King v. Smith et al
Filing
48
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 9/2/2014. Copies as directed to King and counsel of record.(cmcc, )
IN THE UNITED
FOR THE
STATES DISTRICT
,£rMLJUn]
COURT
SEP - 22014 V)
EASTERN DISTRICT OF VIRGINIA
Richmond Division
CLERK, U.S. DISTRICT COUR1
RICHMOND.VA
JOE EDMOND KING,
Plaintiff,
v.
Civil Action No.
DAN SMITH,
3:12CV12
et al.,
Defendants.
MEMORANDUM OPINION
Joe
Edmond
King,
a
Virginia
detainee
currently
in
the
custody of the Department of Behavioral Health and Developmental
Services
("DBHDS"),
proceeding
pro
se
filed this 42 U.S.C. § 19831 complaint.
Court on:
Stewart,
(1)
III,
Behavioral
No. 30);
in
forma
pauperis,
The matter is before the
the Motion to Dismiss filed by Defendant James W.
the
Health
(2)
and
Commissioner
and
of
the
Developmental
Virginia
Services
Department
("DBHDS")
(ECF No. 23);
Defendants Sheriff
Dan Smith,
(3) the Motion to Dismiss filed by
Captain Darryl Smith,
Lt.
That statute provides, in pertinent part:
Every person who,
under color of any statute
. . . of any State . . . subjects, or causes to be
subjected, any citizen of the United States or other
person
within
the
jurisdiction
thereof
to
the
deprivation
of
any
rights,
privileges,
or
immunities
secured by the Constitution and laws, shall be liable
to the party injured in an action at law ....
§
(ECF
the Motion to Dismiss filed by Defendant Dr. Glenn
R. Miller, Jr.
42 U.S.C.
of
1983.
Keith
Bocock,
Sgt.
Johnson,
Deputy Eddie
Thompson,
(ECF
Elbert Cassady,
U.S.C.
Hancock,
and Steve Turner
No. 37);
§§
and
Sgt.
(4)
the
1915(e)(2)
&
Barry Vipperman,
Deputy Jason Handy,
Court's
evaluation
King
has
No. 41.)
For the reasons set forth below,
Defendant
Stewart's
Miller's
Motion to
Dismiss,
Deputy Sara
("Patrick County Jail Defendants")2
1915A.
Motion
Deputy Bobby
to
Dismiss,
to
responded.
28
(ECF
the Court will grant
will
will deny the
Defendants' Motions to Dismiss,
pursuant
grant
Defendant
Patrick County
Jail
and will summarily dismiss Claim
Two.
I.
KING'S
COMPLAINT
In his Particularized Complaint
the
following
allegations
with
("Complaint"),3 King makes
respect
to
the
remaining4
defendants:5
2 The Court
employs
the
spelling
of
Defendants'
names
provided in the Motion to Dismiss.
Because King's original complaint failed to provide each
defendant with fair notice of the facts and legal basis upon
which his or her liability rested, by Memorandum Order entered
24,
2012,
the Court directed
King to file a
on April
particularized complaint.
On May 9,
2012,
King filed a
Particularized
Complaint
(ECF
No.
8),
however,
the
Particularized
Complaint
only
marginally
improved
the
deficiencies of the original complaint.
4 The Court previously dismissed Defendant Ramona Baliles
from the action.
The
capitalization,
quotations
(ECF No. 44.)
Court
corrects
the
and
spelling,
and
from King's complaint.
spacing,
removes
punctuation,
emphasis
from
The Court believes "SVP"
in
(1). Mr. Joe King,
Plaintiff herein, an ex-felon in
the Commonwealth of Virginia, serving parole in
Virginia, was prosecuted pursuant to § 37.2-900
et. seq. of the Code as a SVP.
(2) . Mr. King was adjudicated to be a SVP pursuant
[to] § 37.2-900, by an order dated November 24,
2009.
Prior to being physically committed to the
"Department" he was considered for conditional
release as required by law.
(3). Pursuant
to
§
37.2-909(A): [6]
committed respondents:
committed pursuant
to
placed in
the custody
control,
care,
alterations,
for
or
ease
of
and treatment ..."
King's submissions is short
Because
King's
Complaint
alterations
Placement
". . . any respondent
this
Chapter
shall be
of
the
Department
for
of
omissions
for "Sexually Violent Predator."
contains
many
omissions
and
reference,
in
bold.
the
All
Court
notes
other
all
alterations appear in the Complaint.
6 Section 37.2-909(A) of the Virginia Code provides:
Any respondent committed pursuant to this chapter
shall be placed in the custody of [DBHDS] for control,
care,
and
treatment
until
such
time
as
the
respondent's
mental
abnormality
or
personality
disorder has so changed that the respondent will not
present an undue risk to public safety.
[DBHDS] shall
provide
such control,
care,
and treatment
at
a secure
facility operated by it or may contract with private
or public entities, in or outside of the Commonwealth,
or with other states to provide comparable control,
care,
or
treatment.
At
all
times,
respondents
committed for control, care, and treatment by [DBHDS]
pursuant to this chapter shall be kept in a secure
facility.
Respondents committed under this chapter
shall be segregated by sight and sound at all times
from prisoners
in the custody of a correctional
facility.
The Commissioner may make treatment and
management decisions regarding committed respondents
in his custody without obtaining prior approval of or
review by the committing court.
