Kinard v. Williams
Filing
57
FINAL ORDER. 55 Motion to Substitute Attorney is GRANTED. The Clerk is DIRECTED to update the docket accordingly. It is ORDERED that the Court OVERRULES Plaintiff's objections to the R&R; ACCEPTS Magistrate Judge Krask's findings of fact and conclusions of law; and ADOPTS the recommendation set forth there, with the exception that the Court will retain jurisdiction over this matter for the sole purpose of enforcing the terms of the Settlement Agreement, if necessary. The Clerk is DIRECTED to send a copy of this Final Order to Plaintiff and to counsel for Defendant. Signed by District Judge Arenda L. Wright Allen on 1/27/2025. Copies mailed 1/27/2025. (jmey)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
Norfolk Division
JORDAN JOSEPH KINARD,
Plaintiff,
v.
ACTION NO. 2:20cv126
MS. WILLIAMS,
Defendant.
FINAL ORDER
This matter is before the Court to address Plaintiff’s objections to a Report and
Recommendation (“R&R”) filed by United States Magistrate Judge Robert J. Krask.
See Obj. R&R, ECF No. 54; R&R, ECF No. 53.
I.
Relevant Procedural History
Plaintiff, a Virginia inmate, filed this pro se action pursuant to 42 U.S.C.
§ 1983 to redress alleged violations of his constitutional rights. Am. Compl., ECF
No. 7. On June 14, 2022, counsel for Defendant filed: (i) a joint Motion to Dismiss
with Prejudice, ECF No. 27; (ii) a proposed Order of Dismissal with Prejudice, ECF
No. 27-1; and (iii) a redacted copy of the parties’ Settlement Agreement, ECF No. 28.
In accordance with the parties’ joint Motion to Dismiss, the Court entered a Dismissal
Order on June 23, 2022, and this action was dismissed with prejudice. See Dismissal
Order at 1, ECF No. 29.
On July 7, 2022, Plaintiff filed an “Objection to Motion to Dismiss,” which the
Court construes as a motion to vacate judgment pursuant to Federal Rule of Civil
Procedure 59(e) (“Rule 59(e) Motion”). 1 R. 59(e) Mot., ECF No. 31. Defendant timely
filed a Response, ECF No. 32. Plaintiff then filed a Motion to Void Settlement, ECF
No. 34, and a Reply to Defendant’s Response, ECF No. 38.
Upon review of Plaintiff’s Motions and Defendant’s Response, the Court, in an
Order entered on February 8, 2023, noted that it “ha[d] serious concerns regarding
the manner in which this matter was presented to the Court for settlement.” See
Order at 2–4, ECF No. 40 (detailing the Court’s concerns). Accordingly, the Court
ordered counsel for Defendant to file additional briefing regarding the parties’
settlement. Id. at 4–5.
Thereafter, counsel filed a Response to the Court’s February 8, 2023 Order,
which provided additional background and explanation regarding the parties’
settlement discussions and the terms upon which they agreed to settle. Suppl. Resp.
at 2–8, ECF No. 43. Plaintiff then filed a Reply to Defendant’s Supplemental
Response, ECF No. 46. By Order entered on January 26, 2024, the Court referred this
matter to Magistrate Judge Krask pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal
Rule of Civil Procedure 72(b), to issue a Report and Recommendation for the
disposition of Plaintiff’s pending motions. Order at 1–2, ECF No. 48.
Magistrate Judge Krask held an evidentiary hearing on March 27, 2024, and
issued a Report and Recommendation on May 8, 2024. R&R, ECF No. 53. Plaintiff
1 Magistrate Judge Krask recommends in the R&R that Plaintiff’s July 7, 2022
filing be construed as a Rule 59(e) motion. See R&R at 10–12, ECF No. 53. Plaintiff
did not object. See Obj. R&R, ECF No. 54. Accordingly, the Court will ADOPT that
recommendation.
2
timely filed objections. Obj. R&R, ECF No. 54. Defendant did not file objections or a
response to Plaintiff’s objections. 2
II.
The R&R
Magistrate Judge Krask sets forth a detailed factual background of this case
in the R&R. See R&R at 2–10. Magistrate Judge Krask also makes several
recommendations to the Court regarding the disposition of this matter, and in
support of those recommendations, he makes several factual findings and credibility
determinations. See generally id. at 3–30. The Court will briefly summarize those
recommendations.
Magistrate Judge Krask first recommends that Plaintiff’s Rule 59(e) motion be
granted, and the Court’s June 23, 2022 Dismissal Order and Judgment be vacated.
See R&R at 10–16. Plaintiff did not object to these recommendations. See Obj. R&R
at 1–9. Then, “[h]aving set aside the judgment and the order of dismissal,” Magistrate
Judge Krask recommends that “the Court . . . again address [D]efendant’s motion to
dismiss the case with prejudice, ECF No. 27, which now has been fully briefed and
heard.” R&R at 16. In order to rule upon the dismissal motion, Magistrate Judge
Krask notes that the Court must first determine “whether the parties, in fact, agreed
to settle this matter and, if so, upon what terms.” Id.
