Richards v. Nuss
Filing
15
MEMORANDUM OPINION. See Opinion for details. Signed by District Judge Robert E. Payne on 05/08/2015. (ccol, )
p
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
TT
may •" 8 2015
Richmond Division
p.WkITs. district court
MARK E.
CLERK.
RICHARDS,
Plaintiff,
Civil Action No.
V.
3:14CV125
LISA NUSS,
Defendant.
MEMORANDUM OPINION
Mark E. Richards, a Virginia inmate proceeding pro ^
and
^ forma pauperis, filed this 42 U.S.C. § 1983 action.'
The
matter is before the Court for evaluation pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A.
Jurisdiction is appropriate pursuant
to 28 U.S.C. §§ 636(b) and 1343.
I.
Preliminary Review
Pursuant to the Prison Litigation Reform Act ("PLRA") this
Court must dismiss any action filed by a prisoner if the Court
determines the action (1) "is frivolous" or (2) "fails to state
' The 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 . . . .
42 U.S.C.
§
1983.
a
claim
on
which
§ 1915(e)(2);
includes
^
relief
28
claims
may
U.S.C.
based upon
be
granted."
§ 1915A.
The
28
first
U.S.C.
standard
" ^an indisputably meritless
legal
theory,'" or claims where the "'factual contentions are clearly
baseless.'"
Clay v.
Yates^
809
F.
Supp.
417,
427
(E.D.
Va.
1992) (quoting Neitzke v» WilliamS/ 490 U.S. 319, 327 (1989)).
The Court may look to its own records in assessing whether a
claim is frivolous. S^
at 427-28.
The second standard is
the familiar standard for a motion to dismiss under Fed. R. Civ.
P.
12(b)(6).
"A
motion
to
dismiss
sufficiency of a complaint;
under
importantly,
contests surrounding the facts,
applicability of defenses."
Rule
12(b)(6)
tests
the
it does not resolve
the merits of a claim, or the
Republican Party of N.C. v. Martin,
980 F.2d 943, 952 (4th Cir. 1992)
(citing 5A Charles A. Wright &
Arthur R. Miller, 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
plaintiff.
viewed
the
light
most
favorable
to
the
Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th
Cir. 1993); ^
applies
in
only
also Martin, 980 F.2d at 952.
to
factual
allegations,
however,
This principle
and
''a
court
considering
a
motion
to
dismiss
can
choose
to
begin
by
identifying pleadings that, because they are no more than
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,
(second alteration in original)
U.S.
41,
47 (1957)).
550 U.S.
544,
(quoting Conley v.
555
(2007)
Gibson, 355
Plaintiffs cannot satisfy this standard
with complaints containing only "labels and conclusions" or a
"formulaic
Id.
recitation
of
the
elements
of
a
cause
of action."
(citations omitted).
Instead, a plaintiff must allege facts
sufficient "to raise a
right to relief above the speculative
level,"
omitted),
id.
"plausible
(citation
on
its
face,"
"conceivable."
Id.
i^
stating
at
570,
a
claim
rather
than
that
is
merely
"A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the
reasonable
inference that
misconduct alleged."
Iqbal,
Corp., 550 U.S. at 556).
survive dismissal
for
the defendant
556 U.S. at 678
is
liable
for
the
(citing Bell Atl.
In order for a claim or complaint to
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) (citing Dickson v. Microsoft Corp., 309
F.3d 193, 213 (4th Cir. 2002); lodice v. United States, 289 F.3d
270, 281 (4th Cir. 2002)).
Lastly, while the Court liberally
construes pro se complaints, Gordon v.
Leeke^ 574 F.2d 1147,
1151 (4th Cir. 1978), it does not 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 F.3d 241, 243 (4th Cir. 1997)
J.,
1278
concurring); Beaudett v.
City of Hampton,
(Luttig,
775 F.2d 1274,
(4th Cir. 1985).
II.
Richards,
a
Summary of Allegations
Virginia
inmate
eligible
for
discretionary
parole, brings this action against Lisa Nuss, an institutional
counselor at Deep Meadow Correctional Center.
that Nuss caused him to transmit false
Richards contends
information about his
prison employment to the Virginia Parole Board which resulted in
the
denial
2014.^
of
Richards's
release
on
discretionary
parole
in
Richards asserts that as a result of Defendant Nuss's
^ Specifically, Richards alleges that:
Plaintiff informed Defendant that he wished to convey
accurate information concerning his employment to the
[Parole]
Board
at
the
upcoming
interview . . . . Defendant informed Plaintiff that
her review of his institutional records indicated that
he was still employed as a Housekeeping Worker in 6B
4
action,
"Plaintiff's
consideration
for
liberty
parole
interest
to
suitability was infringed and as
result thereof deprived of due process of law."
III.
The
Due
Process
Clause
applies
564,
a
(Id. at 4.)
Analysis
deprives an individual of
interest.
meaningful
when
a legitimate
government
action
liberty or property
Bd. of Regents of State Colls, v. Roth, 408 U.S.
569-70
(1972) .