Va.
Code Ann.
§ 37.2-909(A)
(West 2013).
added
admissions
and
(5) . On 11-24-2009, Mr. King was granted conditional
release by the Circuit Court for Patrick County
pursuant [to] the provisions of § 37.2-912 and
§
37.2-913 of the Code.
(6). On
7-9-2010
Ramona
Baliles,
Parole
Officer,
signed a Petition for an Emergency Custody Order
accusing
Mr.
King
of
".
.
. violating
Sex
Offender Special Instructions F, L and U . . . ."
She did not accuse that Mr.
King violated any
criminal statute within the Code of Virginia.
(7). Pursuant
[to]
the
Emergency
Custody
Order
authorized
by
Magistrate
C.C.
(unknown)
in
Patrick County, Ramona Baliles commanded that Mr.
King [be arrested and], ". . . . must remain in
custody pending
[a]
hearing in
[the]
Circuit
Court . . . ."
See EXHIBIT A (7-9-2010 Emerg.
Custody Order).
(8) . Ramona Baliles ordered that Mr. King be taken to
the Patrick County Jail [after his arrest] for
evaluation
by
a
person
designated
by
the
D.B.H.D.S., the "Department."
(9) . On the Custody Order petitioned for by Ramona
Baliles, the command was/is, ". . . to deliver
[Mr. King] into the custody of the Department of
Behavioral Health and Developmental Services at
the following location (fill in) . . ." for the
[Va. Code Ann. § 37.2-913] evaluation . . . ."
The blank line on the form was filed in [by
Ramona Baliles]
instructing the Patrick County
Jail DEFENDANTS to keep Mr. King in their custody
[at the jail] pending a hearing in the Circuit
Court . . . , [instead of delivering [him] to the
"Department" or V.C.B.R. whose address is 4901
Patrick Henry Hwy., Burkeville, VA].
(10) . The Custody Order issued by the magistrate at
Ramona
Baliles's
request,
commanded
that
Mr.
King,
".
. . shall
the Department
be placed in the
custody of
..." (as defined in § 37.2-900 -
definitions).
(11) . As
a
result
of
the
custody
order
requested
by
Ramona Baliles, Mr. King, who violated no law and
committed no crime, was arrested and taken into
punitive
Jail
.
.
environment
.
of
the
Patrick
County
.
(12). On 7-8-10 Mr. King was in fact placed in punitive
Restraints
by
the
state
police,
like
a
common
criminal,
and
taken
to
[the]
Patrick County
Jail, where custody of Mr. King was given to and
taken by Captain Darryl Smith, who is known to
Mr. King as the Chief Jailer (at PCJ) and the
person in responsible charge of the jail, acting
for the Sheriff.
Captain Darrell Smith assigned
Mr. King to be held in general population with
dangerous
convicted felons
in violation of
state
law § 37.2-909(A).
(14) . Mr. King was detained illegally in the punitive
environment of the Patrick County Jail in general
population
violation
of
state
law
§
37-909(A)
from 7-9-2010 to 2-14-2011.
(15) . During
this
time
the
Commissioner
[of
the
Department] knew Mr. King was in his "custody"
and housed in the Patrick County Jail, illegally;
and, took no action to have him (1) transported
to
V.C.B.R.;
or
(2)
segregated
away
from
dangerous criminals in the jail as required by
§ 37.2-909(A) of the Code.
(16). Pursuant § 37.2-913 (B) Mr. King was supposed to
be transported to a secure [hospital] facility
specified
by
the
Department
where
a
person
designated
mental
by
health
the
Department
examination.
See
shall
§
perform
73.2-913 of
a
the
Code.
(17) . Dr.
Rex
Miller
was
designated
by
the
Commissioner/Department
and
he
came
to
the
Patrick County Jail where he observed Mr. King in
the
dangerous
punitive
environment
and
then
interrogated him under those conditions instead
of a proper clinical setting.
Mr.
King
was
not
read
his
rights
by
law
enforcement; was not charged with any crime; and,
was denied consultation with an attorney by Dr.
Rex Miller while he was acting as an agent for
the office of the Attorney General.
See § 37.2913(B).
(18). On November 1, 2010, in the Circuit Court for
Patrick County, Virginia, the Judge committed Mr.
King, " . . . to the custody of the DBHDS for
appropriate treatment and confinement in a secure
facility designated by the Commissioner of the
DBHDS
.
.
.
."
Mr. King's detainment at the Patrick County Jail
continued, illegally, in general population, from
11-1-2010
to
9-19-2011
before
he
was
taken
to the
VCBR in Burkeville, Virginia. . . .
(19) . The Patrick County Court further ordered that Mr.
King, ". . . shall have an annual review of his
civil
a.m.;
commitment on November 1,
and,
.
.
."
this
due
established by
statute law
2011,
at 9:00
process
right
. . . was
completely
ignored by the defendants herein.
(21) . During the time Mr. King spent in
environment of the Patrick County
told
by
"Jail
Captain
Barber,"
Darryl
and
cut
Smith
hair
he
of
the punitive
Jail he was
would
the
be
the
inmates
and
convicted prisoners in the jail.
(22) . . . . [N]ow the defendants had assigned him to
work with tools and in personal physical contact
with prisoners as he cut
hair which clearly
violated § 37-909(A) of the Code of Virginia.