Applying Virginia contract law, Magistrate Judge Krask found that the parties
had in fact agreed to settle this matter and that “the only settlement agreement
2 Counsel for Defendant subsequently filed a Motion to Substitute Attorney,
ECF No. 55. Upon review, the Motion to Substitute Attorney, ECF No. 55, is
GRANTED. The Clerk is DIRECTED to update the docket accordingly.
3
among the parties is the . . . agreement executed by [Plaintiff] on May 4, 2022, and
by defense counsel on May 5, 2022” (the “Settlement Agreement”). Id. at 17. In
making this finding, Magistrate Judge Krask found that the events and discussions
preceding the signing of the Settlement Agreement could not be used to alter the
terms of the agreement or to create any other enforceable contractual obligations
between the parties. Id. at 18–22. Likewise, Magistrate Judge Krask found that the
events and discussions following the signing of the Settlement Agreement did not
create a separate contract or obligation between the parties. Id. at 22–24. Plaintiff
objected to these findings. See Obj. R&R at 6–7.
Having found that the signed Settlement Agreement was the only agreement
between the parties, Magistrate Judge Krask proceeded to address Plaintiff’s
arguments against dismissing this matter pursuant to the parties’ agreement, as well
as Plaintiff’s request to declare the agreement void. R&R at 24–29. Magistrate Judge
Krask also addressed Plaintiff’s alternative request to find that prison officials
breached the Settlement Agreement. Id. at 29–30. Magistrate Judge Krask
recommends that the Court dismiss this action pursuant to the terms of the parties’
Settlement Agreement and deny Plaintiff’s requests to either declare the agreement
void or find that prison officials breached the agreement. See R&R at 30. Plaintiff
objected to these recommendations. See Obj. R&R at 7–8.
4
For the reasons set forth below, Plaintiff’s objections will be OVERRULED,
the Court will ADOPT the R&R as modified below, 3 and this action will be
DISMISSED with prejudice.
III.
Standard of Review
When a pro se party objects to a magistrate judge’s recommendations, “district
courts must review de novo any articulated grounds to which the litigant appears to
take issue.” Elijah v. Dunbar, 66 F.4th 454, 460–61 (4th Cir. 2023). In addition,
whenever a party objects to a magistrate judge’s credibility determination, the
district court must review the audio recording or a transcript of the relevant
testimony. See Allen v. United States, No. 1:18cr154, 2022 WL 2045328, at *2 (S.D.
W. Va. June 7, 2022) (“To fulfill its obligation to make a de novo review, a district
court must independently review the transcript or audio of the evidentiary hearing.”
(citing Alexander v. Peguese, 836 F.2d 545 (4th Cir. 1987))). “However, ‘when
objections to strictly legal issues are raised and no factual issues are challenged, de
novo review of the record may be dispensed with.”’ Reid v. North Carolina, 837 F.
Supp. 2d 554, 557 (W.D.N.C. 2011) (quoting Orpiano v. Johnson, 687 F.2d 44, 47 (4th
Cir.1982)), aff’d, 471 F. App'x 188 (4th Cir. 2012). Likewise, de novo review is not
required “when a party makes general or conclusory objections that do not direct the
court to a specific error in the magistrate judge’s proposed findings and
recommendations.” Id. (quoting Orpiano, 687 F.2d at 47); see also United States v.
Midgette, 478 F.3d 616, 622 (4th Cir. 2007) (“[T]o preserve for appeal an issue in a
As explained below, the Court will retain jurisdiction to enforce the
Settlement Agreement, if necessary.
5
3
magistrate judge’s report, a party must object to the finding or recommendation on
that issue with sufficient specificity so as reasonably to alert the district court of the
true ground for the objection.”).
IV.
Discussion
As summarized above, Magistrate Judge Krask makes the following
recommendations: (i) that Plaintiff’s July 7, 2022 filing (ECF No. 31) be construed as
a motion to vacate judgment pursuant to Federal Rule of Civil Procedure 59(e), and
that the motion be granted; (ii) that the Court’s June 23, 2022 Dismissal Order and
ensuing Judgment (ECF Nos. 29, 30) be vacated; (iii) that “Plaintiff’s requests to treat
the parties’ settlement as void, to find that one or more [D]efendants breached the
settlement agreement, and to enter into a new settlement agreement” be denied; 4
(iv) that Plaintiff’s “objection to the newly reinstated motion to dismiss” be overruled;
and (iv) that this matter be dismissed with prejudice, and without a reservation of
jurisdiction. R&R at 1–2, 16.
