Etterson v. Newcome et al

Filing 10

MEMORANDUM OPINION. Read for details. Signed by District Judge John A. Gibney, Jr., on 10/05/2015. (ccol, )

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

VICTOR M. ETTERSON,
Plaintiff,
V.

Civil Action No. 3:14CV650

JEFFERY NEWCOME, et aL,
Defendants.
MEMORANDUM OPINION

Victor M. Etterson, a former Virginia inmate proceeding pro se and in forma pauperis,

filed this 42 U.S.C. § 1983 action.' The matter is before the Court for evaluation pursuant to 28
U.S.C. §§ 1915(e)(2) and 1915A.
I.

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

The statute provides, in pertinent part:

Every person who, under color of any statute ... of any State ... subjects, or
causes to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law....

42 U.S.C. § 1983.

(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 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 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, 1 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, 556 U.S. 662,
679 (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 All. 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. (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." Jqbal, 556 U.S. at 678 (citing Bell Atl Corp., 550 U.S. at 556). 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); lodice v. United States, 289 F.3d 270, 281 (4th Cir. 2002)). Lastly,
while the Court liberally construes pro se complaints, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th
Cir. 1978), it will not act as the inmate's advocate and develop, sua sponte, statutory and
constitutional claims that 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 of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
11.

Summary of Allegations

The allegations in Etterson's Complaint are as follows:

I was removed from Ramadan by Sgt. Moore and jailer McCormick on
July 5, 2014 at Riverside Regional Jail, because Sgt. Moore and jailer McCormick
saw me drink water and eat some food, because the Ramadan tray was late. The
dinner trays had been served about 2 hours earlier.. .. But as soon as I took a sip

of water and a bite to eat, Sgt. Moore and jailer McCormick ran over to me and
said, you are off of Ramadan. I tried to explain to them that it did not need to be
dark outside, just as long as the sun had gone down[. W]ell they didn't want to
believe me, but it's the truth.

On July 6, 2014[,] jailer McCormick and Sgt. Moore, feed me breakfast,
lunch and dinner, with the rest of medical housing 2 where I was assigned at the
time. But when the shift changed on July 6, 2014[,] jailer Armstrong gave me my
Ramadan tray, and breakfast, because she said my name was still on the Ramadan
list. But on July 7, 2014[,] during the morning shift[,] jailer Spretely came on,
and gave me breakfast, but when she went on her lunch break, I did not get a
lunch tray or dinner tray that evening. When jailer Armstrong came on she did
not give me a Ramadan tray, because Sgt. Moore told her I was no longer on
Ramadan. From that point, I was no longer on Ramadan.
(Compl. 5 (spelling, spacing, and capitalization corrected).)

Etterson demands money damages and injunctive relief in the form of "[s]top Riverside
Regional Jail from regulating or prohibiting the free exercise of Muslim faith and dietary
laws ...(Compl. 6 (capitalization and spelling corrected).)

Etterson names Jeffery Newcome, the Superintendent of the Riverside Regional Jail,

Sergeant Moore, and Jailer McCormick as defendants.

{Id. at 2-3.)

As explained below,

Etterson fails to state a claim against Defendant Newcome, fails to state a claim under the
"Religious Reformation Federal Law Act," and fails to state a claim for injunctive relief because
any claim is moot. Etterson alleges sufficient facts to make out a First Amendment claim against
Defendants Moore and McCormick.

111.
A.

Analysis

No Personal Involvement by Defendant Newcome

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, 658 (4th Cir. 1998). "Where a complaint alleges no specific act or conduct
on the part of the defendant and the complaint is silent as to the defendant except for his name
appearing in the caption, the complaint is properly dismissed, even under the liberal construction
to be given pro se complaints." Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974) (citing U.S.
ex rel. Brzozowski v. Randall, 281 F. Supp. 306, 312 (E.D. Pa. 1968)). Here, Etterson fails to
mention Defendant Newcome in the body of the Complaint. Thus, he has failed to allege a claim
against Defendant Newcome."

^ In an attachment to his Complaint, entitled "Complaint At Law," Etterson also lists Dr.
E. Boakye in the caption. (ECF No. 1-1, at 1.) In his Complaint, Etterson fails to name Dr.
Boakye as a defendant, does not mention him in the body of the Complaint, and fails to indicate

B.

First Amendment^

Etterson appears to bring a claim under the Free Exercise Clause of the First

Amendment/ To state a claim, Etterson must allege facts that suggest that "(1) he holds a
sincere belief that is religious in nature" and (2) that Defendants Moore and McCormick imposed
a substantial burden on the practice of his religion. WhUehoKse v. Johnson, No. I:10cvll75

(CMH/JFA), 2011 WL 5843622, at *4 (E.D. Va. Nov. 18, 2011) (citing Hernandez v. Comm'r,
490 U.S. 680, 699 (1989)). "Government officials impose a substantial burden on the free
exercise of religion by 'put[ting] substantial pressure on an adherent to modify his behavior and
to violate his beliefs.'" Massenburg v. Adams, No. 3:08cvl06, 2011 WL 1740150, at *4 (E.D.

Va. May 5, 2011) (alteration in original) (quoting Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir.
2006) (some internal quotation marks omitted)).

Assuming without deciding that Etterson's religious beliefs are sincere, Etterson alleges
sufficient facts to make out a claim that Defendants Moore and McCormick imposed a

substantial burden on his ability to practice his religion in violation of the First Amendment.
C.

Claim for Injunctive Relief is Moot

Here, the alleged constitutional violations took place in the Riverside Regional Jail.

Etterson, however, is no longer incarcerated there. {See ECF No. 5, at 1.) "[A]s a general rule, a
prisoner's transfer or release from a particular prison moots his claims for injunctive and
that Dr. Boakye was personally involved in the deprivation of his First Amendment rights. Thus,
any lurking claim against Dr. Boakye will be DISMISSED.

^Etterson bring his claims under the First Amendment and the "Religious Reformation
Federal Law Act." (Compl. 5.) To the extent Etterson intends to bring his challenge under the
Religious Freedom Restoration Act of 1993 ("RFRA"), 42 U.S.C. § 2000bb et seq., RFRA was
invalidated as it applied to state officials. See City ofBoerne v. Flores, 521 U.S. 507, 532-36
(1997). Thus, Etterson fails to state a claim for relief under RFRA.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof.. . U . S . Const, amend. I.
5

declaratory relief with respect to his incarceration there." Rendelman v. Rouse, 569 F.3d 182,
186 (4th Cir. 2009) (citing Jnciimaa v. Ozminf, 507 F.3d 281, 286-87 (4th Cir. 2007); Williams v.

Griffin, 952 F.2d 820, 823 (4th Cir. 1991); Taylor v. Rogers, 781 F.2d 1047, 1048 n.I (4th Cir.
1986)). Etterson fails to allege that his claim for injunctive relief against Defendants Moore and
McCormick remain viable.

Accordingly, Etterson's request for injunctive relief will be

DISMISSED AS MOOT.
IV.

Conclusion

Accordingly, Etterson's claims against Defendant Newcome will be DISMISSED.
Etterson's request for injunctive relief will be DISMISSED AS MOOT. Etterson's claim under
RFRA will be DENIED. The Court will continue to process the action with respect to Etterson's
First Amendment claim against Defendants Moore and McCormick.

An appropriate Order will accompany this Memorandum Opinion.

Date:

^

Richmond, Virginia

John A. Gibney,
United States District Judge