Trapp v. Fahey et al
Filing
18
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 7/10/11. Copy sent: Yes(tdai, )
IN
THE
UNITED
FOR THE
STATES
DISTRICT
EASTERN DISTRICT
COURT
OF VIRGINIA
Richmond Division
MICHAEL D.
TRAPP,
SR.,
Plaintiff,
v.
Civil Action No.
HELEN F.
FAHEY,
et
3:10CV134
al.,
Defendants.
MEMORANDUM OPINION
Michael
U.S.C.
§
evaluation
D.
1983
Trapp,
Sr.,
action.
pursuant
a
The
to
28
Virginia
matter
U.S.C.
inmate,
is
§§
before
The
Magistrate
PROCEDURAL
Judge
made
the
1915(e)(2)
Jurisdiction is appropriate pursuant to 28 U.S.C.
I.
brings
§
this
Court
and
1343(a)(3).
HISTORY
the
following
findings
Preliminary Review
This Court must dismiss any action filed by a
prisoner if the Court determines the action
(1)
"is
frivolous" or (2) "fails to state a claim on which relief
may be granted."
28 U.S.C. § 1915 (e) (2); see 28 U.S.C.
§ 1915A.
The first standard includes claims based upon
wvan indisputably meritless legal theory,'" or claims
where the "'factual contentions are clearly baseless.7"
Clav v. Yates,
809 F. Supp. 417, 427
(E.D. Va.
1992)
(quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).
The second standard is the familiar standard for a motion
to dismiss under Fed. R. Civ. P. 12(b)(6).
to
dismiss
for
1915A.
recommendations:
"A motion
42
under Rule
12(b)(6)
tests
the
sufficiency of a complaint;
importantly,
it does not
resolve contests surrounding the facts, the merits of a
claim, or the applicability of defenses."
Republican
Party of N.C. v. Martin,
980 F.2d 943,
952
(4th Cir.
1992)
(citing 5A Charles A. Wright & Arthur R. Miller,
and
Federal Practice and Procedure
§
1356
(1990)).
In
considering a motion to dismiss for failure to state a
claim, a plaintiff's well-pleaded allegations are taken
as true and the complaint is viewed in the light most
favorable
to
the
plaintiff.
MyIan
Labs..
Inc.
v.
Matkari.
7 F.3d 1130,
1134
(4th Cir.
1993); see also
Martin, 980 F.2d at 952.
This principle only applies to
factual allegations, however, and "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." Ashcroft v. Icrbal, 129 S. Ct. 1937, 1950 (2009).
The Federal Rules of Civil Procedure "require[] only
'a short and plain statement of the claim showing that
the pleader is entitled to relief, ' in order to *give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests. '"
Bell Atl.
Corp.
v.
Twombly, 550 U.S. 544, 555 (2007)
(second alteration in
original)
(quoting
(1957)).
Plaintiffs
Conlev
v.
cannot
Gibson,
355
satisfy this
U.S.
41,
47
standard with
complaints containing only "labels and conclusions" or a
"formulaic recitation of the elements of a cause of
action."
Bell Atlantic Corp., 550 U.S. at 555 (citations
omitted).
Instead,
a
plaintiff
must
allege
facts
sufficient
"to
raise
a
right
to
relief
above
the
speculative level," id.
(citation omitted),
stating a
claim that is "plausible on its face," id. at 570, rather
than
merely
"conceivable."
plausibility
when
the
Id.
plaintiff
"A
claim
pleads
has
factual
facial
content
that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged."
Iqbal,
129
S.
Ct.
at
1949
(citing- Bell
Atl.
Corp. ,
550
U.S.
at 556) .
Therefore,
in order for a claim or
complaint to survive dismissal for failure to state a
claim, the plaintiff must "allege facts sufficient to
state all the elements of [his or] her claim."
Bass v.
E.I. Dupont de Nemours & Co., 324 F.3d 761, 765 (4th Cir.
2003)
213
270,
(citing Dickson v.
(4th
281
Cir.
2002);
(4th
Microsoft
Corp.,
F.2d 1147,
1151
F.3d
193,
Iodice v. United States, 289 F.3d
2002)).
Lastly,
while the Court
Cir.
liberally construes pro se complaints,
574
309
(4th Cir.
1978),
Gordon v.
it
does
not
Leeke,
act as
the inmate's advocate, sua sponte developing statutory
and constitutional claims the inmate failed to clearly
raise
on
the
face
of
his
complaint.
See
Brock v.
Carroll,
107
concurring);
1278
F.3d 241,
243
Beaudett v.
(4th Cir.
1985).
(4th Cir.
1997)
City of Hampton,
(Luttig,
775
J.,
F.2d 1274,
Summary of Allegations
Trapp
violation.
appeared
parole
is
incarcerated
(Compl.
before
3.)
On
the
The
review.
Virginia
VPB
and Claims
for
a
1997
October
Parole
determined
8,
probation
2009,
Board
that
Trapp
("VPB")
Trapp
was
for
not
suitable for release on parole.
(Compl. Ex. A.)
