Walker v. Laundry et al

Filing 3

MEMORANDUM OPINION. See Opinion for complete details. Signed by District Judge Henry E. Hudson on 02/03/2017. Copy of Memorandum Opinion mailed to Walker.(ccol, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

FE8

JERMAINE KEITH WALKER,

3

clerk RICHMONDJ^
U.S. DiSTRiCT COURT
^

Petitioner,

Civil Action No. 3;17CV20-HEH

V.

DAVID SCOTT LAUNDRY, et al.

Respondent.
MEMORANDUM OPINION

(Dismissing Civil Action as Frivolous)

Jermaine Keith Walker, a former Virginia inmate, filed this civil action he titles

"In re: Personal Rights[,] 42 U.S.C. § 1983" ("Complaint," ECF No. 1). 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 (E.D. Va. 1992) (quoting Neitzke v. Williams. 490

' Walker has not yetapplied to proceed informa pauperis in this action and hehas not paid the
filing fee. Nevertheless, because of the apparent frivolity of this actionfrom the face of the
Complaint, the Court dismisses the action.

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 5ACharles A. Wright & Arthur R. Miller, FederalPractice 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 inthe

light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th
Cir. 1993). 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 orderto '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 cannotsatisfythis 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," stating a claim that is "plausible on
its face," rather than merely "conceivable." Id. at 555, 570 (citations omitted). "A claim
2

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, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). 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.L 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 construespro 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 ofHampton, 775 F.2d 1274,1278 (4th Cir. 1985).
11.

SUMMARY OF ALLEGATIONS

Inhis Complaint, Walker states:^
For the matter of three years the Defendant in this matter has been
conspiring with persons known [and] unknown to attempt to take my minor
child from me [and] prevent me from petitioning the federal court by use of
threat, intimidation [and] filing false and misleading statements under color
of law.

At this time, the Defendant is believed to have knowingly violated
the 4th, 14th [and] 1st, 9th Amendments of the U.S. Constitution, to
withhold a negro child from me as a parent.
This is now the third or fourth time the Defendant has specifically
continued to proceed in matters w/o having jurisdiction, personal or subject
matter [and] also the third time the Defendants have acted under color of
2

The Court utilizes the pagination assigned to Walker's Complaint by the CM/ECF docketing
system. The Court corrects the spelling, capitalization, and punctuation in the quotations from

his submissions.

the law simply to withhold my child or prevent me from petitioning the
federal court. After advising me in open court he is aware of such
deprivation. He has continued to harass me, take my child, attempt to
change my name, altered court cases [and] attempted to refuse me access to
relief or prevent me from filing in the federal court to cover up his forgery
[and] false utterings.
At this time he has caused or contributed to the abduction of my

child [and] myself under the color of law [and] without jurisdiction, to
preventme from petitioning Honorable James R. Spencer.
I have direct evidence [and] have created a record.

He again has attempted to alter my name to abduct me [and]
withhold me from petitioning your court.
I think I am in "RRJ" . . . under a pseudonym "Jermaine Walker"

[and they] manipulated my record to do this. So I've put what I have in
here

(Compl. 1-2.)^
III.

ANALYSIS

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 orher of a constitutional right orof 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). Here, Walker lists numerous
constitutional amendments but fails to allege facts indicating that Defendants' purported

conduct has violated any constitutional right. SeeShanklin v. Seals, No. 3:07CV319,
2010 WL 1225741, at *14 (E.D. Va. Mar. 26, 2010) (dismissing a § 1983 claim when

plaintiff"faile[d] to allege what constitutional right [was] implicate[d], much less any
violation of a constitutional right"). Walker also fails to identify, and this Court fails to
discern, how child custody proceedings, or his "abduction," states a federal claim for
^Walker asks the Court to bring him here to Court because "at no time have this Court remanded
my case back to state court." (Compl. 2.) Walker has no properly removed case pending inthis
Court.

relief. Accordingly, Walker has failed to allege any cognizable § 1983 claims against
Defendants. Therefore, Walker's § 1983 claims will be dismissed as frivolous.
Furthermore, to the extent that Walker has any remaining state law claims
pertaining to child custody matters, this Court lacks diversity jurisdiction over those

claims because it appears that all parties are citizens of the Commonwealth of Virginia.
IV.

CONCLUSION

Walker's action will be dismissed for lack ofjurisdiction and as legally frivolous.
The Clerk will be directed to note the disposition ofthe action for purposes of 28 U.S.C.
§ 1915(g).
An appropriate Order will accompany this Memorandum Opinion.
/s/
HENRY E. HUDSON

Date:

3 golO

Richmond, Virginia

UNITED STATES DISTRICT JUDGE