United States District Court, S.D. West Virginia, Huntington Division
TASHEMA D. SMITH, Plaintiff,
CITY OF HUNTINGTON, et al., Defendants.
MEMORANDUM OPINION AND ORDER
A. Eifert United States Magistrate Judge.
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.
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 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).
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.
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
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.”).
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 155-156. 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 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.”).
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.
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 ...