The VPB
stated in writing its reason for denying parole:
"Prior
failure(s)
under
community
supervision,
therefore,
unlikely to comply with conditions of parole."
(Compl.
Ex.
A.)
On December
11,
2 009
Trapp
requested
to
know what
information was provided by the institution to the VPB.
(Compl.
Ex.
D2.)
An
institutional
representative
responded
to Trapp,
explaining
information must be approved by
that
such release of
"Mr. Martin" who would
return to work on December 21, 2009.
(Compl. Ex. D2.)
Trapp appealed to the VPB the denial of his parole
release.1
(Compl. Ex. F.)
Trapp raises three claims:
Claim A
Defendants
violated
" [c]onstitutional
Trapp's
to
Due
and
Equal
Protection,
by
to afford
[Trapp's]
parole
Process
failing
eligibility
review
and
a
right
fully
comprehensive
(Compl.
evaluation."
4.)2
Claim B
Defendants
"statutory
violated
right
consideration"
to
when
"failed to conduct
8,
2009]
requirements
(Compl. 4.)
1
Trapp
provided
appeal
cover
sheets,
Attachment,"
and
"See
Grounds for Appeal."
however,
the
Court
which
(Compl.
Exs.
in
statutory
policy's
Attachments
October
interview
with
and
parole
Defendants
[Trapp's
parole
accordance
Trapp7s
fair
with
merely
[sic]."
copies
state,
outlining
B,
F.)
of
the
"See
supporting
Trapp failed,
to submit a copy of the substance of his appeal.
2
Trapp uses the phrase "parole eligibility," but
he actually complains about the denial of his release on
parole.
Claim C
w[Trapp's]
on
the
parole
statutory
[Trapp]
liable,
denial
was
based
offense
for
which
had been found criminally
instead of and assembly of
accurate and sufficient Educational,
Rehabilitative,
(Compl.
and Sentence Data."
4.)
Trapp requests an award amounting to two million dollars
for emotional distress, pain, and suffering.
Trapp also
requests that the VPB reconsider him for parole release,
taking
into
consideration
his
"Educaitional
[sic],
Rehabilitative,
and
Sentence
Data
as
Outlined
by
Statutory
Parole
Decision
Factors
as
well
as
Institutional
Adjustment
factors
during
Plaintiff's
twelve (12) year Federal Sentence."
(Compl. 4.)
Analysis
In
order
to
state
a
viable
claim
under
42
U.S.C.
§ 1983, a plaintiff must allege facts that indicate a
person acting under color of state law deprived him or
her of a constitutional right or of a right conferred by
a law of the United States.
See Dowe v. Total Action
Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th
Cir. 1998).
As explained below, Trapp fails to allege
how the VPB deprived him of a constitutional right or a
right conferred by a law of the United States.
A.
Claim A:
Due Process Claim
Trapp claims that he was denied due process because
the VPB failed "to afford [Trapp's] parole eligibility a
fully comprehensive review and evaluation."
(Compl. 4.)
As a Virginia inmate, Trapp's limited liberty interest in
his parole release determination at most entitles him to
a written reason explaining why he was denied parole.
See Vann v. Angelone, 73 F.3d 519, 522 (4th Cir. 1996);
Franklin v. Shields, 569 F.2d 784, 797 (4th Cir. 1977)
(en
bane);
Burnette
4279403,
at
Circuit
has
repeatedly
*8
v.
(E.D.
examined
held
that
Fahey,
Va.
Oct.
the
it
No.
25,
3:10cv70,
2010)
[statutory]
does
not
("The
2010
Fourth
language
create
a
WL
and
liberty
interest in parole release."
(alteration in original)
(internal quotation marks and citation omitted)).3 Trapp
3 "Virginia courts have made clear that the Virginia
'given absolute discretion in matters of
Parole Board is
acknowledges
that he
received all
the
4279403,
*8.
Trapp's
at
was
due.
also
it
Thus,
Burnette,
is
Trapp
2010
RECOMMENDED
WL
that
claim be DISMISSED.
Claim A:
Trapp
he
Accordingly,
due process
B.
received such notice.
process
Equal
Protection Claim
complains
that
the parole
procedure
violated his equal protection rights.4
(Compl.
4.)
Trapp fails to support this allegation with any facts
that suggest that the VPB has treated him differently
from any person similarly situated to him.
Kaine,
No.
3:08cv490,
Mar.
11,
2010)
551
(4th
Cir.
that Trapp's
C.
2010
WL
883807,
(citing Townes
2009)).
v.
Patterson v.
at
*7
557
Jarvis,
Accordingly,
it
(E.D.
F.3d
is
Va.
543,
RECOMMENDED
equal protection claim be DISMISSED.
Claim B:
Violation of
Statutory Requirements
In Claim B, Trapp complains that the VPB violated
Trapp's "statutory right to fair parole consideration"
when it "failed to conduct
[Trapp's October 8,
2009]
parole
interview
in
accordance
with
statutory
requirements
and
policy's
[sic]."
(Compl.
4.)
Trapp
does not otherwise elaborate on this claim or provide the
statutory authority
on which he
relies.
