Turner v. Cuccinelli et al
Filing
49
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 12/12/12. Copy sent: Yes(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
EARL S.
TURNER,
Plaintiff,
v.
Civil Action No.
KEN CUCCINELLI,
3:11CV181
et al. ,
Defendants.
MEMORANDUM OPINION
Earl
in
S.
Turner,
forma pauperis,
matter
is
No. 15) .
a Virginia prisoner proceeding pro
filed this
proceeding
In
his
on
Turner's
Amended Complaint,
individuals as defendants:
Hull,
Carolyn Neal,
is
before
the
No.
32)
the
reasons
42 U.S.C.
§ 1983 complaint.
Amended
Complaint
Turner names
the
The
(Docket
following
on
Clarke's
Motion
to
The matter
Dismiss
(Docket
and several nondispositive motions filed by Turner.
set
and
Ken Cuccinelli,1 Harold Clarke, Ted
and Lynn Sudduth as defendants.
Court
se
forth below,
Clarke's Motion to
For
Dismiss will be
granted and Turner's motions will be denied.
I.
A.
"A
CLARKE'S MOTION TO DISMISS
Standard For A
motion
sufficiency
of
to
a
Motion To Dismiss
dismiss
complaint;
under
Rule
importantly,
12(b)(6)
it
does
1 By Memorandum Order entered on April 2,
dismissed
Cuccinelli
as
a
defendant
because
mention him in the body of the Amended Complaint.
tests
not
2012,
Turner
the
resolve
the Court
did
not
contests surrounding the facts,
applicability of defenses."
the merits of a claim,
or the
Republican Party of N.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 plaintiff's well-pleaded allegations are taken as true and the
complaint
is
plaintiff.
Cir.
in
see
only
also
to
Martin,
factual
motion
considering
a
identifying
pleadings
conclusions,
are
not
Ashcroft v. Iqbal,
The
the
light
most
favorable
to
the
Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th
1993);
applies
viewed
Federal
980
allegations,
to
dismiss
that,
556 U.S.
to
952.
they
the
to
are
"a
begin
no
assumption
Procedure
court
more
of
by
than
truth."
679 (2009).
Civil
principle
and
choose
662,
of
This
however,
can
because
entitled
Rules
F.2d at
"require[
]
only
*a
short and plain statement of the claim showing that the pleader
is
entitled
to
relief,'
notice of what the
rests.'"
U.S.
41,
47
with
complaints
"formulaic
order
to
^give
the
defendant
fair
. . . claim is and the grounds upon which it
Bell Atl.
(second alteration
in
Corp.
in
(1957)).
v.
original)
of
only
the
550
U.S.
544,
(quoting Conley v.
Plaintiffs
containing
recitation
Twombly,
cannot
"labels
elements
2
satisfy
and
of
a
555
Gibson,
this
of
355
standard
conclusions"
cause
(2007)
or
a
action."
Id.
(citations omitted).
sufficient
level,"
"to
id.
"plausible
raise
a
its
"conceivable,"
id.
plaintiff pleads
reasonable
550
a plaintiff must allege facts
to
relief
omitted),
face,"
id.
at
570,
U.S.
at
that
Iqbal,
the
a
claim
rather
that
than
is
merely
the
allows the court
defendant
is
556 U.S.
at
678
Therefore,
556).
speculative
facial plausibility when the
factual content that
inference
above
stating
"A claim has
misconduct alleged."
Corp.,
right
(citation
on
the
Instead,
in
to draw
liable
order
for
the
(citing Bell Atl.
for
a
claim or
complaint to survive dismissal for failure to state a claim,
the
plaintiff
the
must
"allege
elements of
[his or]
& .Co.,
F.3d
324
Microsoft
309
765
F.3d
complaints,
1978),
it
while
Gordon
does
not
213
281
as
2003)
(4th
F.2d
state
all
DuPont de Nemours
(citing
Cir.
Dickson
v.
Iodice
v.
2002);
2002)).
liberally
574
the
to
E.I.
(4th Cir.
Court
Leeke,
act
Cir.
193,
the
v.
Bass v.
(4th
United States, 289 F.3d 270,
Lastly,
sufficient
her claim."
