Richards v. Nuss
Filing
18
CORRECTED MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 5/14/2015. Copy mailed to Pro Se Plaintiff. (jsmi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
MARK E.
RICHARDS,
Plaintiff/
V.
Civil Action No.
3:14CV125
LISA NUSS,
Defendant.
MEMORANDUM OPINION
Mark E,
Richards,
in forma pauperis,
a Virginia inmate proceeding pro se and
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)
to 28 U.S.C.
and
1915A.
§§ 636(b)
Jurisdiction
is
appropriate
pursuant
and 1343.
I.
Preliminary Review
Pursuant to the Prison Litigation Reform Act
C'PLRA")
this
Court must dismiss any action filed by a prisoner if the Court
determines
the
action
(1)
"is
frivolous"
or
(2)
''fails
to
^ 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.
state
a
claim
on
which
§ 1915(e)(2);
includes
relief
28
claims
may
U.S.C.
based
be
§
upon
granted."
1915A.
'*an
The
28
first
indisputably
U.S.C.
standard
meritless
legal
theory,'" or claims where the '"'^factual contentions are clearly
baseless.'"
1992)
Clay
Yates^
(quoting Neitzke v.
The Court may
claim is
look to
frivolous.
the familiar
P.
v.
own
id.
standard for a
F.
Williams^
its
See
809
at
Supp.
417,
490 U.S.
records
427
319,
(E.D.
327
Va.
(1989)).
in assessing whether
427-28.
The
a
second standard is
motion to dismiss under Fed.
R.
Civ.
12(b)(6).
motion to dismiss under Rule
of
a
complaint;
surrounding
importantly,
it
facts,
the
merits
the
applicability of defenses."
980 F.2d 943,
Arthur R.
12(b) (6)
952
Miller,
(4th Cir.
does
tests
not
of
the
sufficiency
resolve
a
contests
claim,
or
the
Republican Party of N.C. v. Martin^
1992)
(citing 5A Charles A.
Wright &
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.
Cir.
1993);
applies
viewed
Mylan Labs.,
see
only
considering
in
factual
motion
light
most
to
980
F.2d at
allegations,
dismiss
can
to
the
7 F.3d 1130, 1134
Inc. v. Matkari,
also Martin,
to
a
the
favorable
(4th
952.
however,
choose
This
principle
and
''a
court
to
begin
by
identifying
pleadings
conclusions,
are
Ashcroft V.
The
that,
not
Iqbal,
Federal
because
entitled
556 U.S.
Rules
to
the
679
662,
of
they
are
no
more
(2009).
Civil
assumption
Procedure
of
than
"require[
truth."
]
only
'a
short and plain statement of the claim showing that the pleader
is
entitled
to
relief,'
notice of what the
rests.'"
.
Bell Atl.
.
in
order
41,
47
with
complaints
"formulaic
Id.
Corp.
(1957)).
v.
Twombly,
level,"
"to
id.
"plausible
raise
of
a
its
"conceivable."
Id.
plaintiff pleads
reasonable
survive
550 U.S.
cannot
to
id.
fair
555
and
of
a
(2007)
Gibson,
standard
conclusions"
cause
355
of
or
a
action."
above
stating
at
570,
facial
the
a
speculative
claim
rather
that
than
is
merely
plausibility when the
content that allows the court to draw
that
Iqbal,
at 556).
544,
satisfy this
relief
"A claim has
inference
for
defendant
a plaintiff must allege facts
omitted),
factual
dismissal
elements
Instead,
face,"
misconduct alleged."
Corp. ,
the
right
(citation
on
the
550 U.S.
containing only "labels
recitation
the
(quoting Conley v.
Plaintiffs
(citations omitted).
sufficient
^give
. claim is and the grounds upon which it
(second alteration in original)
U.S.
to
the
defendant
556 U.S.
at
678
In order for a
failure
to
state
a
is
liable
for
the
(citing Bell Atl.
claim or complaint to
claim,
the
plaintiff
must "allege facts sufficient to state all the elements of
[his
or]
761,
her claim."
765 {4th Cir.
F.3d 193, 213
270,
Bass v.
281
2003)
se
1151
1978),
(4th Cir.
inmate
to
Lastly,
while
Gordon
v.
1278
concurring);
{4th Cir.
statutory and
clearly
raise
Beaudett
Richards,
Leeke^
on
the
v.
City
of
face
of
liberally
F.2d
1147,
his
claims
Hampton,
775
the
complaint.
(4th Cir. 1997)
(Luttig,
F.2d
1274,
a
Summairy of Allegations
Virginia
inmate
eligible
for
brings this action against Lisa Nuss,
Nuss
574
constitutional
counselor at Deep Meadow Correctional Center.
that
Court
1985).
II.
parole,
the
it does not act as the inmate's advocate,
See Brock v. Carroll, 107 F.3d 241, 243
J.,
309
lodice v. United States, 289 F.3d
complaints,
developing
failed
324 F.3d
(citing Dickson v. Microsoft Corp.,
(4th Cir. 2002)).
sponte
DuPont de Nemours & Co.,
(4th Cir. 2002);
construes pro
sua
E.I.
caused
him
to
transmit
false
discretionary
an institutional
Richards contends
information
about
his
prison employment to the Virginia Parole Board which resulted in
the
denial
2014.^
of
Richards's
Richards
asserts
release
that
as
on
a
discretionary
result
of
parole
Defendant
Nuss's
^ Specifically, Richards alleges that:
Plaintiff
accurate
[Parole]
informed
Defendant
information
Board
interview . . . .
that
he
wished
to
convey
concerning his employment to the
at
the
upcoming
Defendant
4
informed
Plaintiff
in
that
action,
'^Plaintif f' s
consideration
for
liberty
parole
interest
suitability
was
to
infringed
result thereof deprived of due process of law."