Moreover,
Trapp's assertion that the VPB failed to abide by state
law does not give rise to a federal claim.
Any "alleged
deviation involves at most a state procedural requirement
that would be required to be enforced in the Virginia
courts,
under Virginia law."
Burnette,
2010 WL 4279403,
at *10 (citing Hill v. Jackson, 64 F.3d 163,
Cir. 1995); Riccio v. Cnty. of Fairfax, Va. ,
1459,
1469
("If
state
(4th Cir.
law
1990) ) ;
grants
abide
by
parole.'"
(E.D.
Va.
2005)
discretion
907 F.2d at 1469
procedural
rights
4
than the
a state's failure
the
F.
Garrett
v.
Supp.
when
Robinson.
due
368,
371
415
has
ruled that
upon
acting
863
2d
process
Commonwealth,
Court
"impinge []
Board
James v.
federal
3 66
This
not
a
F.
the
on
Supp.
the
absolute
parole
275,
277
1994).
"No State shall
jurisdiction
Const,
do
not
Fahey,
(1992)).
of
applications."
Va.
is
(quoting
247
regulations
(E.D.
law
Robinson v.
S.E.2d 245,
VPB's
that
(4th
F.2d
see Riccio,
more
Constitution would otherwise require,
to
171
907
amend.
the
equal
XIV7
§
1.
. . .
deny to any person within its
protection
of
the
laws."
U.S.
issue.") ; Swarthout v. Cooke, 131 S. Ct. 859, 863 (2011) .
Trapp fails to offer any facts which plausibly suggest
that
he
is
RECOMMENDED
D.
In
entitled
that
Claim C:
Claim
to
Claim B
C,
relief.
be
Failure
Trapp
Accordingly,
it
is
DISMISSED.
to
admits
Consider Various
that
the
VPB
Factors
denied
him
parole
because
he
had
previously
failed
community
supervision.
Trapp argues
that the VPB
should have
considered
other
factors,
such
as
"Educational,
Rehabilitative, and Sentence Data."5
(Compl. 4.)
The
United States Court of Appeals for the Fourth Circuit has
held that
"inmates are entitled to no more than minimal
procedure," Vann,
73 F.3d at 522, which requires only
that
the parole authority furnish to the prisoner a
"written statement of its reasons for denying parole."
Franklin,
at
*8.
569 F.2d at 797;
see Burnette,
"[W] here the denial of parole
2010 WL 4279403,
.
. . rests on one
constitutionally valid ground, the Board's consideration
of
an allegedly invalid ground would not violate a
constitutional right."
Bloodgood v. Garraghty, 783 F.2d
470,
475
{4th Cir.
1986) .
Denial based on previous
failure to adhere to community supervision is a valid
ground.
See, e.g., Fleming v. Murray, 888 F. Supp. 734,
736-37,
741 (E.D. Va. 1994).
Trapp has not shown that
the VPB violated any constitutionally protected interest.
Accordingly, it is RECOMMENDED that Claim C be DISMISSED.
(Apr.
11,
that
he
fourteen
2011 Report and Recommendation.)
could
(14)
file
days
objections
of
the
date
or
of
an
The Court advised Trapp
amended
entry
complaint
thereof.
Trapp
within
has
not
responded.
II.
"The magistrate
The
makes
recommendation
has
5
for
the
factors.
STANDARD
only a
no
OF
recommendation
presumptive
Trapp does not provide
proposition
that
REVIEW
the
to
this
weight,
court.
and
the Court with authority
VPB
must
consider
these
the
responsibility
court."
to
make
Estrada v.
(citing Mathews v.
a
final
Witkowski,
Weber,
determination
816 F.
423 U.S.
Supp.
261,
remains
408,
270-71
410
with
(D.S.C.
(1976)).
this
1993)
This Court
"shall make a de novo determination of those portions of the report
or
specified
objection
is
objections
proposed
made."
findings
28
to a magistrate's
focus attention on those
heart
of
the parties'
(1985).
of
U.S.C.
enables
and
Thomas v.
"The
to
which
filing
the district judge
legal-that
Arn,
474
are
U.S.
of
to
at
the
140,
147
This Court may adopt without de novo review any portion
Ins.
Co..
recommendation to which Petitioner does
objection.
416
There
being
no
Clerk will
28
AND
objections
be
ADOPTED,
DIRECTED
U.S.C.
§
to
and
(4th Cir.
2005).
and upon
review of
the
record and
the Report and Recommendation will
the
note
1915(g).
316
Colonial Life &
CONCLUSION
the Report and Recommendation,
ACCEPTED
See Diamond v.
F.3d 310,
III.
purposes
636(b)(l).
report
dispute."
not raise a specific
be
§
recommendations
issues-factual
the magistrate judge's
Accident
or
action
the
will
be
disposition of
DISMISSED.
the
action
The
for
The Clerk is DIRECTED to send a copy of the Memorandum Opinion
to
Trapp.
An appropriate Order will
issue.
/a/
Robert
E.
Payne
Senior United States District Judge
Date :
Richmond;
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