Thus,
the
first
step
in analyzing a
procedural due process claim is to identify whether the alleged
conduct
affects
property
interest.
Beverati v. Smith. 120 F.3d 500, 502 (4th Cir. 1997)
(citations
omitted).
a
protected
liberty
or
Where government action impacts a protected liberty
interest, the second step is to determine "what process is due"
under the circumstances.
(1972)
Morrissev v. Brewer, 408 U.S. 471, 481
(observing that "due process is flexible . . . . not all
and that information would be transmitted to the Board
in her parole report.
Plaintiff was interviewed by a
representative from the Board the morning of January
13, 2014, during which he stated that he was employed
as a Housekeeping Worker in 6B . . . . On the night
of January 13, 2014, Plaintiff received his Offender
Pay Statement for the period of December 2, 2013 to
January 5, 2014, and learned for the first time that
his employment as a Housekeeping Worker in 6B had been
terminated on December 30,
2013.
(Compl. 3 (spelling corrected)(citation omitted).)
situations calling for procedural safeguards call for the same
kind of procedure").
A liberty interest may arise from the Constitution itself,
or from state laws and policies.
209, 220-21 (2005).
Wilkinson v. Austin, 545 U.S.
"There is no constitutional or inherent
right of a convicted person to be conditionally released before
the expiration of a valid sentence."
Greenholtz v. Inmates—of
Neb.
1,
Penal & Corr.
Complex,
442 U.S.
7
(1979).
"With no
constitutional right to parole per se, federal courts recognize
due process rights in an inmate only where the state has created
a 'legitimate claim of entitlement' to some aspect of parole.
Vann v.
Angelone,
73 F.3d 519,
522 (4th Cir.
1996)
(quoting
Gaston v. Taylor, 946 F.2d 340, 344 (4th Cir. 1991)).
The United States Court of Appeals for the Fourth Circuit
consistently has found the pertinent Virginia statutes fail to
create a protected liberty interest in release on parole.
Burnette v.
Fahey,
Gaston V. Taylor,
687 F.3d 171,
946
F.2d 340,
181 (4th Cir.
344
(4th Cir.
2012)
See
(citing
1991); Vann v.
Angelone, 73 F.3d 519, 522 (4th Cir. 1996)).
Virginia, however,
has
consideration
created a
parole.
limited
liberty interest
in
for
Burnette v. Fahey, 3:10CV70, 2010 WL 4279403, at *8
(E.D. Va. Oct. 25, 2010); Burnette,
687 F. 3d at 181.
"''The
question thus becomes what procedures are required under the Due
Process Clause in
[considering]
release on parole.'"
an inmate for discretionary
Burnette, 2010 WL 4279403, at *8 (quoting
Neal V. Fahey, No. 3:07cv374, 2008 WL 728892, at *2 (E.D. Va.
Mar.
18,
2008)).
The
Fourth Circuit
has
stated
that
the
Constitution
requires only a very limited amount of process in considering an
inmate for parole.
Specifically,
"[a]t most, . . . parole
authorities must furnish to the prisoner a statement of its
reasons for denial of parole."
(alteration
and
omission
in
Burnette,
original)
(internal quotation marks omitted).
687 F.3d at 181
(citation
omitted)
"So long as the statement
provides a valid ground for denying parole, the federal courts
cannot, under the guise of due process, demand more from the
state."
Moreover,
Burnette, 2010 WL 4279403, at *8 (citation omitted).
"where the
denial
of
parole
. . .
rests
on one
constitutionally valid ground, the Board's consideration of an
allegedly invalid ground would not violate a constitutional
right."
Bloodqood v. Garraghty, 783 F. 2d 470, 475 (4th Cir.
1986) (citing Zant v. Stephens, 462 U.S. 862 (1983)).
Here, the Virginia Parole Board provided Richards with a
statement of its reasons for denying him parole.
Memorandum in
Support of Petition for Writ of Habeas Corpus Attachment D, at
1, Richards V. Clarke, 3:14CV715 (E.D. Va. filed Oct. 29, 2014),
ECF NO. 2-1, at 4 (as paginated by CM/ECF).
Contrary to
Richards's allegation, the Virginia Parole Board did not deny
Richards parole because of any false Information about his
prison employment. (I^) Richards was denied parole based upon
accurate Information that he was and is a poor candidate for
parole.
at
*1-5
Richards v. Clarke, No. 3:12CV639, 2014 WL 693505,
(E-D.
Va.
Feb.
21,
2014)
(describing Richards's
extensive criminal record and poor behavior while on release on
parole).
Because Richards has received all of the process that
the constitution requires, he fails to state a claim tor relief
for the denial of due process. Moreover, Richards's assertion
that he was denied parole because of inaccurate information
about his prison employment is frivolous.
The action will be dismissed for failure to state a claim
and as legally and factually frivolous.
The Clerk will be
directed to note the disposition of the action for purposes of
28 U.S.C. § 1915(g).
The Clerk is directed to send a copy of the Memorandum
Opinion to Richards.
/s/
Robert E.
Payne
Senior United States District Judge
Date:
Richmond, Virginia
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