Austin v. Paramount Parks,

Inc., 195 F.3d 715 , 728 (4th Cir. 1999) (citations omitted).
A policy or custom for w hich a [corporatio n] may be held liable can arise in four
ways: ( 1) through an express policy, such as a written ordinance o r regulation;
(2) through the deci sions of a person with final policymaking authority; (3)
through an omission, such as a fa ilure to properly train officers, that " manifest[s]
deliberate indifference to the ri ghts of citizens"; or (4) through a practice that is so
" persistent and widespread" as to constitute a "custom or usage with the fo rce of
law."

Lytle v. Doyle, 326 F.3d 463 , 471 (4th C ir. 2003) (second alteration in original) (quoting Carter
v. Morris, 164 F.3d 215 , 217 (4th Cir. 1999)). Here, Plaintiff has made no effort, as he must, " to
identify the offending [corporate] policy [o r custom] with precision ." Carter , 164 F.3d at 218.
Because, Pla intiff fail s to identify any policy, much less a specific policy or custom of Mental
Health Management that has deprived him of hi s constitutional rights, he fai ls to state a claim for
relief. Accordingly, the Court will DISMI SS any claim agai nst Mental Health Management.

B.

Improper Venue

Plaintiff states that Defend ants Simmons and Doe are psycho logists who have treated him
during his incarceration in Pennsylvania. These Defendants do not reside in Vi rginia. The Court
also notes that despite having three strikes under the Prison Litigatio n Reform Act, Plaintiff

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currently has ongoing or recent litigation in the United States District Court for the M iddle
District of Pennsylvania from hi s incarceration in that district.

See, e.g., Pew v. Boggio,

No. 3: 15-CV-1 042, 2016 WL 704955 (M.D. Pa. Feb. 23, 20 16). It appears that the remaining
Defendants, Simmons and Doe presumably res ide within the Western District of Pennsylvania
and all the events pertaining to the lawsuit occurred in the Western Di strict of Pennsylvania.
Thus, pursuant to 28 U.S.C. § 1391 (b), the proper venue for this action is in the Western District
of Pennsylvan ia, and is not in the Eastern Di strict of Virgin ia.

Accordingly, pursuant to 28

U.S.C. § 1406(a), this action wi ll be transferred to the Western D istrict of Pen nsylvania.

III.

CONCLUSION

Plaintiff's claims against Mental Heal th Management wi ll be DISMISSED. The action
wi ll be TRANSFERRED to the Uni ted States District Cou rt fo r the Western Di strict of
Pennsylvania.
An appropriate Order sha ll issue.

Isl

6 D
Date:
Richmond, Virginia

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John A. Gibney, J.
United States District

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