(23) . The Patrick County Court's Order on 11-1-2010
further
stated
that,
".
.
. the
Commissioner
of
DBHDS shall provide a report to the Court, the
OAG, and Mr. King's attorney no later than sixty
(60) days prior to the hearing . . ." which was
ordered to be held on 11-1-2011 at
9 a.m.
.
.
.
(24). Sixty days prior to 11-1-2011 Mr. King asked
Therapist Ms. Short and VCBR Facility Director
Ms. Kimberly H, Runion about his progress report.
Pamela
Sargent,
with
OAG,
had
not
scheduled
transportation for the hearing that was ordered
by the Court; and, instructed Ms. Runion to not
do Mr. King's evaluation until Oct. 2012.
(Compl. at 1-4.)
The Court generously construes King to raise
the following claims for relief:
Claim One:
Defendant
Stewart
Amendment
due
violated
process
King's
rights7
by
Fourteenth
failing
to
transfer King from the Patrick County Jail to the
"No State shall . . . deprive any person of life, liberty,
or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws." U.S.
Const,
amend.
XIV,
§ 1.
custody of the Virginia Center for Behavioral
Rehabilitation
("VCBR")
and
housing
King
in
general population of the Patrick County Jail.
Claim Two:
Defendants
Captain
Darryl
Smith
and
Sheriff
Dan
Smith violated King's Fifth Amendment rights8 by
admitting King to the Patrick County Jail in
handcuffs and housing King in general population
in
violation
of
section
37.2-909(A)
of
the
Virginia Code.
Claim Three:
The
Patrick
County
Jail
King's due process rights
Defendants
violated
by housing King in
general population and failing to transfer King
from the Patrick County Jail to the custody of
the VCBR despite his repeated complaints.
Claim Four:
Defendant Captain Darryl Smith violated King's
due process rights by assigning King to work as a
barber,
placing
him contact
with
inmates
in
violation of section 37.2-909(A) of the Virginia
Code.
Claim Five:
Defendant
Miller
violated
King's
due
process
rights because he "knew it was illegal to detain
Mr.
King
in
a
jail/prison
general
population . . . but willfully allowed" King to
remain in the jail instead of transferring him to
the VCBR.
(Id.
at 6.)
8 The Fifth Amendment provides:
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in
the
land
or
naval
forces,
or
in
the
Militia,
when
in
actual service in time of War or public danger; nor
shall any person be subject for the same offence to be
twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against
himself,
nor
be
deprived
of
life,
liberty,
or
property,
without
due
process
of
law;
nor
shall
private property be taken for public use, without just
compensation.
U.S.
Const,
amend.
V.
Claim Six:
Defendant
Miller
violated
King's
due
process
rights when Defendant Miller "interrogated" King
when King "was not read his rights, . . . was not
charged
with
any
crime,
and
was
denied
consultation with an attorney . . . ."
(Id. at
3.)
For
the
reasons
stated
below,
Claims
One,
Two,
Five,
and
Six
about
the
will be dismissed with prejudice.
II.
Because of
PROCEDURAL HISTORY
King's
lack of
candor with the Court
reason for at least a portion of his detention,
the Court first
summarizes the procedural background leading to King's detention
as
provided by
record.
No.
(See
Defendant
Stewart's
31-1 through 31-6);
Cir.
(citation
2009)
court
may
from
prior
12(b)(6)
consider
state
motion"
Stewart
Mem.
and available
Supp.
Mot.
Walker v. Kelly,
omitted)
matters
court
and
of
Dismiss
proceedings
"without
that
record
in
Exs.
589 F.3d 127,
(explaining
public
from the public
to
ECF
139
(4th
"[a]
such
as
conjunction
having
1-6,
federal
documents
with
convert
a
Rule
the
Rule
12(b) (6) motion to one for summary judgment . . .") .
On
July
20,
("Circuit Court")
house with
twenty-five
1993,
Nos. CR92009665-00
Circuit
Court
for
Patrick
County
convicted King of rape and entering a dwelling
the intention
years
the
of
to
commit
a
incarceration.
and
CR92009667-00
8
rape
See
and sentenced him to
Commonwealth
(Va.
Cir.
Ct.
v.
King,
July
20,
1993).9
On November 24, 2009, the Circuit Court found King to be
an
but
SVP,
nonetheless
conditional
release,
involuntary
secure
pursuant
the
to
the
Cir.
accepted
Ct.
Sexually
on
incarceration
to
Id.
at
On
treatment
November
King's
the
King
was
release,
supervision
of
hospitalization
Virginia
No.
08-196,
The
plan,
and
to
Act,
2009).
release
for
and
Predator
24,
suitable
alternative
restrictive
Violent
conditional
restrictions
that
Commonwealth v. King,
entered
the
less
impatient
section 37.900 et seq.
(Va.
determined
released
Patrick
at
Circuit
added
1-6
Court
further
King
County
Code
from
probation.
2-6.
June
22,
2010,
police
arrested
King
in
Patrick County
and charged him with entering school property after a conviction
of
a
sexually violent
offense
on
May
19,
section 18.2-370.5 of the Virginia Code.10
Supp. Mot.
2010,
a
felony under
(See Stewart's Mem.
Dismiss Ex. 2, at 1-2.)