Because it is difficult to discern the exact basis for some of Plaintiff’s objections,
the Court has attempted to broadly construe the objections in deference to Plaintiff’s
pro se status. See Elijah, 66 F.4th at 460–61 (explaining that a pro se litigant’s
objections to a magistrate judge’s recommendations must be construed liberally). The
Court construes Plaintiff’s filing to state the following objections: (i) that Magistrate
4 These requests are set forth in Plaintiff’s Motion to Void Settlement, ECF
No. 34, and Plaintiff reiterated them during the March 27, 2024 hearing, as well as
in his Objections to the R&R. See Tr. at 36–37 (Plaintiff stating that he wanted to be
“restored” to his pre-settlement conditions and renegotiate a new settlement); Obj.
R&R at 7–8 (Plaintiff arguing that the Settlement Agreement should be declared
“void.”)
6
Judge Krask erred in determining that the parties’ pre-agreement discussions did not
create any separate contractual obligations; (ii) that Magistrate Judge Krask erred
in determining that the parties’ post-agreement discussions did not create any
separate contractual obligations; (iii) that Magistrate Judge Krask erred in
recommending that Plaintiff’s requests to void the settlement agreement be denied;
and (iv) that Magistrate Judge Krask erred in rejecting Plaintiff’s claims that prison
officials breached the Settlement Agreement. Obj. R&R at 1–11.
A.
The Settlement Agreement
As noted above, after finding that the Court’s June 23, 2022 Dismissal Order
should be vacated, Magistrate Judge Krask proceeded to determine whether the
parties had in fact agreed to settle this matter, and if so, on what terms. See R&R
at 16–18. Magistrate Judge Krask sets forth the factual background of the parties’
settlement discussions in the R&R. See R&R at 3–7. As the R&R recounts, defense
counsel received an offer from Plaintiff to settle this matter on April 18, 2022. Id.
at 3. Plaintiff offered to settle in exchange for a transfer from Sussex II State Prison
to Sussex I State Prison. Id. (citing Pl.’s Joint Mot. Dismiss, ECF No. 43-2). The
April 18, 2022 offer “followed approximately 10 prior settlement offers apparently
made by [Plaintiff], or persons purporting to act on his behalf, to counsel for the
[D]efendant from November 2021 through April 2022.” Id. at 3 n.2.
Defendant did not accept the April 18, 2022 offer; however, defense counsel
spoke with Plaintiff via telephone on April 29, 2022, to discuss settlement. Id. at 4.
The R&R recounts the subsequent events as follows:
7
Before the scheduled 1:30 p.m. telephone call, counsel for [Defendant]
emailed counselor Young at Sussex II prison at 1:12 p.m., asking that
she provide [Plaintiff] with an attached draft, unsigned settlement
agreement (“first draft”) at the start of the call. [First Apr. 29, 2022
Email,] ECF No. 43-3 [at 1].
After the 1:30 p.m. telephone call with [Plaintiff], counsel for
[Defendant] again emailed counselor Young at 1:41 p.m., asking that she
provide [Plaintiff] with an attached “updated, draft, unsigned
settlement agreement (“second draft”). [Second Apr. 29, 2022 Email,]
ECF No. 43-4 [at 1]. Counsel also requested that the document be
scanned and emailed to her “[o]nce [Plaintiff] has signed it.” Id. at 1.
. . . [T]he second draft modified the first draft, reportedly pursuant to
the telephone discussion between [Plaintiff] and defense counsel, that
occurred after counsel prepared and sent the first draft. Compare [First
Draft,] ECF No. 43-3, at 2, ¶ 1 with [Second Draft,] ECF No. 43-4, at 2
¶ 1.
In a March 10, 2023 affidavit, counselor Young states that counsel for
defendant Williams contacted her on April 29, 2022 about providing
certain documents to Kinard. [Young Aff.,] ECF No. 43-7. Counselor
Young states that she “received two documents by email from [defense
counsel] and . . . gave them both to [Plaintiff],” but does not indicate
when she did so. Id. [Plaintiff] acknowledged receiving both documents
during the hearing, but expressed uncertainty about when that
happened.
On May 4, 2022, [Plaintiff] signed and dated the first draft proposal.
[Redacted Settlement Agreement,] ECF No. 28, at 2. Apparently,
[Plaintiff] provided the signed document to a prison staff member at
Sussex II, who forwarded it by email to defense counsel, who signed and
dated it on May 5, 2022, beneath [Plaintiff’s] signature. Id. [Plaintiff]
testified that he received, but never signed the second draft.
On May 5, 2022, [Plaintiff] wrote a letter to defense counsel stating that
the written agreement [that Plaintiff had signed the day prior and sent
to defense counsel] omitted a provision he had apparently requested
during the April 29, 2022 telephone call, seeking to delay his transfer
from Sussex II to Sussex I, until after he received a television and his
late June birthday. [Pl.’s May 5, 2022, Letter,] ECF No. 32-4 (reciting
that counsel said “okay no problem”). A date stamp reflects that the
Attorney General’s office received this letter on May 12, 2022. Id.