Ill.
The
deprives
an
interest.
564,
Process
Clause
applies
of
See Bd.
569-70
and
as
a
(Id. at 4.)
Analysis
individual
Due
meaningful
a
when
legitimate
government
liberty
of Regents of State Colls,
(1972) .
Thus,
the
first
or
property
Roth^
v.
step
action
408 U.S.
in
analyzing
a
procedural due process claim is to identify whether the alleged
conduct
affects
Beverati v.
omitted).
interest,
Smithy
a
protected
liberty
120 F.3d 500,
502
property
(4th Cir.
Where government action impacts a
1997)
interest.
(citations
protected liberty
the second step is to determine ^^what process is due"
under the circumstances.
(1972)
or
Morrissey v.
Brewer,
408 U.S.
471,
481
(observing that "due process is flexible . . . . not all
her
review of his
institutional
he was still employed as a
and that
information would be
in her parole report.
records
indicated that
Housekeeping Worker in 6B
transmitted to the
Board
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).)
5
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).
"There
Wilkinson v. Austin,
is
no
constitutional
or
545 U.S.
inherent
right of a convicted person to be conditionally released before
the expiration of a
valid sentence."
Neb.
Complex,
Penal
& Corr.
442
Greenholtz v.
U.S.
1,
constitutional right to parole per se,
7
Inmates of
(1979).
''With
no
federal courts recognize
due process rights in an inmate only where the state has created
a
^legitimate claim of entitlement'
Vann
v.
Anqelone,
Gaston v.
73
Taylor,
F.3d
519,
946 F.2d 340,
The United States Court
consistently has
to
522
344
some aspect of parole."
(4th
Cir.
(4th Cir.
of Appeals
1996)
(quoting
1991)).
for
the
Fourth Circuit
found the pertinent Virginia statutes
fail
create a
protected liberty interest in release on parole.
Burnette
v.
Gaston
v.
Angelone,
has
(E.D.
Taylor,
Va.
687
946
a
Oct.
522
limited
Burnette
25,
v.
F.3d
F.2d
73 F.3d 519,
created
parole.
Fahey,
171,
340,
344
(4th Cir.
liberty
Fahey,
2010);
181
(4th
(4th
Cir.
1996)).
interest
3:10CV70,
Burnette,
Cir.
in
2010
687
2012)
1991);
Virginia,
See
(citing
Vann
F.3d
4279403,
at
181.
v.
however,
consideration
WL
to
at
for
*8
''The
question thus becomes what procedures are required under the Due
Process
Clause
in
[considering]
release on parole.'"
Neal
V.
Fahey,
Mar.
18,
Burnette,
inmate
for
discretionary
2010 WL 4279403, at *8
Fourth
Circuit
2008
has
WL
728892,
stated
that
at
*2
(quoting
2008)).
The
No. 3:07cv374,
an
the
{E.D.
Va.
Constitution
requires only a very limited amount of process in considering an
inmate
for
parole.
authorities
reasons
must
for
(alteration
Specifically,
furnish
denial
and
of
to
the
in
most,
prisoner
parole."
omission
^Ma]t
a
(internal quotation marks omitted).
687
under
state."
Moreover,
the
Burnette,
''where
guise
of due
2010
the
WL
constitutionally valid ground,
allegedly
right."
1986)
invalid
ground
Bloodgood v.
the
omitted)
at
the federal courts
demand more
*8
parole
not
Garraqhty,
Virginia
at 181
from
(citation
.
.
.
the
omitted).
rests
on
one
the Board's consideration of an
would
(citing Zant v. Stephens,
Here,
process,
of
F.3d
its
"So long as the statement
4279403,
denial
of
(citation
provides a valid ground for denying parole,
cannot,
parole
statement
Burnette,
original)
. . .
violate
783
462 U.S.
Parole
F.2d
862
a
constitutional
470, 475
(4th
Cir.
(1983)).
Board provided
statement of its reasons for denying him parole.
Richards
with
Memorandum in
Support of Petition for Writ of Habeas Corpus Attachment D,
1,
Richards v.
Clarke,
3:14CV715
(E.D. Va.
a
filed Oct.
29,
at
2014),
ECF
No. 2-1,
at
4
(as
Richards's
allegation,
Richards's
parole
paginated
the
(Id.)
accurate
information
parole.
*1-5
{E.D.
Va.
of
any
CM/ECF) .
Parole
false
Contrary
Board
did
to
deny
about
information
not
his
Richards was denied parole based upon
See Richards v.
at
Virginia
because
prison employment.
by
that
he
was
Clarke,
Feb.
and
No.
21,
is
a
poor
3:12CV639,
2014)
candidate
for
2014 WL 693505,
(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,
for
the denial
that
he
was
he fails to state a claim for relief
of due process.
denied
parole
Moreover,
because
of
Richards's
inaccurate
assertion
information
about his prison employment is frivolous.
The
and
as
action
will
legally
and
be
dismissed
factually
for
failure
frivolous.
to
The
state
Clerk
a
claim
will
be
directed to note the disposition of the action for purposes of
28 U.S.C.
The
§ 1915(g).
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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