McCoy v. VA Parole Board
Filing
10
MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 6/22/12. Copy sent: Yes(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
ANTHONY McCOY,
Plaintiff,
v.
Civil Action No. 3:11CV651
VA. PAROLE BOARD,
Defendant.
MEMORANDUM OPINION
Plaintiff, a Virginia state prisoner proceeding pro se and in forma pauperis, brings this
civil rights action.
The matter is before the Court for evaluation pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A.
I. BACKGROUND
The Magistrate Judge made the following findings and recommendations:
Preliminary Review
Pursuant to the Prison Litigation Reform Act ("PLRA") this Court must
dismiss any action filed by a prisoner 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); see 28 U.S.C. § 1915A. The first standard includes claims
based upon "'an indisputably meritless legal theory,'" or claims where the
"'factual 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, 129 S. Ct. 1937, 1950
(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.'" Bell Atl 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.
at 555 (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 plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Bell Atl. Corp., 550
U.S. at 556). Therefore, in order for a claim or complaint to survive dismissal for
failure to state a claim, 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. UnitedStates, 289 F.3d 270, 281 (4th Cir. 2002)).
Lastly, while the Court liberally construes pro se complaints, Gordon v.
Leeke, 51A F.2d 1147, 1151 (4th Cir. 1978), it does not act as the inmate's
advocate, sua sponte developing statutory and constitutional claims the inmate
failed to clearly raise on the face of his complaint. See Brock v. Carroll, 107 F.3d
241, 243 (4th Cir. 1997) (Luttig, J., concurring); Beaudett v. City ofHampton, 775
F.2d 1274, 1278 (4th Cir. 1985).
Summary of Allegations
McCoy alleges:
I petitioned the governor for a pardon in June of 2010, due
to the conditions of my confinement. It was supposed to be
investigated by the VA. Parole Board. But the VA. Parole Board
is part of D.O.C. so they lied & said my confinement is not serious
in any way therefore keeping me in a hindering & harmful
state/situation/condition. [It is] VA. Parole Board/VA. D.O.C.'s
fault. These people are inhumane very sick/cruel. They'll do/say
anything to watch me suffer. Thus I am suffering.
(Compl. 5.)1 McCoy requests to be moved to a different prison. McCoy names
"VA. Parole Board" as the sole defendant. (Id. at 1.)
Analysis
In order to state a viable claim against an individual 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
The Court has corrected the capitalization in the quotations to McCoy's complaint.
2
United States. See Dowe v. TotalAction Against Poverty in Roanoke Valley, 145
F.3d 653, 658 (4th Cir. 1998) (citing 42 U.S.C. § 1983). The "VA. Parole Board"
(Compl. 1) is not a person within the meaning of 42 U.S.C. § 1983. See Harden
v. Green, 27 F. App'x 173, 178 (4th Cir. 2001) (citing Will v. Mich. Dep't ofState
Police, 491 U.S. 58, 70-71 (1989); Fischer v. Cahill, A1A F.2d 991, 992 (3d Cir.
1973)). Furthermore, McCoy has not alleged facts that plausibly suggest any
person violated his constitutional rights. See Connecticut Bd. of Pardons v.
Dumschat, 452 U.S. 458, 464 (1981) (holding that "an inmate has 'no
constitutional or inherent right' to commutation of his sentence"); id. at 465
(holding that a "felon's expectation that a lawfully imposed sentence will be
commuted or that he will be pardoned is no more substantial than an inmate's
expectation, for example, that he will not be transferred to another prison; it is
simply a unilateral hope") (footnote and citation omitted); Burnette v. Fahey, No.
3:10CV70, 2010 WL 4279403, at *8 (E.D. Va. Oct. 25, 2010) (citing cases for the
proposition that Virginia inmates do not enjoy a a protected liberty interest in
parole release); Waters v. Bass, 304 F. Supp. 2d 802, 805 (E.D. Va. 2004) (citing
cases for "the well-established principle that an inmate has no constitutional right
to be housed in any particular prison"). Accordingly, it is RECOMMENDED that
the action be dismissed for failure to state a claim.
(April 10, 2012 Report and Recommendation (alterations in original).) The Court advised
Plaintiff that he could file objections or an amended complaint within fourteen (14) days after the
entry of the Report and Recommendation. Plaintiff has not responded.
II. STANDARD OF REVIEW
"The magistrate makes only a recommendation to this court. The recommendation has
no presumptive weight, and the responsibility to make a final determination remains with this
court." Estrada v. Witkowski, 816 F. Supp. 408, 410 (D.S.C. 1993) (citing Mathews v. Weber,
423 U.S. 261, 270-71 (1976)). This Court "shall make a de novo determination of those portions
of the report or specified proposed findings or recommendations to which objection is made." 28
U.S.C. § 636(b)(1). "The filing of objections to a magistrate's report enables the district judge to
focus attention on those issues—factual and legal—that are at the heart of the parties' dispute."
Thomas v. Am, 474 U.S. 140, 147 (1985).
In the absence of a specific written objection, this
Court may adopt a magistrate judge's recommendation without conducting a de novo review.
See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005).
3
III. CONCLUSION
There being no objections, the Report and Recommendation will be accepted and
adopted. Plaintiffs claims and the action will be dismissed. The Clerk will be directed to note
the disposition of the action for purposes of 28 U.S.C. § 1915(g).
An appropriate Order will accompany this Memorandum Opinion.
Date:^ c^*W
Richmond, Virginia
JsL
James R. Spencer
United States District Judge
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