[Plaintiff’s] letter requested that counsel “amend” the agreement to
reflect the revised transfer date or advise the Department of Corrections
to delay the transfer until after June 27, 2022. Id.
8
On May 11, 2022, Kinard wrote a letter to a counselor at Sussex II. [Pl.’s
May 11, 2022 Letter,] ECF No. 32-3; [May 11, 2022 Email,] ECF
No. 52-1, at 3. In the letter, [Plaintiff] asked the counselor to ask another
prison staff member to notify defense counsel:
[T]o please make a telephone call up here to speak with me
to avoid the previous settlement agreement (I was so
generous about resolving) being “void in ab initio” as it was
signed under coercion and extreme duress as I was
compelled to sign it in the face especially of lack of mental
health treatment relating to my diagnosed but untreated
PTSD, schizophrenia, and impulse disorder . . . .
[Pl.’s May 11, 2022 Letter at 1]; see [First April 29, 2022 Email,]
ECF No. 43-3 [at 1] (referencing the prison staff member’s name
in the email forwarding the first draft settlement agreement).
Defense counsel received [Plaintiff’s] written communication by
email from a paralegal in the Office of the Attorney General,
Correctional Litigation Section, on May 11, 2022, at 10:53 a.m.
[May 11, 2022 Email] ECF No. 52-1 [at 3]; see id. at 3–4
(paralegal’s email forwarding communication to counsel).
A date stamp reflects that on May 12, 2022, the Office of the
Attorney General received [Plaintiff’s] May 5, 2022 letter . . . .
[Pl.’s May 5, 2022 Letter,] ECF No. 32-4. Defense counsel
responded to [Plaintiff] by letter on May 18, 2022. [Def.’s May 18,
2022 Letter,] ECF No. 32-5, at 1; see id. (attributing delayed
response to being “out of the office with COVID”). In the letter,
defense counsel first apologized and attributed any confusion to
the fact that plaintiff must have been given the first draft
proposed agreement, instead of the second draft that she
prepared during the call and sent by email afterward. Id. at 1.
Defense counsel acknowledged that, during the April 29, 2022
call, they had discussed delaying [Plaintiff’s] transfer from Sussex
II to Sussex I until after he received a television about June 20,
2022. Id. She also acknowledged [Plaintiff’s] May 5th request to
further delay the transfer until after his late June 2022 birthday.
Id. Counsel wrote that she was willing to postpone [Plaintiff’s]
transfer from Sussex II to Sussex I “within ten . . . working days
of June 27, 2022.” Id. To effectuate this change, defense counsel
sent [Plaintiff] an unsigned addendum addressing the new timing
for [Plaintiff’s] transfer (as well as a copy of the prior signed
agreement). Id. at 1–5. To avoid “any further accidents or
9
miscommunications,” counsel sent the letter and enclosures
directly to [Plaintiff] and requested that he sign and return the
proposed addendum. Id. at 1. Counsel further advised that, upon
receiving the signed addendum from [Plaintiff], she would
“provide [him] with executed copies of all documents to effectuate
the settlement agreement.” Id.
[Plaintiff] testified that he received defense counsel’s May 18,
2022 letter and enclosures, including the proposed addendum.
[see Tr. at 23–24, ECF No. 56]. He testified, however, that he
declined to sign the proposed addendum because he had not
received his television and because defense counsel made other
promises not contained in the agreement. [See id. at 24;] [s]ee also
[Reply Def.’s Suppl. Resp.,] ECF No. 46, at 1.
By letter dated June 8, 2022, Kinard advised defense counsel
that, “[d]ue to unforeseen circumstances, [he was] going to
suspend our settlement agreement until further notice.” [Pl.’s
June 8, 2022 Letter,] ECF No. 43-5, at 1.
Id. at 3–7 (internal numbering and footnotes omitted). This factual background is
fully supported by the documents in the record and the testimony at the evidentiary
hearing, and Plaintiff has made no objection thereto.
Applying Virginia contract law, Magistrate Judge Krask found that the parties
had agreed to settle and that the terms of the settlement were set forth in the
Settlement Agreement that was signed by Plaintiff on May 4, 2022, and by defense
counsel on May 5, 2022. The Settlement Agreement states:
This Agreement is entered into by the parties, Plaintiff (pro se) Jordan
Jason [sic] Kinard, #1182772, and all named Defendants, in their
individual and official capacities, by counsel, and is for the purpose of
settling all claims in Kinard v. Williams (2:20cv126); Kinard v.
Vandermark, et al, (2:22cv143); Kinard v. Mitchen (2:22cv55); and
Kinard v. Critton (2:20cv125) as well as all allegations related to events
on May 7, 2021. This agreement was entered into during a settlement
call on April 29, 2022, and resolves all claims and attendant relief.
The parties agree as follows:
10
1.