9 See http://www.courts.state.va.us (select "Case Status and
Information;" select "Circuit Court" from drop-down menu; select
hyperlink for "Case Information"; select "Patrick Circuit Court"
from drop-down menu and follow "Begin" button; type "King, Joe,"
and then follow "Search by Name" button; then follow hyperlink
for "CR92009665-00" and "CR92009667-00").
10
"Every adult
who
is
convicted
of
a sexually violent
offense . . . shall be prohibited from entering or being present
(i) during school hours . . . upon any property he knows or has
reason to know is a public or private elementary school or child
day center property . . . ."
Va. Code Ann. § 18.2-370.5 (A)
(West 2014).
On
July
Emergency
2010,
Custody
probation
violated
9,
Order
officer,
several
a
Patrick
based
Ramona
terms
of
County
upon
a
issued
petition
filed
by
stating
Baliles,
his
magistrate
that
King
conditional
release,
an
King's
had
including
entering school property during school hours or during hours of
school-related activity.
9, 2010,
1.)
(See id.
Ex.
3,
at
1-2.)
As
King was housed in the Patrick County Jail.
The Emergency Custody Order commanded that
of July
(See id. at
"ANY AUTHORIZED
OFFICER" take King into custody and transport him to the Patrick
County Jail where King "must remain in custody pending hearing
in Circuit Court."
(Id.)
On November 1, 2010,
his
King appeared in the Circuit Court for
conditional release violation hearing.
King,
No.
CL-08-196,
at
1-4
(Va.
Cir.
See Commonwealth v.
Ct.
Nov.
1,
2010).
The
Circuit Court found that King had violated the conditions of his
release,
revoked
was
his
no
longer
conditional
ordered that
King
for appropriate
"be
suitable
County Jail
Mem.
treatment and
November
1,
2010,
because
of
the
Supp. Mot.
at
committed to the
designated by the Commissioner
hearing on
conditional
Id.
release.
for
2.
. . . ."
was
pending
Dismiss 3; see id.
10
Circuit
custody of the
confinement
King
The
release,
and
Court
[DBHDS]
in a secure facility
(Id.)
Following the
returned to the
felony charge.
Ex. 2, at 1).
Patrick
(Stewart's
The
Circuit
Court
found
King
guilty
of
entering
school
property after having been adjudged a sexually violent offender,
and
on
February
two
years
and
28,
2011,
six
the Circuit
months
of
imprisonment
Virginia Department of Corrections
three months
of
of
the
incarceration
CR10019122-00,
On
that
King
three
at 1-2 (Va. Cir.
16,
could
be
2011,
released
September 19, 2011.
at 1.)
2011.
months.
to
custody
of
with two years and
leaving an
active
v.
term
King,
No.
Virginia
the
Parole
custody
Supp.
Board
of
VCBR
on
Dismiss Ex.
Mot.
the
ordered
6,
King moved into the custody of the VCBR on September 19,
(Compl. 3.)
Pursuant
STANDARD
OF REVIEW
to the Prison Litigation Reform Act
Court must dismiss any action filed by
determines
claim
the action
on
§ 1915(e)(2);
includes
which
see
claims
28
based
(1)
"is
relief
U.S.C.
upon
a prisoner if the
frivolous" or
may
§
H,an
be
("PLRA")
(2)
"fails to
granted."
1915A.
The
indisputably
28
first
baseless.'"
Clay
v.
(quoting Neitzke
Yates,
v.
809
F.
Williams,
11
Supp.
490
417,
U.S.
319,
327
Court
state
U.S.C.
meritless
427
this
standard
theory,'" or claims where the "'factual contentions are
1992)
to
Feb. 28, 2011).
(Stewart's Mem.
III.
a
the
Commonwealth
Ct.
the
sentenced King
in
("VDOC"),
sentence suspended,
of
September
Court
legal
clearly
(E.D.
Va.
(1989)).
The
second
standard
dismiss under Fed.
"A
motion
sufficiency
contests
is
R.
Civ.
to
of
a
the
familiar
P.
under
complaint;
the
Arthur R.
952
facts,
(4th Cir.
Miller,
Federal
Rule
a
motion
12(b) (6)
importantly,
applicability of defenses."
980 F.2d 943,
for
to
12(b)(6).
dismiss
surrounding
standard
the
it
merits
does
of
a
tests
not
1992)
resolve
claim,
Republican Party of N.C.
the
or
the
v. Martin,
(citing 5A Charles A. Wright &
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
plaintiff.
Cir.
in
Mylan Labs.,
1993);
applies
viewed
see
only
to
factual
a
identifying
pleadings
motion
are
Ashcroft v. Igbal,
The
Inc.
also Martin,
considering
conclusions,
the
not
light
most
v. Matkari,
980
F.2d
to
dismiss
that,
556 U.S.
to
662,
952.
however,
can
because
entitled
7 F.3d 1130,
at
allegations,
favorable
choose
they
the
are
This
to
the
1134
(4th
principle
and
"a
to
begin
no
assumption
court
more
of
by
than
truth."
679 (2009).
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,
(second alteration in original)
12
550 U.S.
544, 555
(quoting Conley v.
(2007)
Gibson,
355
U.S.
41,
47
with
complaints
"formulaic
Id.
(1957)).
