Johnson v. Stone et al
MEMORANDUM OPINION in re 19 MOTION to Dismiss for Failure to State a Claim, 23 MOTION for Summary Judgment. Signed by District Judge Leonie M. Brinkema on 11/14/2023. (Sbro)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Defendants Tracey Stone, L.B. Walker, Gloria Robinson, and Deborah Wynn
(collectively "defendants") have filed two dispositive motions in this civil rights action filed
under 42 U.S.C. § 1983 by Virginia state prisoner Laddarion Johnson ("plaintiff'), who is acting
pro se. Specifically, defendants have filed a Motion to Dismiss [Dkt. No. 19] and a Motion for
Summary Judgment [Dkt. No. 23], which together address all ofthe four claims plaintiff has
raised in his Complaint. Each Motion was accompanied by a clear Roseboro notice advising
plaintiff of his right to respond. [Dkt. Nos. 21, 25]. Plaintiff has filed a single Opposition that
addresses defendants' two Motions.' [Dkt. No. 26]. Defendants have not filed any reply to
plaintiffs Opposition, and the Court therefore considers the pending dispositive motions fully
briefed and ready for consideration. For the reasons explained below,the motions will be
granted, and this action v^ll be closed.
In his Complaint, plaintiff alleges that officials at Baskerville Correctional Center
("Baskerville" or "BCC")violated his right to due process while conducting an annual review of
'Although plaintiffs Opposition is entitled "Reply to Motion to Dismiss for Failure to State
Claims," the document addresses arguments raised in both the Motion to Dismiss and Motion for
Summary Judgment. S^[Dkt. No. 26].
his security and good conduct time levels. [Dkt. No. 1]. His claims specifically relate to alleged
errors that occurred during his annual review in June 2020.^ Id, Plaintiff asserts that those errors
led to a decrease in his ability to earn good time credits and an increase in his security level. Id.
The Complaint names four defendants: Counselor Tracey Stone("Stone"), Chief of Housing
Programs Gloria Robinson ("Robinson"), Operations Manager L.B. Walker ("Walker"), and Unit
Manager Debra Wynn("Wynn"), each of whom is employed at BCC,a prison operated by the
Virginia Department of Corrections("YDOC"). [Dkt. No. 1] at 1-3.
The Court construes^ the Complaint to raise the following claims, all of which relate to
plaintiffs 2020 annual review at Baskerville:
1. Defendant Stone violated plaintiffs rights under the Fourteenth Amendment's Due
Process Clause by erroneously determining plaintiffs good time and security levels.
2. Defendants Wynn and Robinson violated plaintiffs rights under the Fourteenth
Amendment's Due Process Clause by approving defendant Stone's incorrect decisions.
3. Defendant Walker violated plaintiffs rights under the Fourteenth Amendment's Due
Process Clause by failing to properly address the grievances plaintiff filed regarding his
2020 annual review.
^ Although the Complaint also includes allegations regarding plaintiffs 2021 annual review, it is
clear that plaintiff does not seek relief with respect to that review because he was able to correct
errors in the 2021 review through the VDOC's grievance procedure. Moreover, plaintiff has not
named Kenyatta Evans,the counselor responsible for conducting his 2021 review, as a defendant
in this action and has named the counselor who conducted his 2020 review, Tracey Stone.
^ The Complaint does not explicitly identify or enumerate these claims, but the Court concludes
that the list provides a comprehensive overview ofthe possible bases for relief identified in the
pleading. In his Opposition to defendants' Motions, plaintiff invokes the First, Sixth, and Eighth
Amendments, but these sources oflaw have no logical application to the allegations in the
Complaint. Additionally, a plaintiff may not seek to amend his complaint or raise new claims in
briefs opposing dispositive motions. See, e.g.. Zachair. Ltd. v. Driggs. 965 F. Supp. 741,748 n.4
(D. Md. 1997)(stating that a plaintiffis "bound by the allegations contained in [his] complaint
and cannot, through the use of motion briefs, amend the complaint"), affd. 141F.3dll62(4th
Cir. 1998). For these reasons, the Court will not address plaintiffs belated First, Sixth, and
Eighth Amendment arguments.
4. Defendants Wynn, Robinson, and Walker are liable in their supervisory capacities for the
constitutional violations plaintiff suffered.
[Dkt. No. 1].
