Smith v. City of Huntington et al

Filing 4

MEMORANDUM OPINION AND ORDER notifying Plaintiff that a failure to amend the complaint as ordered herein within thirty days of the date of this Order will likely result in a recommendation that the complaint, or a portion thereof, be dismissed. Signed by Magistrate Judge Cheryl A. Eifert on 8/15/2017. (cc: Plaintiff) (jsa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
TASHEMA D. SMITH,
Plaintiff,
v.

Case No. 3:17-cv-03806

CITY OF HUNTINGTON, et. al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the court is Plaintiff Tashema D. Smith’s (“Smith”) Application to
Proceed Without Prepayment of Fees and Costs and complaint filed pursuant to 42 U.S.C.
§ 1983, (ECF Nos. 1, 2). Smith’s complaint seeks monetary damages and prospective relief
against several state and federal agencies and the City of Huntington. According to the
complaint, the defendants are harassing Smith in retaliation for her filing a
discrimination case.
In keeping with 28 U.S.C. § 1915(e)(2), the undersigned has conducted a
preliminary review of Smith’s complaint to determine if the action is frivolous, fails to
state a claim upon which relief may be granted, or seeks monetary relief from a defendant
who is immune from such relief. Although pro se complaints, such as the one filed in this
case, must be liberally construed to allow the development of potentially meritorious
claims, the court may not rewrite the pleading to include claims that were never
presented, Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir. 1998), develop the
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plaintiff’s legal theories for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993),
or “conjure up questions never squarely presented” to the court. Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). At the same time, to achieve justice, the
court may allow a pro se plaintiff the opportunity to amend his complaint to correct
deficiencies in the pleading. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
To state a cause of action for money damages under § 1983, a plaintiff must show
that a person was acting under color of state law and deprived the plaintiff of a federally
protected civil right, privilege, or immunity. Perrin v. Nicholson, 2010 U.S. Dist. LEXIS
105121, at *4 (D.S.C. 2010); American Mfr. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50-52
(1999). For the most part, liability under 42 U.S.C. § 1983 is personal in nature, based
upon a defendant’s own constitutional violation. Monell v. Department of Social Services
of the City of NY, 436 U.S. 658, 694. In this case, Smith names only the State of West
Virginia, federal authorities, and various state agencies and political subdivisions as
defendants. None of these entities is a “person” subject to monetary liability under 42
U.S.C. § 1983.
Therefore, if Smith claims that a person (or persons) acting under color of state law
violated her federal civil or constitutional rights, she must amend her complaint to name
the individual or individuals and to state precisely what civil or constitutional right each
individual violated. If Smith is unaware of the names of the relevant individuals, she shall
designate in the case caption each individual whose name is unknown as a John Doe or
Jane Doe (e.g. Department of Housing employee John Doe) and shall further identify
each individual in the body of the complaint by description, date/time of contact, alleged
act, or in some other manner that assists the court in determining the identity and number
of individual defendants in the action, as well as the specific reason that each individual
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defendant is included in the complaint. To the extent Smith knows partial names, she
shall include those parts (e.g. DHHS employee Michael LKU (“last name unknown.”).
In addition, to state a cause of action for prospective relief against the State of West
Virginia or any of its agencies, Smith must name as the defendant the state officer who
has proximity to and responsibility for the challenged state action. See Ex Parte Young,
209 U.S. 123 (1908). The State of West Virginia, itself, is not a proper defendant because
it is generally immune from § 1983 liability under the Eleventh Amendment to the United
States Constitution. However, as the United States Supreme Court explained in Ex Parte
Young, an exception to Eleventh Amendment immunity exists to allow claims against
State officers to enjoin violations of federal law. Id. This exception is extremely narrow:
It applies only to prospective relief, does not permit judgments against state
officers declaring that they violated federal law in the past, and has no
application in suits against the States and their agencies, which are barred
regardless of the relief sought. Rather than defining the nature of Eleventh
Amendment immunity, Young and its progeny render the Amendment
wholly inapplicable to a certain class of suits. Such suits are deemed to
be against officials and not the States or their agencies, which
retain their immunity against all suits in federal court.
Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, 506 U.S. 139, 146 (1993)
(internal citations omitted and emphasis added). “The Ex Parte Young exception is
directed at ‘officers of the state [who] are clothed with some duty in regard to the
enforcement of the laws of the state, and who threaten and are about to commence
proceedings’” to enforce an unconstitutional act against affected parties. McBurney v.
Cuccinelli, II, 616 F.3d 393, 399 (4th Cir. 2010), citing Ex Parte Young, 209 U.S. at 155156. Consequently, Smith’s claim for prospective relief cannot be maintained as filed,
because she has not named an appropriate officer as the defendant. See Thomas v.
Nakatani, 309 F.3d. 1203 (9th Cir. 2002) (acknowledging that the “Ex Parte Young
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doctrine creates a fiction by allowing a person to enjoin future state action by suing a state
official for prospective injunctive relief rather than the state itself. Even so, the Supreme
Court has emphasized the importance of respecting this fiction.”).
In addition to correcting the above-described deficiencies, Smith must also state
facts in the complaint to support her claims. Currently, the complaint fails to detail the
alleged acts of retaliation with enough specificity to avoid dismissal of the lawsuit. The
complaint may not include only conclusory allegations of wrongdoing; instead, the
complaint must include factual statements outlining the acts that Smith claims are illegal
or unconstitutional.
Smith is hereby given notice that a failure to amend the complaint as ordered
within thirty days of the date of this Order will likely result in a recommendation that
the complaint, or a portion thereof, be dismissed for failure to state a claim cognizable
under 42 U.S.C. § 1983 and/or for failure to prosecute under Fed. R. Civ. P. 41 and L. R.
Civ. P. 41.1. Smith is also notified that no action will be taken on her Application until the
complaint has been amended. Finally, Smith is reminded of her obligation to promptly
notify the Clerk of Court of any change in her address.
The Clerk is instructed to provide a copy of this order to Plaintiff.
ENTERED: August 15, 2017

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