Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Simmons v. Martin

United States District Court, S.D. West Virginia, Charleston

April 3, 2018

CHARLESTON AARON K. SIMMONS, Plaintiff,
v.
PREECE MARTIN, CO I, Defendant.

          PROPOSED FINDINGS AND RECOMMENDATION

          Dwane L. Tinsley United States Magistrate Judge

         This matter is assigned to the Honorable Thomas E. Johnston, Chief United States District Judge, and it is referred to the undersigned United States Magistrate Judge for submission of proposed findings and recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B).

         STANDARD OF REVIEW

         Pro se complaints are held to less stringent standards than those drafted by attorneys, and the court is obliged to construe liberally such complaints. However, 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 if, viewing the well-pleaded factual allegations in the complaint as true and in the 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 elaborated on 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 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.

         RELEVANT PROCEDURAL HISTORY

         On October 29, 2014, the plaintiff filed a Complaint (ECF No. 2) under 42 U.S.C. § 1983 alleging that a use of pepper spray against him at the Mount Olive Correctional Complex on May 25, 2014 by Correctional Officer I Preece Martin violated his rights under the Eighth Amendment to the United States Constitution, Article III, § 5 of the West Virginia Constitution, and also constituted assault and battery under state law. The plaintiff seeks declaratory relief and monetary damages from the defendant in his individual and official capacities.

         The court's initial attempt to serve process on defendant Martin at the Mount Olive Correctional Complex was unsuccessful. Thus, on March 13, 2018, the undersigned ordered the plaintiff to provide an address where Martin might be served within 20 days. As of this date, the plaintiff has failed to provide any information concerning an address for service of process on defendant Martin.

         ANALYSIS

         A. The Complaint should be dismissed under Rule 4(m) of the Federal Rules of Civil Procedure.

         Although the court is charged with assisting the pro se pauper plaintiff with service of process under 28 U.S.C. ยง 1915(d), the court is not required to be an advocate for him. A prior attempt of service of process on defendant Martin at MOCC was unsuccessful and the plaintiff has not provided any ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.