Without admitting liability, the Virginia Department
of Corrections (“VDOC") agrees to transfer Plaintiff
from Sussex II State Prison to Sussex I State Prison
(“Sussex I”) and to provide Plaintiff with a job within
15 working days of the date of execution of this
Agreement by both parties. Once at Sussex I, Plaintiff
will comply with the rules and regulations of VDOC
and Sussex I in order to keep his job and remain at
Sussex I.
2.
A “working day” is defined as weekdays, Monday
through Friday, except official state holidays.
3.
Plaintiff will remain responsible for paying any
remaining unpaid balance of his filing fees to the
courts.
4.
Upon execution of this Agreement, counsel for
Defendant, acting on behalf of the Defendant and the
pro se Plaintiff, shall [file] a Joint Motion to Dismiss
with Prejudice in the United States District Court for
the Eastern District of Virginia, on behalf of all parties,
for voluntary dismissal of Kinard v. Williams
(2:20cv126). The undersigned counsel shall draft the
appropriate documents as necessary in the other cases
addressed by this Agreement.
5.
Plaintiff and Defendants voluntarily enter into this
Agreement. No promises have been made by, or to,
either Plaintiff or Defendant, except as explicitly
stated herein. This Agreement settles all claims set
forth in the above referenced lawsuits as well as May 7,
2021, and all claims arising out of the same facts.
Plaintiff and Defendant do hereby release and forever
discharge each other from all claims and demands
whatsoever relating to this lawsuit, except for any and
all claims and demands relating to enforcement of this
Agreement.
6.
Plaintiff acknowledges that counsel for Defendants
does not represent Plaintiff and has not, and cannot,
provide Plaintiff with any legal advice. Plaintiff
represents and is acting in accordance with his own
interests.
11
7.
This is the entire agreement between Plaintiff and the
Defendant.
Settlement Agreement at 1–2, ECF No. 50 at 14–15. Magistrate Judge Krask found
that this agreement “constitutes the only settlement reached among the parties” and
that neither the parties’ pre-settlement nor post-settlement discussions created any
enforceable obligations between the parties. R&R at 18.
B.
Pre-settlement Discussions
Plaintiff objects to Magistrate Judge Krask’s determination that the parties’
pre-agreement discussions did not create any other contractual obligations between
the parties. Obj. R&R at 6–7 (Plaintiff asserting that “[t]he events preceding the
signed [agreement] CAN be used to vary the terms of the settlement”); see R&R
at 18–22 (explaining that the parol evidence rule prohibits modification of the parties’
signed settlement agreement).
As courts have explained, “[i]n Virginia, no general rule seems to be better
settled than that, in controversies between two parties to a contract, parol evidence
of prior or contemporaneous oral negotiations or stipulations is inadmissible to vary,
contradict, add to, or explain the terms of complete, unambiguous, unconditional,
written instruments.” In re Brookland Park Plaza, LLC, No. 09-34495, 2009
WL 3297801, at *6 (Bankr. E.D. Va. Oct. 13, 2009) (quoting Walker v. Laberge Co., v.
First Nat. Bank of Boston, 146 S.E.2d 239, 243 (1966)). This is especially true, when,
as here, “the written agreement contains an integration or merger clause.” Id.; see
Settlement Agreement ¶¶ 5, 7 (merger clause providing that “[n]o promises have been
12
made by, or to, either Plaintiff or Defendant, except as explicitly stated herein,” and
that “[t]his is the entire agreement between Plaintiff and the Defendant”).
Here, the terms of the signed settlement agreement are unambiguous and
unconditional, and the agreement contains a merger clause. See Settlement
Agreement, ¶¶ 1–7. Thus, the Court may not consider any of the parties’ presettlement discussions in order to alter the plain terms of the agreement. Accordingly,
this objection is OVERRULED. 5
C.
Post-Settlement Discussions
Plaintiff objects to the determination that the events that followed the
execution of the Settlement Agreement did not create a separate contract or
obligation between the parties. Obj. R&R at 7; see R&R at 22–24. Plaintiff appears to
claim that the May 18, 2022 addendum created an “obligation and contract,” which
was then breached by Defendant. See Obj. R&R at 7. Plaintiff is incorrect. As recited
above, Plaintiff received two versions of a settlement agreement, one that included
additional terms that the parties discussed during the April 29, 2022 telephone call
(i.e., the second draft), and one version that did not include those terms (i.e., the first
draft). See R&R at 4–5; Tr. at 18–19 (Plaintiff testifying that he received both drafts
5 Plaintiff also takes issue with the fact that defense counsel “fil[ed] a joint
motion to dismiss not requiring [Plaintiff’s] signature.” Obj. R&R at 6, ECF No. 54.