Plaintiffs
containing
recitation
of
the
(citations omitted).
sufficient
level,"
"to
id.
raise
only
cannot
"labels
elements
Instead,
a
right
(citation
satisfy
and
of
this
standard
conclusions"
a
cause
of
or
action."
a plaintiff must allege facts
to
relief
omitted),
above
stating
the
a
speculative
claim
that
"plausible on its face," rather than merely "conceivable."
at
570.
pleads
"A
factual
reasonable
has
U.S.
at
plausibility
that
that
alleged."
550
facial
content
inference
misconduct
Corp.,
claim
allows
the
Igbal,
the
when
court
defendant
is
the
556 U.S.
at
678
in
order
is
Id.
plaintiff
to
draw
liable
Therefore,
556).
a
the
for
the
(citing Bell Atl.
for
a
claim
or
complaint to survive dismissal for failure to state a claim,
the
plaintiff
the
must
"allege
elements of
[his or]
&
F.3d
Co.,
324
Microsoft
United
Corp.,
States,
sufficient
her claim."
761,
309
289
facts
765
F.3d
F.3d
Bass v.
(4th
193,
270,
Cir.
213
281
to
E.I.
2003)
(4th
(4th
state
all
DuPont de Nemours
(citing
Cir.
2002);
Cir.
2002)).
Dickson
v.
Iodice
v.
Lastly,
while the Court liberally construes pro se complaints, Gordon v.
Leeke,
the
574
F.2d
inmate's
1147,
1151
advocate,
(4th Cir.
sua
sponte
1978),
it
does
developing
not act
statutory
as
and
constitutional claims the inmate failed to clearly raise on the
face of his complaint.
See Brock v. Carroll,
13
107
F.3d 241,
243
(4th
Cir.
Hampton,
1997)
(Luttig,
775 F.2d 1274,
J.,
1278
concurring);
(4th Cir.
IV.
Beaudett
v.
City
of
1985).
ANALYSIS
In order to state a viable claim under 42
U.S.C.
§ 1983,
a
plaintiff must allege that 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.
Action Against Poverty in Roanoke Valley,
Cir.
1998)
vicarious
(citing
liability
plaintiff must
through the
that
is
§ 1983).
inapplicable
Furthermore,
to
doctrine
550
of
v.
...
§
Total
658
(4th
"[b]ecause
1983
suits,
a
that each Government-official defendant,
Ashcroft
Gibbs,
Dowe
145 F.3d 653,
official's own individual actions,
v.
the
U.S.C.
[allege]
Constitution."
Vinnedge
42
See
v.
Igbal,
F.2d
926,
556
928
respondeat
has violated the
U.S.
(4th
662,
superior
is
(2009);
1977)
Cir.
676
(noting
inapplicable
to
§ 1983 actions).
King
committee,
generally
Defendants
County Jail,
2010
that
improperly
September
of
19,
the Virginia
as
an
detained
in general population,
through
37.2-909(A)
contends
SVP
him
from his
2011.
King
Code
required
and
in
a
the
civil
Patrick
arrest on July 8,
believes
that
Defendants
to
section
detain
King either in the VCBR or "segregated by sight and sound at all
14
times from prisoners in the custody of a correctional facility."
Va.
Code Ann.
A.
§ 37.2-909(A).
Defendant Stewart
In Claim One,
to due
King argues that
process when he
the punitive
failed to
environment
of
Stewart violated his right
have
the
King
Patrick
transferred out
County
Jail
of
into the
custody of the VCBR, in violation of Virginia Code section 37.2909(A).
The
Due
deprives
an
interest.
564,
Process
Clause
individual
of
See Bd.
569-70
a
applies
when
legitimate
government
liberty
of Regents of State Colls,
(1972).
Thus,
the
first
v.
step
or
action
property
Roth, 408 U.S.
in
analyzing
a
procedural due process claim is to identify whether the alleged
conduct
affects
a
Beverati v. Smith,
omitted).
itself,
protected
120
A liberty
F.3d 500,
502
interest may
or
property
(4th Cir.
1997)
interest.
(citations
arise
from the Constitution
or from state laws and policies.
Wilkinson v. Austin,
545 U.S. 209, 220-21 (2005)
King
interest
liberty
fails
in
to allege
being
(citations omitted).
that
detained
he
had a
somewhere
legitimate
other
than
liberty
general
population of the Patrick County Jail between his arrest for a
new felony charge on June 22,
2010 and his sentencing for his
conviction of that charge on February 28,
2011.
While King
alleges that he "violated no law and committed no crime,
15
[and]
was
arrested
and
taken
Patrick County Jail"
wholly
omits
proceedings
any
or
into
(Compl.
the
environment
of
2), King misstates the truth.
reference
his
punitive
to
his
lawful detention
in
concurrent
the
the
King
criminal
Patrick County Jail
for that felony charge and conviction.
Stewart
Complaint,
has
King
shown
was
that
at
detained
new criminal charge,
all
in the
times
relevant
Patrick County Jail
not as a civil detainee.
has demonstrated that,
on June 22,
to
2010,
the
for a
Defendant Stewart
police
arrested
King
for his commission of a new felony - entering school property as
a
sexually
violent
offender.
The
Magistrate
ordered
King
detained in the Patrick County Jail pending his criminal trial,
the Circuit Court convicted King of the offense,
King
to
an
active
February 28, 2011.
term
of
three
months
of
and sentenced
imprisonment
on
Nevertheless, King argues that he improperly
remained in the punitive environment until September 19, 2011.