For these alleged wrongs, plaintiff requests $150,000 in monetary damages and the
creation of"an alternative procedure" under which "an outside department / agency [conducts] a
second review" of decisions made at VDOC inmates' annual reviews. [Dkt. No. 1] at 8.
11. Motion to Dismiss
Defendants Walker, Robinson, and Wynn have filed a Motion to Dismiss. [Dkt. No. 19].
Walker argues that the claims against her should be dismissed entirely, and defendants Robinson
and Wynn seek dismissal of plaintiffs supervisory liability claims against them. [Dkt No. 20].
In other words,the Motion to Dismiss seeks dismissal of Claims 3 and 4.
The Comnlaint^s Allegations
Because defendants' Motion to Dismiss seeks dismissal of Claims 3 and 4, only the
allegations related to those claims are considered here. In relevant part, the Complaint asserts
that,"on or about" June 23,2020, plaintiff had his annual review at BCC. [Dkt. No. 1] at 5.
Counselor Stone conducted the review and, according to plaintiff, made significant mistakes
which affected his security level and good time credits. Id Specifically, plaintiff claims that,
although he should have received a Level 2 good time earning rate, he was classified as Level 4
and assigned a higher security level. Id at 5-6. After Coimselor Stone rendered her decision.
Unit Manager Wynn and Chief of Housing Programs Robinson reviewed and approved the
decision. Id at 6.
Approximately two years after the review, plaintiff"studied the revised operating
procedure 830.3 [and] learned how [an] institutional classification hearing / annual review [is]
suppose[d] to go." Id at 7. Having discovered errors in his 2020 and 2021 annual reviews.
plaintiff"start[ed] writing complaints & grievances" to seek a resolution. Id Although VDOC
officials eventually agreed that errors had occurred in plaintiffs 2021 annual review, they denied
as untimely the grievance plaintiff filed with respect to his 2020 review. Id
Standard of Review
A motion to dismiss under Rule 12(b)(6) ofthe Federal Rules of Civil Procedure requires
a court to consider the sufficiency ofa complaint, not to resolve contests surrounding facts or the
merits of a claim. Republican Partv of N.C. v. Martin. 980 F.2d 943,952(4th Cir. 1992). To
withstand a Rule 12(b)(6) motion,"a complaint must contain sufficient factual matter, accepted
as true, to 'state a claim to relief that is plausible on its face.'" Ashcroff v. Iqbal. 556 U.S. 662,
678(2009)(quoting Bell Atlantic Corp. v. Twomblv.550 U.S. 544, 570(2007)). To do so, the
complaint must allege specific facts in support of each element ofeach claim it raises;
"threadbare recitals ofthe elements of a cause of action, supported by mere conclusory
statements," do not suffice. Id
In Claim 3, plaintiff asserts that defendant Walker should be held liable based on her
decision to deny as untimely his complaints and grievances related to his 2020 annual review.
This claim will be dismissed because the mere denial of an intemal complaint or grievance does
not support any viable due process claim, as "inmates have no constitutional entitlement or due
process interest in access to a grievance procedure." Booker v. S.C. Dep't. of Corr.. 855 F.3d
533,541 (4th Cir. 2017)(citing Adams v. Rice. 40 F.3d 72(4th Cir. 1994)). Consequently,"any
mistakes [defendants] ma[k]e in investigating or ruling on [a] plaintiffs grievances do not rise to
the level of a due process violation." Smith v. Jones. No. 1:20cv01157, 2021 WL 4046403, at *4
(E.D. Va. Sept. 3, 2021);^also Christian v. Thomas. No. 3:20cv00804,2022 WL 1303270, at
*11 (E.D. Va. May 2, 2022)("Because Plaintiff enjoys no constitutional right to participate in
grievance proceedings, his allegation that Defendant Reedy improperly responded to his
grievance is legally frivolous.").
Plaintiff argues that by denying his grievances. Walker failed to "honor" the "black &
white" language of VDOC operating procedures and allowed him to be deprived of his protected
liberty interest in good time credits. [Dkt. No. 1] at 7;[Dkt. No. 26] at 1-2. Plaintiffs argument
is unfounded because the only potential violation of VDOC operating procedures alleged in the
Complaint was defendant Stone's conduct during plaintiffs 2020 annual review, and plaintiff
does not allege that Walker participated in making that decision, only that she denied the
grievance he filed to challenge it. Even if plaintiff had identified a VDOC operating procedure
Walker allegedly violated, such a violation would not amount to a constitutional injury. See
Brown v. Aneelone.938 F. Supp. 340, 344(W.D. Va. 1996)("[A] state's failure to abide by its
own law as to procedural protections is not a federal due process issue.")(citing Riccio v. Cntv.
of Fairfax. 907 F.2d 1459, 1469(4th Cir. 1990)).