The Settlement Agreement, however, explicitly states that: “Upon execution of this
Agreement, counsel for Defendant, acting on behalf of the Defendant and the pro se
Plaintiff, shall [file] a Joint Motion to Dismiss with Prejudice in the United States
District Court for the Eastern District of Virginia, on behalf of all parties.” Though it
is unclear, to the extent Plaintiff seeks to object to any portion of the R&R on this
basis, such objection is OVERRULED.
13
of the agreement). Plaintiff signed the first draft and refused to sign the second draft.
Tr. at 18–19.
After Plaintiff sent the signed Settlement Agreement to defense counsel, he
sent a letter dated May 5, 2022, seeking to modify that agreement to include the
terms that had been added via the second draft agreement (i.e., the agreement that
Plaintiff had rejected in favor of the first draft agreement). See Pl.’s May 5, 2022
Letter, ECF No. 32-4. As Magistrate Judge Krask explained:
This letter constituted an offer. Such an offer, however, was revocable
at any time before assent was given and before anything was done in
reliance, J.B. Colt Co. v. Elam, 120 S.E. 857, 858 (Va. 1924), so long as
withdrawal of the offer was communicated to the offeree before
acceptance. See Chang v. First Colonial Sav. Bank, 410 S.E.2d 928,
930–31 (Va. 1991); see also Chittum v. Potter, 219 S.E.2d 859, 864
(Va. 1975) (holding that telephoning a party that a letter containing
termination of all negotiations would be arriving was sufficient
communication to constitute revocation of an offer).
R&R at 23; see also Howell v. Kelly Servs., Inc., No. 1:12cv821, 2015 WL 2070348, at
*3 (E.D. Va. May 1, 2015) (noting that revocation of an offer requires “communication
of the revocation before acceptance of the offer”).
Here, Plaintiff revoked his offer to modify the Settlement Agreement in his
May 11, 2022 letter to defense counsel wherein Plaintiff stated that he wished to
“avoid the previous settlement agreement” and that the agreement was “void ab
initio.” Pl.’s May 11, 2022 Letter at 1. Defense counsel received the May 11, 2022
letter revoking the offer that same day. See Sessoms Aff., ECF No. 52-1 at 1–2;
May 11, 2022 Email, ECF No. 52-1 at 3–4. Thus, on May 12, 2022, when defense
counsel received Plaintiff’s May 5, 2022 letter extending the offer to modify the signed
Settlement Agreement, there was no longer any pending offer to accept. See Howell,
14
2015 WL 2070348, at *3 (“An offer becomes inoperative if it is not accepted before it
has been withdrawn.” (quoting Chittum, 219 S.E.2d at 864)).
Although there was no longer any pending offer to accept at the time defense
counsel received Plaintiff’s May 5, 2022 letter, she nevertheless prepared an
addendum that would have incorporated into the Settlement Agreement the terms
Plaintiff sought to add. See Tr. at 65; Addendum, ECF No. 50 at 12–13. Plaintiff,
however, refused to sign the addendum. See Tr. at 24. Thus, to the extent that the
May 18, 2022 addendum was itself on offer from Defendant to modify the Settlement
Agreement, Plaintiff rejected that offer when he refused to sign the addendum.
Therefore, the signed Settlement Agreement remains the only agreement between
the parties, and Plaintiff’s objection is OVERRULED.
D.
Denial of Plaintiff’s Motion to Void
the Settlement Agreement
Plaintiff also objects to Magistrate Judge Krask’s recommendation that
Plaintiff’s request to void the settlement agreement be denied. Obj. R&R at 7. In
support of his request to void the settlement, Plaintiff claims that there existed an
“off the record deal” where Plaintiff was promised a specific job. Id. at 7–8; see also,
Mot. Void Settlement at 2, ECF No. 34 (Plaintiff claiming that the parties agreed that
Plaintiff would be given a specific type of job); Tr. at 24 (Plaintiff claiming that “there
were other under-the-table promises that were promised to [him] that [defense
counsel] did not add into the Settlement Agreement”). Plaintiff also asserts that
defense counsel “was in a hurry to close the matter and asked that the Plaintiff . . .
settle informally then [the parties] would go back and amend the settlement ‘until
15
[they] got it right.’” R. 59(e) Mot. at 2–3; see also Obj. R&R at 2–3 (Plaintiff reiterating
these claims); Tr. at 32–33 (same).
Plaintiff further claims that the agreement should be declared void because
defense counsel fraudulently induced Plaintiff to sign the agreement by falsely
promising Plaintiff that they would amend the agreement later. See Obj. R&R at 6
(Plaintiff accusing defense counsel of being untruthful in denying the existence of “off
the record settlement terms”); see also id. at 7 (Plaintiff again referencing the alleged
“off the record deal,” and claiming that he was “taken advantage of by counsel”).
Plaintiff also accuses defense counsel of “deception” for filing the signed Settlement
Agreement without Plaintiff’s signature, and alleges that counsel’s “actions and
inactions constituted extrinsic fraud.” Id. at 8; see also id. (accusing defense counsel
of “obscurence [sic] and misrepresentation of the facts”).
