United States District Court, D. Maryland
January 21, 2016, the court received for filing the Complaint
filed by Charles Banks, who is self-represented. The
Complaint was filed on a 42 U.S.C. § 1983 civil rights
form. Banks seeks compensatory damages due to the
“negligence” of two correctional officers
assigned to the Howard County Department of Corrections
(“HCDC”). ECF Nos. 11 & 20. Defendants HCDC,
Georgie, and Sciandra have filed a Motion to Dismiss. ECF 15.
Although Banks was granted additional time to file an
opposition, he has not done so. Rather, he has filed motions
to amend, for appointment of counsel, and for a mental
evaluation. ECF 19-21. Defendants have filed oppositions to
the motions. ECF 22; ECF 23.
matter is ready for disposition; no hearing is necessary.
See Local Rule 105.6 (D. Md. 2016). For reasons that
follow, Defendants' Motion to Dismiss (ECF No. 12 &
24) shall be granted. Banks' motions to amend, for
appointment of counsel, and for a mental evaluation shall be
states that on November 4 or November 5, 2015, he was being
escorted to another local prison facility in shackles and
handcuffs by Correctional Officers Georgie and Sciandra. He
claims that neither officer provided him assistance when
descending a flight of stairs and he tripped over the
shackles, was thrown down the flight of stairs, and knocked
unconscious. ECF 1 at 4. Banks asserts he was taken to Howard
County General Hospital, treated, and released. He contends
that he was not provided the Naproxen and Flexerall
prescribed by physicians at the hospital, but was instead
given Ibuprofen. Banks alleges he was not given Naproxen
until two months after his injury. He claims that the
escorting officers were negligent and did not ensure his
personal safety. Id. at 5.
Banks' Motions to Amend, for Appointment of Counsel and
for Mental Evaluation
asks to be permitted to amend his complaint seemingly because
he does not understand defendants' reference to this
court's diversity jurisdiction. ECF 19. Additionally, he
asks to be provided the assistance of counsel due to his
“scarce resources” and “learning
disability” (attention deficit disorder). ECF 20.
Finally, he asks to be provided a mental evaluation for
“discovery purposes.” ECF 21.
court finds no exceptional circumstances warranting the
appointment of counsel. See Whisenant v. Yuam, 739
F.2d 160, 163 (4th Cir. 1984), abrogated on other grounds by
Mallard v. U.S. District Court for the S. Dist. of
Iowa, 490 U.S. 296, 298 (1989). Nor has Banks provided a
justiciable reason for obtaining a mental evaluation.
Further, although Banks seeks leave to amend his complaint,
he fails to attach an amended pleading to his motion, as
prescribed by local rules. See Local Rule 103.6 (D.
Md. 2016). Banks's motions shall be denied.
Standard of Review --Motion to Dismiss
purpose of a motion to dismiss filed pursuant to Rule
12(b)(6) is to test the sufficiency of the complaint.
See Presley v. City of Charlottesville, 464
F.3d 480, 483 (4th Cir. 2006). A plaintiff's complaint
need only satisfy the standard of Rule 8(a), which requires a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). “Rule 8(a)(2) still requires a ‘showing,
' rather than a blanket assertion, of entitlement to
relief.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 n. 3 (2007). That showing must consist of more than
“a formulaic recitation of the elements of a cause of
action” or “naked assertion[s] devoid of further
factual enhancement.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal citations omitted).
stage, the court must consider all well-pleaded allegations
in a complaint as true, Albright v. Oliver, 510 U.S.
266, 268 (1994), and must construe all factual allegations in
the light most favorable to the plaintiff. See Harrison
v. Westinghouse Savannah River Co., 176 F.3d 776, 783
(4th Cir. 1999) (citing Mylan Labs., Inc. v.
Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). Because
Banks is self-represented, his submissions are liberally
construed. See Erickson v. Pardus, 551 U.S. 89, 94
(2007). In evaluating the Complaint, however, the court need
not accept unsupported legal allegations, Revene v.
Charles Cnty. Comm'rs, 882 F.2d 870, 873 (4th Cir.
1989), nor must it agree with legal conclusions couched as
factual allegations, Ashcroft v. Iqbal, 556 U.S. at
678, or conclusory factual allegations devoid of any
reference to actual events, United Black Firefighters v.
Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see also
Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.
2009). “[W]here the well-pleaded facts do not permit
the court to infer more than the mere possibility of
misconduct, the complaint has alleged, but it has not
‘show[n] ... that the pleader is entitled to
relief.'” Iqbal, 556 U.S. at 679 (quoting
Fed.R.Civ.P. 8(a)(2)). Thus, “[d]etermining whether a
complaint states a plausible claim for relief will...be a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
maintain that Banks's complaint fails to set out a
constitutional complaint so as to be colorable under §
1983. They further argue that the correctional officers'
alleged failure to ensure Banks' personal safety
constitutes a claim for which remedies are not available in
this court. Rather, such remedies are available in state
court under traditional tort law principles. Moreover, they
maintain that because there is no diversity of citizenship
among the parties, Banks's negligence claim cannot be
heard by this court, as the court lacks subject-matter
jurisdiction over the matter. ECF 15-1.
42 U.S.C. § 1983, a private cause of action for
constitutional violations by persons acting under color of
state law. Section 1983 “‘is not itself
a source of substantive rights, ' but merely provides
‘a method for vindicating federal rights elsewhere
conferred.'” Albright v. Oliver, 510 U.S.
266, 271, (1994) (quoting Baker v. McCollan, 443
U.S. 137, 144 n. 3 (1979)). Accordingly, a civil action under
§ 1983 allows “a party who has been
deprived of a federal right under the color of state law to
seek relief.” City of Monterey v. Del Monte Dunes
at Monterey, Ltd., 526 U.S. 687, 707 (1999). See
also 28 U.S.C. §§ 1343(a)(3) and (4); West
v. Adkins, 487 U.S. 42, 49 (1988); Lugar v.
Edmondson Oil Co., 457 U.S. 922, 928-930 (1982).
1983 provides, ...