For these reasons. Claim 3 will be dismissed.
In Claim 4, plaintiff seeks to hold defendants Robinson, Wynn,and Walker liable in their
supervisory capacities for their failure to correct defendant Stone's alleged mistakes. To state a
supervisory liability claim, a complaint must allege facts that demonstrate(1)that the supervisor
knew his or her subordinate "was engaged in conduct that posed a pervasive and unreasonable
risk of constitutional injury;"(2)that the supervisor's response showed "deliberate indifference
to or tacit authorization ofthe alleged offensive practices;" and(3)that there was an "affirmative
causal link" between the supervisor's inaction and the constitutional injury suffered by the
plaintiff. Shaw v. Stroud. 13 F.3d 791,799(4th Cir. 1994)(internal quotation marks and
citations omitted). With respect to the first element,"[ejstablishing a 'pervasive' and
'unreasonable' risk of harm requires evidence that the conduct is widespread, or at least has been
used on several different occasions and that the conduct engaged in by the subordinate poses an
unreasonable risk of harm of constitutional injury." Id
This claim will be dismissed because the Complaint fails to allege facts satisfying the
first element of supervisory liability; it does not allege any "pervasive and unreasonable" risk of
constitutional injury existed with respect to Baskerville's annual review process. It does not, for
example, allege that multiple inmates had been improperly stripped of good time credits.
Instead, it merely alleges that defendant Stone, on one occasion, erred when computing
plaintiffs good time and security levels. This sole episode is an insufficient basis on which to
find the supervisors, defendants Robinson, Wynn,and Walker, liable. See Slakan v. Porter. 737
F.2d 368,373(4th Cir. 1984)(opining that,"[ojrdinarily,[a plaintiff] cannot satisfy his burden
of proof[as to a supervisory liability claim] by pointing to a single incident or isolated
incidents"). Moreover,simply "[r]uling against a prisoner on an administrative complaint does
not [automatically] cause or contribute to [a][constitutional] violation." George v. Smith. 507
F.3d 605,609(7th Cir. 2007).
For these reasons. Claim 4 will be dismissed.
III. Motion for Summary Judgment
Defendants Stone, Robinson, and Wynn have moved for summary judgment on Claims 1
and 2 asserting that plaintifffailed to exhaust administrative remedies before filing this suit.
[Dkt. Nos. 23, 24].
Statement of Undisputed Facts ^
The following facts are not in dispute. Plaintiff is a state prisoner in the custody ofthe
VDOC and was incarcerated at BCC from October 23,2019 through June 6,2022, when he was
transferred to Sussex II State Prison. [Dkt. No. 24-1] at 1, H 4. As a VDOC inmate, plaintiff
must follow VDOC Operating Procedures,including Operating Procedure("OP")866.1, which
outlines the VDOC grievance procedure. Id. at 2,^ 5. OP 866.1 provides that all issues that
personally affect an inmate are grieveable except those issues pertaining to policies, procedures,
and decisions ofthe Virginia Parole Board; disciplinary hearings; state and federal court
decisions; laws and regulations; and matters beyond the control of the VDOC. Id
Under OP 866.1, an inmate must make a "good faith effort to informally resolve" the
issue he faces. Id at ^ 8. He may do so by submitting an "Informal Complaint," a "Written
Complaint," or a "Verbal Complaint" ^ within fifteen days ofthe incident or discovery ofthe
incident. Id at 2-3, H 8. Only after attempting to resolve his complaint informally may an
inmate file a "Regular Grievance," which he must do within thirty days ofthe incident or
discovery ofthe incident. Id Regular Grievances are stamped and deemed filed on the day they
are received in an institution's grievance department. Id at 3, H 9. Regular Grievances that do
not comply with the requirements of OP 866.1 are returned to the inmate within two days of
their receipt and with an explanation for the rejection. Id at H 10. A Regular Grievance may be
^ The Statement of Undisputed Facts consists ofinformation gleaned from the exhibits
defendants have submitted in support oftheir Motion for Summary Judgment as well as the
Complaint, which contains a sworn affidavit, and plaintiffs Opposition, which also is sworn.