Magistrate Judge Krask found that Plaintiff’s “claims are neither credible nor
consistent” with the parties’ written agreement. R&R at 25; see also id. at 29
(rejecting as “not credible [Plaintiff’s] assertion that defense counsel fraudulently
induced him to sign the contract[] with false promises to revise in the future as
needed” and finding that “[w]ithout a plausible allegation of any kind of fraud that
induced him to enter into the settlement contract, [P]laintiff’s claim that the contract
is void is without merit”). The Court has carefully reviewed the record in this case,
including the transcripts of the evidentiary hearing. See Tr., ECF No. 56. Upon such
review, the Court finds that the record fully supports Magistrate Judge Krask’s
findings and credibility determinations.
16
Because the record supports Magistrate Judge Krask’s findings and credibility
determinations, Plaintiff’s aforementioned objections are OVERRULED.
E.
Breach of the Settlement Agreement
In addition to arguing that the Settlement Agreement was void, Plaintiff
alternatively claimed that prison officials breached the agreement by providing him
with the wrong kind of job and by retaliating against Plaintiff by filing false
disciplinary charges against him. See R&R at 26 (recounting Plaintiff’s claims in this
regard). Magistrate Judge Krask determined that Plaintiff was prohibited from
seeking to enforce the agreement because it was Plaintiff who “first breached a
material term of the agreement” shortly after his transfer to Sussex I. R&R at 28
(noting that “(u)nder Virginia law, a party who first materially breaches a contract
cannot enforce that contract” (citing Horton v. Horton, 487 S.E.2d 200, 203-04 (Va.
1997))).
Plaintiff objects to Magistrate Judge Krask’s determination that Plaintiff first
breached the agreement. See Obj. R&R at 8. It appears that Plaintiff claims that this
finding was “without factual basis.” Id. Contrary to Plaintiff’s assertion, the record
fully supports this finding.
The parties agreed that Plaintiff would be transferred from Sussex II to Sussex
I and would be given a job. Settlement Agreement ¶ 1, ECF No. 50 at 14. The parties’
agreement contains an explicit term stating that “Plaintiff will comply with the rules
and regulations of VDOC and Sussex I in order to keep his job and remain at Sussex
I.” Id. Plaintiff was transferred to Sussex I on June 14, 2022. See Cabell Aff. ¶ 3, ECF
No. 32-1; Tr. at 28 (Plaintiff acknowledging that he was transferred from Sussex II
17
to Sussex I). Plaintiff was given a job, which he began on June 27, 2022. See Cabell
Aff ¶ 4; Tr. at 75 (Former Warden Beth Cabell testifying regarding Plaintiff’s job and
the duties the job entailed); Def.’s Ex 1, ECF No. 50 at 21–27 (prison pay records
indicating, among other things, Plaintiff’s job title, pay rate, and hours worked from
June to December of 2022); see also Mot. Void. Settlement at 2 (Plaintiff complaining
about the type of job he was given and the number of hours he was to work); Tr. at 29
(Plaintiff acknowledging that he received a job at Sussex I).
On June 26, 2022, shortly after Plaintiff was transferred to Sussex I, he
received two disciplinary infractions. See Tr. at 77–79 (Warden Cabell testifying
about an infraction Plaintiff received on June 26, 2022, for vulgar and insolent
language, and an infraction Plaintiff received on August 23, 2022, for possession of
tobacco products); see also Def.’s Exs. 2&3, ECF No. 50 at 28–49 (prison disciplinary
records relating to these incidents). Plaintiff subsequently received several more
infractions, which ultimately resulted in Plaintiff being transferred to Wallens Ridge
State Prison. See Tr. at 80–89 (Warden Cabell’s testimony regarding Plaintiff’s other
disciplinary infractions and transfer); Def.’s Exs. 4–8 (prison disciplinary records
relating to the additional offenses); Def.’s Ex. 9 (record from the prison housing
authority approving Plaintiff’s transfer based upon guilty findings for eight
disciplinary charges in the preceding six months).
Under the plain language of the parties’ agreement, Plaintiff was obligated to
remain of good behavior in order to keep his job and to remain at Sussex I, and
Plaintiff failed to do so. Although Plaintiff claimed that the disciplinary infractions
18
were “false and specious,” Magistrate Judge Krask rejected those contentions. 6 See
R&R at 27–28 (noting that the “evidence weighs heavily against” Plaintiff on this
point, and that Plaintiff’s filings and testimony failed to support his allegations of
false or retaliatory disciplinary charges).