761,
Corp.,
facts
construes
1147,
inmate's
1151
advocate,
pro
(4th
sua
se
Cir.
sponte
developing statutory and constitutional claims the inmate failed
to
clearly
Carroll,
107
concurring);
(4th Cir.
raise
on
F.3d
Beaudett
1985).
the
face
241,
243
v.
City
of
his
(4th
of
complaint.
Cir.
Hampton,
1997)
775
See
Brock
(Luttig,
F.2d
1274,
v.
J.,
1278
B.
In
Summary Of Allegations
2010,
Turner
was
Regional Jail ("NNRJ").
records
arrived
records
and
at
incarcerated
in
the
Northern
In November of 2010, Turner's medical
NNRJ.
examining
After
Turner,
that surgery was warranted."
reviewing
the
Turner's
doctor
NNRJ
at
(Am. Compl. 2.)2
take any action to make possible that [Turner]
and needed surgery . . . ."
lengthy delay
in
(Id.
[Turner's]
"The medical
refused to
get the overdue
(spacing corrected).)
surgery[,]
tremendous use of his leg and on several
medical
"determined
staff ... at NNRJ, Carolyn Neal and Lynn Sudduth[,]
the
Neck
[Turner]
"Due to
has lost
occasions is confined
to bed for numerous days with constant swelling and excruciating
pain."
(Id.)
Turner contends the foregoing omissions violated
his rights under the Eighth3 and Fourteenth4 Amendments.
Turner
demands $50,000,000.00 in damages.
2
The
Court
has
corrected
the
capitalization
in
the
quotations to Turner's Amended Complaint.
3
fines
U.S.
"Excessive bail shall not be required, nor excessive
imposed, nor cruel and unusual punishments inflicted."
Const,
amend.
VIII.
4 "No State shall . . . deny to any person within its
jurisdiction the equal protection of the laws."
U.S. Const,
amend.
XIV,
§ 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 a constitutional right or of a right
conferred
by
a
law
of
the
United
States.
See
Dowe
v.
Total
Action Against Poverty in Roanoke Valley,
145 F.3d 653,
Cir.
that
each
Government-
official's
own
individual
1998).
official
662,
676
through
the
(2009) .
Complaint,
involvement
complaint
the
must
in the
except for
properly
and
his
Turner
much
events
alleges
defendant
no
the
1974)
312
Pa.
(E.D.
No.
less
mention
explain
for which Turner
act
complaint
is
even
Ashcroft v.
not
or
under
the
seeks
conduct
as
liberal
Potter v. Clark,
32)
will
Accordingly,
be
Clarke will be dismissed.
granted.
the
personal
relief.
"Where
on the part
the
of
defendant
the complaint is
497
to
be
F.2d 1206,
1207
281 F. Supp.
306,
Clarke's Motion to
Any
556
in
construction
(citing Brzozowski v. Randall,
1968)).
Clarke
to
caption,
(4th
Iqbal,
Clarke's
silent
name appearing in the
dismissed,
(7th Cir.
does
specific
given pro se complaints."
(Docket
plead
has violated the Constitution."
Amended
a
plaintiff
defendant,
actions,
U.S.
" [A]
658
claim by
Turner
Dismiss
against
II.
Turner
has
filed
TURNER'S MOTIONS
three
motions
appoint counsel to represent him.
in
§
1983
cases
unless
the
exceptional circumstances.
166
(4th Cir.
2011)
case
(Docket Nos.
29,
presents
38,
Motions
41)
the
complex
See Fowler v. Lee,
(citations omitted).
Turner's
that
Court
Counsel need not be appointed
action presents no complex issues
Accordingly,
requesting
for
issues
or
18 F. App'x 164,
At this juncture, this
or exceptional circumstances.
the
Appointment
of
Counsel
will be denied.
Turner also has requested that the Court appoint a guardian
ad litem.
of
a
Turner,
guardian
Motion
ad
however,
litem
for Appointment
of
fails to explain why the appointment
is
a
warranted.
Accordingly,
Guardian
Litem
Ad
Turner's
(Docket
No.
42)
will be denied.
Any party wishing to file a dispositive motion,
must do so
within sixty (60) days of the date of entry hereof.
The
Clerk
is
directed
to
send
a
copy
of
the
Memorandum
Opinion to Turner and counsel of record.
/s/
i/J
Date: tj-JLCoJtt^^ /J(tXt?i&Richmond, Virginia
Robert E. Payne
ML
Senior United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?