^ Different versions of OP 866.1 have used different terms to describe the step inmates must take
before filing a Regular Grievance. Compare [Dkt. No. 24-1] at 9-22(version of OP 866.1 in
effect between July 1,2016 and January 1,2021, using the term "Informal Complaint") with
[Dkt. No. 24-1] at 23-39(version of OP 866.1 in effect since January 1, 2021, using the terms
"Verbal Complaint" and "Written Complaint").
rejected ifit raises "more than one issue," is filed after the deadline has expired, is duplicative of
another grievance, contains insufficient information, or constitutes a mere "request for services."
Id. at 3-4, H 10. If a Regular Grievance is rejected, an inmate may request review of the rejection
from a Regional Ombudsman, who can overturn the rejection and accept the grievance into the
intake process ifthe reasons for rejection were incorrect. Id. at 4. T| 10.
For grievances that are accepted into the intake process, OP 866.1 provides for three
levels ofreview. Level I reviews are conducted by the warden or superintendent ofthe facility
where the inmate is located. Level II reviews are conducted by the Regional Administrator. For
most issues. Level II is the final level of review available to an inmate. But for those limited
issues appealable to Level III, the Chiefof Corrections Operation or Director ofthe VDOC is
responsible for making a final decision. Id. at ^ 11. Once an inmate has had a Regular
Grievance accepted into the intake process and completed the highest available level of appeal,
he has fully exhausted the VDOC's grievance procedure. Id. at 112.
In this action, plaintiff alleges that errors occurred during his June 23,2020 and June 5,
2021^ annual reviews,^[Dkt. No. 1];[Dkt. No. 24-1] at 5,^ 14;[Dkt. No. 24-1] at 56, and that
he did not learn about the alleged errors until "approx. 2 years" after his 2020 review. [Dkt. No.
I] at 7. Upon discovering that defendants "made multiple errors during [his] 2020 annual review
also [his] 2021 annual review," he began the grievance procedure,"start[ing] with [his] 2021
annual review." Id On January 11, 2022, plaintiff submitted Written Complaint #BACC-22INF-00016, complaining that during his June 5, 2021 annual review (which assessed plaintiffs
record from 2020 through 2021), Counselor Kenyatta Evans miscalculated his good time level.
^ As discussed above, plaintiffs claims deal only with his 2020 review, but details related to his
2021 review and efforts to grieve that issue are relevant to the consideration of defendants'
[Dkt. No. 24-1] at 5,H 14. On February 10, 2022, plaintiff submitted a Regular Grievance
regarding the same issue. Id at T[ 15. Ultimately, plaintiffs Regular Grievance was deemed
founded, and Baskerville officials corrected the errors that were made in plaintiffs 2021 review.
[Dkt. No. 24-1] at 45.
On May 10, 2022, plaintiff submitted Written Complaint #BACC-22-INF-00166,
addressing defendant Stone's allegedly incorrect determinations at his June 23, 2020 annual
review (which assessed plaintiffs record from 2019 through 2020). [Dkt. No. 24-1] at 6,f 18;
[Dkt. No.24-1] at 56. A BCC official responded to plaintiffs Complaint the same day, and two
days later, plaintifffiled a Regular Grievance regarding the issue. [Dkt. No. 24-1] at 6,^ 19;
[Dkt. No. 24-1] at 57. On May 16, 2022, plaintiffs Grievance was rejected because it had been
filed after the filing period had expired. [Dkt. No. 24-1] at 6-7, H 19;[Dkt. No. 24-1] at 58.
Plaintiff appealed this decision to the Regional Ombudsman, who date-stamped the appeal as
received on June 17, 2022, which exceeded the five-calendar day period plaintiff had in which to
appeal the rejection of his grievance,[Dkt. No. 24-1] at 7,119, and for that reason his appeal
Standard of Review
"The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed.
R. Civ. P. 56(a). "A dispute is genuine if a reasonable jury could return a verdict for the
nonmoving party," and "[a] fact is material if it might affect the outcome ofthe suit under the
governing law." Variety Stores v. Wal-Mart Stores. Inc.. 888 F.3d 651,659(4th Cir. 2018).