Based on the public record,
King
would have
completed his
three-month active criminal sentence, at the latest, by May 28,
2011.
Thus,
Stewart
has
failed
to demonstrate
that
King's
detention in the Patrick County Jail after May 28, 2011, flowed
from
his criminal
civil commitment.
that
King
was
charge,
While
conviction,
and
Stewart's argument
detained
entirely
16
on
sentence,
and not a
fails to establish
criminal
charges,
nevertheless,
as
explained below,
King
failed to
state a claim
for relief against Stewart.
Stewart's alternative argument is that King fails to allege
facts that Stewart was personally involved in the deprivation of
King's constitutional rights.
that
Stewart,
housed
in
the
the
Stewart is correct.
Commissioner
Patrick
of
County
DBHDS,
Jail.
However,
action to remove him from the jail.
allege
in
that
the
Stewart bears
Patrick
County
any
fall
that
King's
Jail.
Stewart
knew
of
short
that
knowledge'"
vague
without
vague
the
in
the
Patrick
442
(4th Cir.
allegation
"factual
that
basis
defendant
to
no
support
had
the
and
conclusion
684 F.3d 435,
See Walters v. McMahen,
(holding
took
was
his detention
King's
of permitting
detention
King
King fails to
responsibility for
Instead,
that
Stewart
(Compl. 3.)
Jail.
conclusory allegations
"knew"
King alleges
County
2012)
"'actual
statement"
failed to render the allegation plausible under Igbal); Mayfield
Nat'l Ass'n Stock Car Auto Racing,
Cir.
that
2012)
is
Corp.
(explaining that a conclusory assertion of knowledge
nothing
standard-is
v.
Inc., 674 F.3d 369, 378 (4th
more
than
precisely the
Twombly,
550
"a
mere
recitation
sort of allegations
U.S.
544,
555
of
that
(2007)]
the
legal
[Bell Atl.
and
Igbal
rejected").
King's vague
fail
to
"produce
factual
an
allegations against
inference
of
17
liability
Defendant Stewart
strong
enough
to
nudge
to
plaintiff's
plausible.'"
Inc.,
at
the
Nemet
591 F.3d 250,
683).
Thus,
participated
in
claims
Chevrolet,
256 (4th Cir.
King
or
'across
fails
was
aware
King's constitutional rights.
to
the
Ltd.
2009)
allege
of
any
line
v.
from conceivable
Consumeraffairs.com,
(quoting Igbal,
that
Stewart
purported
556 U.S.
personally
deprivation
Stewart's Motion to
of
Dismiss will
be granted and Claim One will be dismissed.11
B.
Defendant Miller
In Claims
performed
11
Five and Six,
a psychiatric
King
mentions
King
faults
evaluation of
the
Equal
Dr.
King
Miller because he
under section
Protection
Clause
in
37.2-
his
Complaint, but provides no allegations to support this claim.
While
none
of
the
defendants
address
King's
vague
equal
protection claim, the Court reviews this claim pursuant to its
obligations under 28 U.S.C. § 1915(e)(2).
The Equal Protection
Clause of
the
Fourteenth Amendment commands that similarly
situated persons be treated alike.
See City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v.
Doe, 457 U.S. 202, 216 (1982)).
In order to state an Equal
Protection Clause claim, King must allege: (1) "that he has been
treated differently from others with whom he is similarly
situated"; and, (2) that the differing treatment resulted from
intentional discrimination.
Morrison v. Garraghty, 239 F.3d
648, 654 (4th Cir. 2001) .
King fails to allege any facts that
indicate that
the
defendants discriminated against him or
treated him differently
than
any other
similarly situated
inmate.
To the extent King alleges a violation of equal
protection, such claim will be summarily dismissed.
King also makes a passing reference to Defendant Stewart's
failure to file a "report ordered by the Court" on November 11,
2011.
(Compl. 6.)
However, King fails to allege how this
vague, unsupported allegation pertains factually or temporally
to the remainder of his claims alleging a purportedly illegal
detention in the Patrick County Jail through September 19, 2011.
18
913(B)12 of the Virginia Code in the Patrick County Jail instead
of
in
a
"proper
clinical
setting."
(Compl.
3.)
King
argues
that Dr. Miller "an expert in the handling and care" of civilly
committed SVPs, violated King's right to due process because he
"knew that
it was
illegal
to detain Mr.
King
in
a jail/prison
general population . . . but willfully allowed that violation of
Mr. King's rights to continue."
To the
failure to
extent that King suggests that Dr. Miller's alleged
follow state law violated his
King's claim lacks merit.
Dr. Miller had personal
place
of
detention
or
right to due
involvement in the
the
location where
section 37.2-913(B)
that
Miller's
interview
selection of King's
he
interviewed King.
of the Virginia Code requires only
take
place
in
a
"secure
not a "proper clinical setting" as King suggests.
Ann.
§ 37.2-913(B).
process,
King fails to adequately allege that
Moreover,
Dr.
(Id. at 6.)
The
Patrick
County
Jail
facility"
See Va. Code
is
certainly
a
12 Section 37.2-913(B) provides in relevant part:
The respondent
shall be transported to a secure
facility specified by the Department where a person
designated by the Department who is skilled in the
diagnosis and risk
knowledgeable about
assessment of sex
the treatment of
offenders and
sex offenders
shall as soon as practicable, perform a mental health
examination of the respondent, including a personal
interview.