The Court has carefully reviewed the record, including the transcripts of the
evidentiary hearing and the records of Plaintiff’s disciplinary charges. See Tr.
at 77–87 (Warden Cabell’s testimony regarding Plaintiff’s disciplinary infractions);
id. at 69–71 (Plaintiff claiming that the charges were “bogus”); Def.’s Exs. 2–9, ECF
No. 50 at 28–89. Upon such review, the Court finds that the record fully supports
Magistrate Judge Krask’s findings and credibility determinations. Accordingly,
Plaintiff’s objection to Magistrate Judge Krask’s determination that Plaintiff first
breached the agreement is OVERRULED. 7
6 Though it is unclear, Plaintiff appears to also raise an objection to Magistrate
Judge Krask’s decision overruling Plaintiff’s objection to the admissibility of certain
disciplinary records at the evidentiary hearing. See Obj. R&R at 5 (Plaintiff stating
that he “objected to the disciplinary exhibits as irrelevant”); Tr. at 84 (Plaintiff stating
that “there is an objection to all of these disciplinary actions on the grounds of
relevance”). “A Magistrate Judge's evidentiary ruling is reviewed for an abuse of
discretion.” Virgin Enterprises Ltd. v. Virgin Cuts, Inc., 149 F. Supp. 2d 220, 226 (E.D.
Va. 2000) (citing Benedi v. McNeil–P.P.C, Inc., 66 F.3d 1378, 1383 (4th Cir.1995)).
Here, the disciplinary records, which cover only the time period that Plaintiff was at
Sussex I, were clearly relevant to determining whether or not Plaintiff breached the
Settlement Agreement by failing to remain of good behavior. Thus, Magistrate Judge
Krask’s decision to allow the records in evidence was not an abuse of discretion, and
Plaintiff’s objection is OVERRULED.
7 The Court notes that in his objections to the R&R, Plaintiff claims that he
was not permitted or was unable to introduce certain evidence at the March 27, 2024
evidentiary hearing due to “lack of adequate notice.” Obj. R&R at 5; see id. at 9. From
what the Court can gather, it appears that Plaintiff wanted to summon a witness and
to present emails that support his claims that he was promised a specific job. See Obj.
R&R at 5, 9. Plaintiff, however, does not clearly explain how such evidence would
19
V.
Conclusion
For the reasons set forth above, the Court OVERRULES Plaintiff’s objections
to the R&R; ACCEPTS Magistrate Judge Krask’s findings of fact and conclusions of
law; and ADOPTS the recommendations set forth therein, with the exception that
the Court will retain jurisdiction over this matter for the sole purpose of enforcing
the terms of the Settlement Agreement, if necessary.
Accordingly, Plaintiff’s Rule 59(e) Motion, ECF No. 31, is GRANTED; and the
Court’s June 23, 2022 Dismissal Order and Judgment are VACATED. Further,
having found that the parties entered into an enforceable agreement to settle this
matter, Defendant’s reinstated Motion to Dismiss, ECF No. 27, is GRANTED; and
Plaintiff’s Motion to Void Settlement, ECF No. 34, is DENIED. This matter is
DISMISSED; however, the Court retains jurisdiction for the sole purpose of
enforcing the terms of the Settlement Agreement, if necessary. 8
have supported his arguments at the hearing. See id. To the extent that Plaintiff
intends to raise an objection to any of Magistrate Judge Krask’s proposed findings
and recommendations on this basis, the Court finds that any such objection lacks the
requisite specificity to warrant de novo review. See Reid v. North Carolina, 837 F.
Supp. 2d 554, 557 (W.D.N.C. 2011) (explaining that “de novo review is not required
. . . ‘when a party makes general or conclusory objections that do not direct the court
to a specific error in the magistrate judge's proposed findings and recommendations”’
(quoting Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982))), aff’d, 471 F. App'x 188
(4th Cir. 2012). Accordingly, any intended objection regarding Plaintiff’s claimed
inability to present evidence is OVERRULED.
8 The Court notes that the Settlement Agreement contemplates the dismissal
of several other specifically listed actions—Kinard v. Vandermark, No. 2:22cv143;
Kinard v. Mitchen, No. 2:22cv55; and Kinard v. Critton, 2:20cv125—as well as any
other claims relating to events on May 7, 2021, see Kinard v. Leary-Williams,
No. 2:22cv187. Settlement Agreement at 1, ECF No. 50 at 14–15.
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Plaintiff may appeal from this Final Order by forwarding a written notice of
appeal to the Clerk of the United States District Court, United States Courthouse,
600 Granby Street, Norfolk, Virginia 23510. The written notice must be received by
the Clerk within thirty days of the date of entry of this Dismissal Order. If Plaintiff
wishes to proceed in forma pauperis on appeal, the application to proceed in forma
pauperis shall be submitted to the Clerk of the United States Court of Appeals,
Fourth Circuit, 1100 E. Main Street, Richmond, Virginia 23219.
The Clerk is DIRECTED to please send a copy of this Final Order to Plaintiff
Jordan Joseph Kinard and to counsel for Defendant.
IT IS SO ORDERED.
/s/
Arenda L. Wright Allen
United States District Judge
Norfolk, Virginia
January 27, 2025
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