Once the moving party has met its burden to show that it is entitled to judgment as a matter of
law,the nonmoving party "must show that there is a genuine dispute of material fact for trial...
by offering sufficient proof in the form of admissible evidence." Id (quoting Guessous v.
Fairview Prop. Inv'rs.. LLC.828 F.3d 208,216(4th Cir. 2016)). In evaluating a motion for
summary judgment, a district court must consider the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences from those facts in favor ofthat party.
United States v. Diebold. Inc.. 369 U.S. 654,655 (1962).
Defendants move for summary judgment on the basis that plaintiff failed to exhaust
administrative remedies with respect to his complaint about his 2020 annual review. [Dkt. No.
24]. The record supports defendants' argument.
The Prison Litigation Reform Act("PLRA")states that "[n]o action shall be brought with
respect to prison conditions under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted." 42 U.S.C. § 1997e(a); Woodford v. Neo. 548 U.S. 81,
85(2006)("Exhaustion is no longer left to the discretion ofthe district court, but is
mandatory."). The PLRA requires "proper" exhaustion, which demands full "compliance with
an agency's deadlines and other critical procedural rules." Woodford. 548 U.S. at 90-91,93.
Indeed,the Fourth Circuit has held that a grievance that does not comply with a prison's
procedural requirements does not serve to exhaust the prisoner's administrative remedies.
Moore v. Bennette. 517 F.3d 717,729(4th Cir. 2008).
In this action, the evidence establishes that plaintiff did not properly exhaust the
grievance procedure outlined in OP 866.1 with respect to his complaints about his 2020 annual
review. Although plaintifffiled an Informal Complaint and Regular Grievance regarding the
issue, the latter ofthese documents was rejected at intake as untimely, and this rejection was
upheld on appeal.
Plaintiff does not appear to contest these facts, instead arguing that BCC officials treated
his grievances inconsistently. He points out that his efforts to contest the findings of both his
2020 and 2021 armual reviews were more than thirty days after those reviews occurred, and he
therefore questions why only the grievance related to his 2020 review was rejected as untimely.
See, e.g..[Dkt. No. 26] at 13 ("[I]f that[was] the case then I shouldn't have been able to
grievance [sic] my annual review in the year 2021 because I found the mistakes/errors 8 months
later."). Defendants respond that the relevant timeline dictating the acceptance of one grievance
and rejection of another was based on plaintiffs discovery ofthe errors in his annual reviews,
not the dates ofthe annual review decisions themselves.
Plaintiff provides the chronology of his administrative complaints in his Complaint,
stating that almost"2 years [after his 2020 review]," plaintiff"noticed that [defendants] made
multiple errors" in both his 2020 and 2021 annual reviews and "start[ed] writing complaints &
grievances on these matters  start[ing] with [his] 2021 annual review." [Dkt. No. 1] at 7. The
record reflects that plaintiff filed a Written Complaint regarding his 2021 review on January 11,
2022. [Dkt. No. 24-1] at 5,^ 14. The record further reflects that plaintiff did not file a Regular
Grievance regarding his 2020 annual review until May 10, 2022, some four months after plaintiff
discovered the problem and sought relief for the errors that occurred in his 2021 review. Id at 6,
II19. Because OP 866.1 provides that a grievance must be filed within thirty days ofthe
"discovery ofthe incident,"
[Dkt. No. 24-1] at 26, plaintiffs grievance ofthe 2021 review
was timely and his grievance ofthe 2020 review was untimely according to VDOC procedure.^
Accordingly, plaintiff did not exhaust his administrative remedies regarding his claims about his
2020 annual review, and defendants are thus entitled to judgment in their favor.
For the reasons stated above, the defendants' Motion to Dismiss and Motion for
Summary Judgment will be granted in an Order that will accompany this Memorandum Opinion.
Entered this /
day of November 2023.
United States District Judge
^ Even if defendants did violate OP 866.1, which the record does not support, the failure to abide
by state procedural rules such as OP 866.1 does not amount to any constitutional violation. See
Brown v. Aneelone.938 F. Supp. 340, 344(W.D. Va. Aug. 9,1996)("[A] state's failure to abide
by its own law as to procedural protections is not a federal due process issue.")(citing Riccio v.
Cntv. of Fairfax. 907 F.2d 1459, 1469(4th Cir. 1990)).
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