Va. Code Ann. § 37.2-913(B).
Contrary to King's assertion the
statute contains no requirement that the interview take place in
a "proper clinical setting."
(Compl. 3.)
19
"secure
facility."
Claim
Five
lacks
merit
and
will
be
dismissed.
In
Claim
Six,
King
argues
that
Dr.
"interrogated"
King,
but King "was
not
with
any
and,
was
denied
(Compl.
3.)
King wholly fails to allege how
crime;
attorney . . . ."
read his rights
Miller
. . . was not charged
consultation
with
an
the Court-ordered psychological evaluation of King violated his
rights
to
due
dismissed.
C.
In
process.
Claim
Six
lacks
merit
and
will
be
Dr. Miller's Motion to Dismiss will be granted.
Patrick County Jail Defendants
Claims
Two,
Three,
and
Four,
King
Patrick County Jail Defendants violated his
Amendment
rights.
In
response,
the
alleges
that
the
Fifth and Fourteenth
Patrick
County
Jail
Defendants argue that King's claims are legally frivolous under
Heck
v.
Humphrey,
512
violations of state law
claim.
3.)
U.S.
(Patrick County Jail
Nevertheless,
the
Two for failure to state a
1.
Defs.'
Court
Mem.
and
alleged
for a due process
Supp.
Mot.
Dismiss
2-
the Motion to Dismiss will be
will
summarily dismiss
Claim
claim.
King
contends
that Captain Darryl Smith and
Dan Smith violated his Fifth Amendment
alleges
that
Fifth Amendment
In Claim Two,
Sheriff
(1994)
cannot be the basis
For the reasons stated below,
denied.
Two
477
that
Captain
Darryl
20
Smith
rights.
"violated
Mr.
Claim
King's
rights
when
State
Police
jail's
[Smith]
and
general
Sheriff
other
he
Dan
made
jail
population
to
allege
in
under
his
with
King
to
detain
Mr.
5.)
King
allowed
and
(2)
then
felons."
conduct
of
or
from
the
King
(Id.)
Captain
in
the
that
negligently permitted
King to be
be
Virginia
claims
and supervision to
allowed Mr.
convicted
the
Mr.
(Compl.
control
(1)
handcuffs;
how
decision
"decided or
King's rights when he
his
a
population."
Smith
persons
'received'
violate
escorted into
assigned
into
However,
Darryl
Mr.
Smith
general
King
and
fails
Sheriff
Dan Smith in transporting King in handcuffs or detaining him in
the general population of the Patrick County Jail implicates the
Fifth Amendment.13
2.
King
improperly
Accordingly, Claim Two will be dismissed.
Fourteenth Amendment
contends
that
detained
in
as
the
an
SVP,
Patrick
a
civil
County
committee,
Jail,
in
he
was
general
13 At the beginning of King's Fifth Amendment section he
contends that he had a "5th Amendment right to not be detained
by authorities (1) without a warrant; or (2) without a Grand
Jury Indictment."
(Compl. 4.)
King fails to allege that either
Defendant Captain Darryl Smith or Defendant Sheriff Dan Smith
had
any
personal
involvement
in
ordering
his
arrest
and
detention.
Instead, the record shows that, after King's arrest
for a new felony charge, a magistrate ordered his detention in
the Patrick County Jail.
(See Stewart's Mem. Supp. Mot. Dismiss
Ex.
3, at 1-2.)
Moreover, the
Fifth Amendment's "'requirement of a grand
jury indictment is not applicable to the states.'"
Robinson v.
Stewart, No. 3:11CV63, 2012 WL 3151535, at *3 (E.D. Va. Aug. 2,
2012)
(some internal quotation marks omitted)
(quoting Bae v.
Peters,
950 F.2d 469,
477-78
(7th Cir.
21
1991)).
population,
19, 2011.
between his arrest on July 8, 2010 through September
In King's view,
section § 37.2-909(A)
of the Virginia
Code required the Patrick County Jail Defendants to detain King
either
in
the
VCBR
or
"segregated
by
sight
and
sound
at
all
times from prisoners in the custody of a correctional facility,"
Va.
Code Ann.
King
in
§ 37.2-909 (A),
compliance
rights.
King
with
also
and that
the
failure to
state
law
violated
that
his
assignment
argues
his
segregate
due
as
process
jail
barber
violated his due process rights because it placed him in contact
with
inmates.
The
extent
Patrick
King
'seeks
incarceration
frivolous
related
of
such
under
his
Defendants
damages
via
42
v.
Supp.
civil
No. 3:11CV534,
Mot.
1983
U.S.
512
detention
Jail
2012
or
477
Dismiss
continued civil
Defendants
frivolous
However,
WL
under
are correct,
Heck.
2374016,
King also
at
and
See
the
improper
is
legally
(1994)
2
and
(citation
*2-3
seeks money
(E.D.
damages
he was
in
environment
detention
punitive
rights.
The
and
that
Patrick
22
County
detention,
the
King's claims
McVey
as a civil detainee,
process
"to
from
§
argument that,
a
that
stemming
U.S.C.
Humphrey,
(Mem.
argue
To the extent that King seeks damages based on the
legally
2012).
money
Heck
Patrick County
are
Jail
attempt
cases.'"
omitted).)
fact
County
v.
