Albritton v. Snead et al

Filing 25

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 10/2/2015. Copy mailed to Pro Se Plaintiff. (jsmi, )

IN THE

UNITED

FOR THE

STATES

DISTRICT

EASTERN DISTRICT

COURT

OF VIRGINIA

Richmond Division

MORRIS ALBRITTON,

Plaintiff,
Civil Action No.

V.

MRS. S. SNEAD, ^

3:14CV558

al.,

Defendants.
MEMORANDUM OPINION

Morris Albritton,

a

Virginia

inmate proceeding pro se and

in forma pauperis, filed this 42 U.S.C. § 1983 action.^
reasons
failure

set

for

below,

to state a

the

Court

will

dismiss

the

STANDARD

Court must dismiss any action filed by a
the action

claim

on

which

(1)

"is

relief

frivolous"

may

be

C'PLRA")

or

(2)

granted."

"fails

28

to state

U.S.C.

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 . . . .
U.S.C.

§

1983.

this

prisoner if the Court

^ The statute provides, in pertinent part:

42

for

OF REVIEW

Pursuant to the Prison Litigation Reform Act

a

action

claim.

I.

determines

For the

§ 1915(e)(2);

includes

see

claims

28

U.S.C.

based

upon

§

1915A.

'''an

The

first

indisputably

standard

meritless

legal

theory,'" or claims where the "'factual contentions are clearly
baseless.'"

1992)
The

Clay v.

Yates,

809

F,

(quoting Neitzke v. Williams,
second

standard

dismiss under Fed.

"A

motion

sufficiency of

R.

to

a

is

the

Civ.

P.

427

319,

standard

(E.D.

327

for

a

Va.

(1989)).

motion

to

12(b)(6).

dismiss

under

complaint;

Rule

12(b) (6)

importantly,

applicability of defenses."
952

417,

490 U.S.

familiar

contests surrounding the facts,

980 F.2d 943,

Supp.

it

does

tests

not

the

resolve

the merits of a claim,

or the

Republican Party of N.C. v. Martin,

(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

in

the

only

to

factual

considering

a

identifying

pleadings

conclusions,
Ashcroft v.

most

favorable

to

the

Mylan Labs., Inc. v. Matkari, 7 F.Sd 1130, 1134 (4th

Cir. 1993); s^ also Martin,
applies

light

motion

are
Iqbal,

not

980 F.2d at 952.

allegations,

to

dismiss

that,

556 U.S.

can

because

entitled
662,

to
679

however,

choose

they

the

are

This principle
and

to
no

assumption

(2009).

"a

court

begin
more
of

by
than

truth."

The

Federal

Rules

of

Civil

Procedure

"require[

]

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

Corp.

Id.

{1957)).

v.

Twombly,

containing only
of

the

(citations omitted).

sufficient
level,"

"to. raise

id.

a

570.

pleads

(citation

reasonable

Corp. ,

550

U.S.

at

to

facial
that

that

misconduct alleged."

fair

544,

555

Gibson,

satisfy this

and

of

(2007)

standard

conclusions"

a

cause

of

355

or

relief

above

stating

a

the

speculative

claim

that

556) .

is
Id.

plausibility when the plaintiff
allows

the

Iqbal,

a

action."

rather than merely "conceivable."

content

inference

defendant

a plaintiff must allege facts

omitted),

"A claim has
factual

"labels

elements

right

550 U.S.

cannot

Instead,

"plausible on its face,"

at

the

{quoting Conley v.

Plaintiffs

recitation

'give

. claim is and the grounds upon which it

(second alteration in original)
U.S.

to

the

court

defendant

556 U.S.
Therefore,

is

at 678

to

draw

liable

the

for

the

(citing Bell Atl.

in order for

a

claim or

complaint to survive dismissal for failure to state a claim,

the

plaintiff

the

must

"allege

elements of

[his or]

& Co. ,

F.3d

324

Microsoft

Corp.,

United States,

her claim."

761,
309

facts

765
F.3d

289 F.3d 270,

{4th
193,
281

sufficient
Bass v.

Cir.
213

E.I.

2003)
{4th

{4th Cir.

to

state

DuPont de Nemours

(citing

Cir.

all

2002);

2002)).

Dickson

v.

lodice

v.

Lastly,

while

complaints,
1978),

it

the

Gordon
does

v.

not

Court

Leeke,

act

as

liberally

574

the

F.2d

construes

1147,

inmate's

1151

pro

(4th

advocate,

sua

se

Cir.

sponte

developing statutory and constitutional claims the inmate failed
to

clearly raise

Carroll,

107

concurring) ;
(4th Cir.

on the

F.3d

alleges

243

Beaudett v.

of

his

(4th

City of

complaint.

Cir.

See

1997)

Hampton,

Brock v.
J.,

F.2d 1274,

775

(Luttig,

1278

1985).

II.

