Blake v. Ballard et al

Filing 3

PROPOSED FINDINGS AND RECOMMENDATION (recommending that the presiding District Judge DISMISS plaintiff's Complaint under 28 U.S.C. Section 1915A with prejudice). This case no longer referred to Magistrate Judge Mary E. Stanley. Objections to Proposed F&R due by 10/18/2010. Signed by Magistrate Judge Mary E. Stanley on 10/1/2010. (cc: plaintiff) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON

ROBERT BLAKE,
Plaintiff,
v.

Case No. 2:10-cv-01152

DAVID BALLARD, Warden,
MARVIN PLUMLEY, Deputy Warden,
and LARRY PROPST, Business Manager
at Mount Olive,
Defendants.

PROPOSED FINDINGS AND RECOMMENDATION
Plaintiff has filed a Complaint under 42 U.S.C. § 1983 (docket
# 1).

Plaintiff is currently an inmate at the Mount Olive

Correctional Complex, serving a sentence for Sexual Assault in the
First Degree.

This matter is assigned to the Honorable Joseph R.

Goodwin, Chief United States District Judge, and it is referred to
the

undersigned

recommendation

for
for

submission
disposition,

of

proposed

pursuant

to

findings
28

and

a

U.S.C.

§

636(b)(1)(B).
Plaintiff has filed six other civil actions in this court.
Four of those have been voluntarily dismissed.

In the instant

Complaint, Plaintiff alleges that on or about September 22, 2010,
the

Warden,

Deputy

Warden

and

Business

Manager

sent

out

a

memorandum stating that, after October 1, 2010, the prison will be
eliminating indigent pay. Plaintiff seeks injunctive relief in the

form of an Order by the court to stop the elimination of this
payment program.

(# 1 at 4-5).
STANDARD OF REVIEW

Pursuant to the provisions of 28 U.S.C. ' 1915A, the court
screens

each

case

in

which

a

prisoner

seeks

redress

from

a

governmental entity or officer or employee of a governmental
entity.

On review, the court must dismiss the case if the

complaint is frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief from a
defendant who is immune from such relief. In Bell Atlantic Corp v.
Twombly, 550 U.S. 544, 570 (2007), the Supreme Court observed that
a case should be dismissed for failure to state a claim upon which
relief

can

be

granted

allegations

in

the

if,

complaint

viewing
as

the

true

well-pleaded

and

in

the

factual

light

most

favorable to the plaintiff, the complaint does not contain “enough
facts to state a claim to relief that is plausible on its face.”
While the complaint need not assert “detailed factual allegations,”
it must contain “more than labels and conclusions” or a “formulaic
recitation of the elements of a cause of action.”

Id. at 555.

The Supreme Court further explained its holding in Twombly in
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), a civil rights case.
The Court wrote:
Two working principles underlie our decision in
Twombly. First, the tenet that a court must accept as
true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals
2

of the elements of a cause of action, supported by mere
conclusory statements, do not suffice. [Twombly, 550
U.S.] at 555, 127 S. Ct. 1955 (Although for the purposes
of a motion to dismiss we must take all of the factual
allegations in the complaint as true, we “are not bound
to accept as true a legal conclusion couched as a factual
allegation” (internal quotation marks omitted). Rule 8
. . . does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.
Second, only a complaint that states a plausible claim
for relief survives a motion to dismiss. Id., at 556. *
* *
In keeping with these principles 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.
While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.
When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.
129 S. Ct. at 1949-50.1
ANALYSIS
Plaintiff’s allegations fail to meet the standard set by the
Supreme Court in Sandin v. Conner, 515 U.S. 472 (1995).

In that

case, the Court held that liberty interests protected by the Due
Process Clause “will be generally limited to freedom from restraint
which, while not exceeding the sentence in such an unexpected
manner as to give rise to protection by the Due Process Clause of
its

own

force,

nonetheless

imposes

1

atypical

and

significant

Because service of process has not occurred, a motion to
dismiss has not been filed in this case. Such a motion, filed
pursuant to Rule 12(b)(6), Fed. R. Civ. P., asserts that the
complaint fails “to state a claim upon which relief can be
granted,” which is the same standard set forth in 28 U.S.C. §
1915A.
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hardship on the inmate in relation to the ordinary incidents of
prison

life.”

Plaintiff’s

Id.

at

allegations

atypical or significant.

484

(internal

suggest

no

citations

hardship

omitted).

which

is

either

Plaintiff has no federal constitutional

right to receive “indigent pay,” and this court has no authority or
control over such prison programs.
For these reasons, the undersigned proposes that the presiding
District Judge FIND that Plaintiff’s Complaint fails to state a
claim upon which relief may be granted and is legally frivolous.
Accordingly, it is respectfully RECOMMENDED that the presiding
District Judge DISMISS Plaintiff’s Complaint under 28 U.S.C. §
1915A with prejudice.
Plaintiff

is

notified

that

this

“Proposed

Findings

and

Recommendation" is hereby FILED, and a copy will be submitted to
the Honorable Joseph R. Goodwin, Chief United States District
Judge. Pursuant to the provisions of Title 28, United States Code,
Section 636(b)(1)(B), and Rules 6(d) and 72(b), Federal Rules of
Civil Procedure, Plaintiff shall have fourteen days (filing of
objections) and three days (mailing) from the date of filing this
“Proposed Findings and Recommendation” within which to file with
the Clerk of this Court, specific written objections, identifying
the portions of the “Proposed Findings and Recommendation” to which
objection is made, and the basis of such objection.

Extension of

this time period may be granted by the presiding District Judge for
4

good cause shown.
Failure to file written objections as set forth above shall
constitute a waiver of de novo review by the District Court and a
waiver of appellate review by the Circuit Court of Appeals. Snyder
v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S.
140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United
States v. Schronce, 727 F.2d 91 (4th Cir. 1984).

Copies of such

objections shall be provided to the presiding District Judge.
The Clerk is directed to file this “Proposed Findings and
Recommendation” and to mail a copy of the same to Plaintiff.
October 1, 2010
Date

5