Runion,
Va.
Feb.
21,
based on his
improperly detained
violated
Defendants
his
have
due
not
explained how
his
Heck bars
detention
should
have
in
a
been
King's claims
punitive
detained
as
for
monetary damages
environment,
a
as
committee
civil
if,
at
for
alleged,
the
he
relevant
time.
The
Patrick
violations
of
state
process claim.
the
County
171, 181
cursory
Ann.
§
law
itself,
545 U.S.
at
(4th Cir.
argument
37.2-909(A)
provide
from
220-21;
Claims
denied
Three
The
analysis
without
Four,
prejudice
suggest
basis
for
to
state
laws
and
that
a
due
a
to
address
protected
policies.
Fahey,
Patrick County Jail
fail
creates
and
the
see Burnette v.
Because the Patrick County Jail
address
also
a liberty interest may arise from
or
2012) .
and
Defendants
cannot
Nevertheless,
Constitution
Wilkinson,
Jail
687
F.3d
Defendants'
whether Va.
liberty
Code
interest.
Defendants failed to adequately
their Motion
raising
the
to
Dismiss
issue
on
will
be
summary
judgment should they choose to do so on a thorough presentation
of applicable law.
V.
FAILURE
TO
SERVE DEFENDANTS
Pursuant to Federal Rule of Civil Procedure 4(m), King had
one
hundred
and
twenty
(120)
days
complaint to serve the Defendants.
on June 14, 2013.
street
address
for
from
the
filing
of
the
Here, that period commenced
The Court directed King to promptly provide a
the
Defendants
23
if
he
desired
the
Court's
assistance
in
effecting
service.
King
provided
addresses
for
some defendants and by Memorandum Order entered October 2, 2013,
the
Court
named
directed
defendants
Marshal
Taylor
filed
with
and
an
the
the
Clerk
for
the
unexecuted
Court
to
on
issue
process
Marshal
return
October
to
for
4,
for
effect
service.
Defendants
2013
and
the certain
The
Sargent
April
28,
and
2014
indicating that these defendants no longer work at the addresses
provided by King.
(See ECF Nos. 27, 45. }14
to provide sufficient
on
the
Unknown
King has also failed
identifying information to
Defendant
1,
a Trooper with
the
effect service
Virginia
State
Police.
By Memorandum Order entered May
8,
King to show cause,
within eleven (11)
thereof,
action
prejudice
why
the
against
Defendant 1.
should
Defendants
2014,
the Court ordered
days of the date of entry
not
Sargent,
be
dismissed
Taylor,
and
without
Unknown
King has responded.
Rule 4 (m)
requires
that,
absent a showing
of good cause,
the Court must dismiss without prejudice any complaint in which
the
plaintiff fails
120-day period.
to
serve
Fed. R. Civ.
the defendant within the allotted
P.
4(m).
Courts within the Fourth
Circuit found good cause to extend the 120-day time period when
the plaintiff has made "'reasonable,
diligent efforts to effect
14 The Marshal sent King notice that he could not serve
Defendants Sargent and Taylor at the addresses provided by King.
24
service
on
the
3:05cv821,
defendant.'"
2007
WL
Venable
5145334,
at
Dep't
(E.D.
*1
v.
Va.
(quoting Hammad v. Tate Access Floors,
528
(D. Md.
As
cause
However,
v.
24,
for
his
Defendants,
for
his
inability
King
failure
to
first
effect
detention does not
Long,
Corr.,
Feb.
31 F.
7,
Supp.
No.
2007)
2d 524,
1999)).
cause
unserved
Inc.,
of
No.
2012)
3:08CV100,
(citations
to
provide
faults
his
service.
an
address
civil
WL
214085,
(ECF No.
omitted).
King
at
also
*l-2
the
detention
47,
suffice to show good cause.
2012
for
at
the
1.)
Sewraz
(E.D.Va.
makes
as
Jan.
unsworn
allegation that he has no access to the Internet "or any other
means
to
locate
"fled
from
the
their
defendants,"
former
King's allegations fail
diligent
efforts
to
and
claims
employment."
(ECF
that
No.
Defendants
47,
at
2.)
to demonstrate that he made reasonable,
effect
service
Taylor, or Unknown Defendant 1.
on
Defendants
Sargent,
Furthermore, nothing submitted
by King gives this Court any indication that Defendants will be
properly served any time in the future.
at
*3
(citations
Defendants
Sargent,
omitted).
Taylor,
Sewraz,
Accordingly,
and
dismissed without prejudice.
25
Unknown
the
2012 WL 214085,
claims
Defendant
1
against
will
be
VI.
Stewart's
Miller's
Motion
Patrick County
be
Motion
denied
to
to
Dismiss
Dismiss
Defendants'
without
CONCLUSION
(ECF No.
Motion
prejudice.
Taylor,
and
Unknown
No.
23)
to
30)
will
Dismiss
Claims
will be dismissed with prejudice.
Sargent,
(ECF
One,
be
and
Defendant
granted.
(ECF No.
Two,
37)
Five,
and
The
will
Six
The claims against Defendants
Defendant
1
will
be
dismissed
without prejudice.
The
Clerk
is
directed
to
send
a
copy
of
the
Memorandum
Opinion to King and counsel of record.
is/
{LLP
Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date:
September
Is', 2014
26
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