In

241,

face

SUMMARY OF ALLEGATIONS AND CLAIMS

Albritton's

purported

Department

of

rambling

violations

Corrections

and

of

repetitive

his

("VDOC")

rights

Complaint,

under

operating

he

Virginia

procedures,

Virginia law,

and the Due Process Clause of the United States

Constitution^

stemming

from

the

Virginia

Division

Support's order to withhold money from his

satisfy arrears

owed

and

the

VDOC

of

Child

inmate accounts

staff's

execution

of

to

that

order.

In

the

"Claim #

Division

of

1,"

Albritton contends

Child

plaintiff's property,

Support

moved

that

to

" [o]n

have

05-10-2013,

all

of

the

assets and/or money withheld pursuant to

^ "No State shall . . . deprive any person of life, liberty,
or property,
amend.

XIV,

without due process
§ 1.

of

law .

.

.

U.S.

Const,

an order to withhold issued" to be served on him.
Ms.

Whitlow

receive

signed

the

for

the

order until

notice,

but

over sixty days

delivered it to him on August 22, 2013.
that he was never properly served.

Albritton

(Id.)

[he]

Snead

''This violated The

["VDOC"]" policy that states

Albritton claims that his

to the fact that

to

Albritton claims

mail should only be held for twenty-four hours.
omitted).)

failed

later when Ms.

(Id.)

Virginia Department of Corrections

(Compl. 3.)^

(Id.

(emphasis

"rights were violated due

was never given a chance to appeal this

order, which is a violation of plaintiff's due process."

(Id.)

In ''Claim # 2," Albritton alleges that " [o] n 8-19-2013, the
Fiscal Technician

placed

$3,767.42

[Albritton's]
This

(Ms.

was

Snead)

into

a

more

week .

of
.

.

than

the

such

amount

account,

."

(Id.)

§

stated

34-29

individual's

(Id.

at 4.)

should have only sent
account.

reserve

trust account was depleted to a

violation of VA Code Ann

percent

at Halifax Correctional Unit #23

.

.

in

.

meaning

that

balance of

zero.

notice,

disposable

or 65%,

well

which reads;

earnings

Albritton contends

$2,041.06,

as

as

a

Sixty-six

for

the

that Ms.

Snead

of Albritton's

trust

"Plaintiff's rights were violated due to the

^ The Court employs the pagination employed by the CM/ECF
docketing system for citations to the Complaint.
corrects the capitalization in quotations from
Complaint.

The Court
Albritton's

fact that his account was wrongfully depleted, not in compliance
with the Code of Virginia."
In

Snead .

"Claim

.

claims

or

Savings

that

"Ms.

court

that

the

ordered

from

funds
or

its

are

fees

.

violated

Procedure

[his]

that

.

."

by

court

Albritton

removing

the

in order to pay

"[T]he

plan are

garnishments,

funds in

for

(Id.)

policy

(Id.)

savings

mandatory

contract,

.

"Ms.

802.2

available

savings account

in the

(Id.)

not

this

Child Support."

Virginia does not."

"breached

contends

Operating

Account

Snead

$627.33

Division of

states

[VDOC]

other mandatory

balance of
the

Albritton

Except for balances in excess of $1,000,

offender's

ordered

3,"

. violated

which reads:
an

#

Id.

[VDOC]

exempt

while

the

policy

from any
Code

of

Albritton claims that the VDOC has

in

which

every

qualifying

offender

housed within

[VDOC] had to sign" because the VDOC policy states

that

plans

savings

(Id.)

are

Albritton also

contends

plaintiff

was

violated,

statutes]

.

.

.

which
General

was

explains

answered

instructed

Albritton's

in

from

garnishment

up

"[t]he due process

accordance

with

to

$1000.

[rights]

[various

of

Virginia

and the maximum amount allowed for garnishment

against any individual."

Albritton

exempt

regular

by
her

(Id.)

that

Ms.
to

grievance

he

filed

Snead
deduct

"came

an

stating
funds.

informal

that

the

(Id.

back unfounded."

complaint

Attorney
at

4-5.)

(Id.

at

5.)

Albritton tried to file an appeal,

however,

Mr.

Townsend

gave Albritton the incorrect address so the appeal was denied as
untimely.

process

(Id.)

Albritton claims Mr. Townsend violated his due

rights

by

providing

Albritton

according to VA DOC 866.1 (Grievance)."

"false

information

(Id.)

Albritton contends that Harold Clark personally knew about

the purported violations because Albritton wrote the Honorable

Bobby

Scott

who

forwarded

Albritton's

letter

to

Clark,

and

"[t]his clearly makes him directly liable in his failure to act
.

.

.

(Id.)

Albritton

demands

monetary

$3,767.42 and injunctive relief.

III.

In order to state a

damages

in

the

amount

of

(Id. at 6.)

ANALYSIS

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.

See Dowe v.

Total

Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658
Cir. 1998)

(citing 42 U.S.C. § 1983).

(4th

First, Albritton fails to

plausibly suggest that Mr. Townsend violated his constitutional
rights.

Because

"there

is

no

participate in grievance proceedings,"
72,

75

(4th Cir. 1994)

constitutional

right

Adams v. Rice,

(citing Flick v. Alba,

to

40 F.3d

932 F.2d 728,

729

(8th Cir.

1991)),

Mr.

Townsend' s provision of the wrong address

to mail an appeal of a

grievance fails

to state a

due process

claim.

Albritton

process

when

rights,

Support

claims

Virginia

complying

Child

when

next

with

a

laws,

The

and

408 U.S.

564,

569

VDOC

from

Process

an

violated

Operating

order

Due

action deprives

liberty or property interest.
Roth,

Defendants

withholding

Services.

government

that

the

Clause

individual

of

his

due

Procedures

Division
applies

a

of

only

legitimate

Bd. of Regents of State Colls, v.

(1972) .

The first step in analyzing a

procedural due process claim is to identify whether the alleged

conduct affects
F.3d 500,
not

502

a

(4th Cir.

indicate

deprivation
contends

that

of

that

protected interest.
1997)

(citing cases).

Defendants'

any

liberty

Defendants

Ms.

inmate

trust

First,

the

and

savings

actions

Snead,

in the

Whitlow,

form of

without

120

Albritton does

Instead,

Ms.

account,

Smith,

resulted

interest.

Clark deprived him of property,

his

Beverati v.

in

the

Albritton
and

Harold

$3,767.42

due

from

process

of

law.

negligent

act

Due

of

state

property.

Daniels

Moreover,

Virginia's

remedies

Process

forecloses

v.

Clause

official

Albritton's
8

not

causing

Williams,

provision

is

474

of
due

implicated

unintended

U.S.

327,

adequate
process

328

by

loss

a

of

(1986).

post-deprivation
claim

for

the

deprivation of property.

(JCC/JFA) ,

2012

Henderson v.

n.7

(W.D.

Va.

(1984)
to

Jan.

of

are

No.

.

23,

.

.

at

*6-7

(E.D.

7; 07-cv-00266,

2008).

property

provided

remedies

1895793,

Virginia,

deprivations
Clause

WL

See id.; Wilson v. Molby, No.

"do

available."

23,

2012);

2008 WL 204480,

at *10

Negligent

not

that

Va.

violate

adequate

Hudson

v.

May

I:12cv42

and

[the

state

Palmer,

intentional

Due

Process]

post-deprivation

468

U.S.

517,

533

(finding due process satisfied by post-deprivation remedy

redress

intentional

destruction

of

personal

property

by

prison guard during a shakedown).

Virginia

has

provided

adequate

post-deprivation

for deprivations caused by state employees.
Tort

Claims

damages

Act,

for

Virginia

"negligent

acting within the

195.3 (West 2015).^

or

scope of

has

waived

wrongful"
employment.

Under the Virginia

sovereign
acts

remedies

of

Va.

immunity

state

for

employees

Code Ann.

§

8.01-

The United States Court of Appeals for the

Fourth Circuit has held that

the Virginia Tort Claims Act and

Virginia tort law provide adequate post-deprivation remedies for

torts committed by state employees.
772 F.2d 75,

a

77-78

(4th Cir.

1985).

See Wadhams v.

Procunier,

Because the availability of

tort action in state court fully satisfies the requirement of
" [T] he

Commonwealth

shall

be

liable

for

claims

for

money. .
. on account of damage to or loss of property or
personal injury or death caused by the negligent or wrongful act

or omission of any employee while acting within the scope of his
employment . . . ."
Va. Code Ann. § 8.01-195.3 (West 2015).

a

meaningful post-deprivation process,

claim

for

Amendment.

2008

the

loss

See

WL

of

Wilson,

204480,

at

his

property

2012

*10

Albritton cannot state a

WL

n.7.

under

1895793,

at

the
*6-7;

Accordingly,

Fourteenth
Henderson,

Albritton's

due

process claims will be dismissed with prejudice.
Generally,
claims

if

the

a

Court

federal

United Mine Workers v.
the

Court

claim,

dismisses

to

the

claims

Gibbs,

the

extent

should dismiss
are

dismissed

383 U.S.

federal

715,

claim

Albritton

supplementary state
before

726

for

raises

trial.

(1966) .

failure

cognizable

to

law
See

Because
state

state

a

law

claims, they will be dismissed without prejudice.

Accordingly,
dismissed.

Albritton's

claims

and

action

will

Clerk

is

directed

to

send

§ 1915(g).
a

copy

of

the

Memorandum

Order to Albritton.
It

be

The Clerk will be directed to note the disposition

of the action for purposes of 28 U.S.C.
The

the

is

so ORDERED

/s/
Robert E. Payne
Senior t&iited States District Judge

Richmond, Virginia
Date:

10