Birdsong v. Ponton et al

Filing 18

MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 11/13/2015. (sbea, )

1-^

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

NOV I 3 2rc
CLERK, U.S. niSTRICT COURT
RLCt-;i/iCND, VA

CHARLES A. BIRDSONG,

Plaintiff,
V.

Civil Action No. 3:14CV702

HENRY .1. PONTON, et al..
Defendants.
MEMORANDUM OPINION

Charles A. Birdsong, a Virginia prisoner proceeding pro se, submitted this civil action

pursuant to 42 U.S.C. § 1983.' The matter is before the Court for evaluation pursuant to 28
U.S.C. §§ 1915(e)(2) and 1915A.
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

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 "'an indisputably meritless legal theory,'" or claims

where the "'factual contentions are clearly baseless.'" Clay v. Votes. 809 F. Supp. 417,427

' 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.

(E.D. Va. 1992) (quoting Neilzke 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).

"A motion to dismiss 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 ofN.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 viewed in the light most favorable to the
plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980
F.2d at 952. This principle applies only 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. Iqbal, 556 U.S. 662,
679 (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 All. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (second alteration in original) (quoting Conley v. Gibson, 355 U.S. 41,

47 (1957)). Plaintiffs cannot satisfy this standard with complaints containing only "labels and
conclusions" or a "formulaic recitation of the elements of a cause of action." Id. (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." Id. "A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged." Iqbal, 556 U.S. at 678 (citingBellAll. Corp., 550 U.S. at 556). In
order for a claim or complaint to survive dismissal for failure to state a claim, the plaintiffmust

"allege facts sufficient to stateall the elements of [his or] her claim." Bass v. £/. DuPont de
Nemours c& Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d

193, 213 (4th Cir. 2002); lodice v. UnitedStates, 289 F.3d 270, 281 (4th Cir. 2002)). Lastly,

while the Court liberally construespro se complaints, Gordon v. Leeke, 51A F.2d 1147, 1151 (4th
Cir. 1978), it will not act as the inmate's advocate and develop, sua sponte, statutory and
constitutional claims that the inmate failed to clearly raise on the face of his complaint. See

Brock V. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J., concurring); Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
II.

SUMMARY OF ALLEGATIONS AND CLAIMS

On October 18,2012, Birdsong was charged with a violation of Offense Code 138—
Breach or Attempt to Breach the Security Perimeter with Contraband. (Compl. ^ 12, ECF No. I;

see Mem. Supp. Compl. Ex. 1, at 2, ECF No. 2-1.) On November 2, 2012, he was charged with
a violation of Offense Codes 131 and 198A—Conspiracy to Commit/Possession of
Communication Devices. (Compl. ^ 12; see Mem. Supp. Compl. Ex. 1, at 1.) Birdsong alleges
that he was also charged with a violation of Offense Codes 198A/122A on November 2,2012.
(Compl. ^ 12.) He was found guilty of all offenses. (5ee id. ^ 13.) As a result, he received time
in segregation, lost good time credits, and was transferred to a "[s]uper [m]aximum [p]rison."
ild.)

Subsequently, Birdsong requested appeal packages for the institutional convictions. (Id.)

He alleges that on December 19, 2012, Correctional Officer Yeboah served him an appeal

package for Offense Code 138, but not for Offense Codes 198A/131 and 198A/122A. {Id. 1115.)
Birdsong claims that he only signed for an appeal package for Offense Code 138. {Id.)
On December 25, 2012, Birdsong submitted an Informal Complaint, alleging that he

never received appeal packages for Offense Codes 198A/131 and 198A/122A. {Id. ^ 16.) On
January 2,2013, Officer Johnson responded, informing Birdsong that Birdsong had, in fact,
received the appeal packages. {Id. ^ 17.) On January 4, 2013, Birdsong submitted a regular

grievance concerning the issue. {Id. ^ 18.) He received a response on February 13,2013. {Id.

II 19.) The response stated that Birdsong received appeal packages for Offense Codes 131/198A
and 138 on December 19, 2012, and that Officer Yeboah signed to witness Birdsong's signatures

for those packages. {Id.) The response also indicated that an investigation revealed that
Birdsong never received an appeal package for the charge under Offense Code 122A/198A;
therefore, expungement of the charge would be ordered. {Id.)
On February 13, 2013, Birdsong appealed to the Regional Administrator. {Id. ^ 20.) He
received the Regional Administrator's response, upholding the decision, on February 22,2013.
{Id. ^ 21.) Birdsong alleges that attached to the response was a Disciplinary Hearing Disposition
form altered to show that Birdsong had received an appeal package for Offense Codes 198A/131.
{Id.

22, 24.) On March 3, 2013, Birdsong sent a notarized complaint to Warden Ponton and

Director Clarke regarding the allegedly altered form. {Id. ^ 23.) On March 26,2013, Birdsong
was informed that his grievance did not meet the criteria for a Level III response. {Id. ^ 25.)
The Court construes Birdsong's Complaint to assert the following claims:

Claim One:

Defendants^ violated Birdsong's Fourteenth Amendment^ right to
due process when they failed to provide him with an appeal

^The named Defendants are: Henry Ponton, Warden of Nottoway Correctional Center
("NCC"); D. Johnson, a Correctional Officer and Hearing Officer at NCC; A. James, Grievance
Coordinator at NCC; S. Yeboah, a Correctional Officer at NCC; G. Robinson, A. Bryant, and

package for his institutional convictions which resulted in (a)
placement in segregation, (b) loss of good time credits, and (c) a
transfer to a higher security prison.

Claim Two:

Defendants violated Birdsong's Eighth Amendment'* rights by (a)
forging the Disciplinary Hearing Disposition form, and (b)
transferring him to a higher security institution.

Birdsong seeks declaratory and injunctive relief as well as damages. {Id. 131.) For the reasons
set forth below, Claims 1(a), 1(b), 2(a), and 2(b) will be DISMISSED. The Court will ORDER
service of Claim 1(c) on Defendants.
III.

DUE PROCESS CLAUSE

The Due Process Clause applies when government action deprives an individual of a
legitimate liberty or property interest. See Bd. ofRegents ofState Colls, v. Roth, 408 U.S. 564,

569-70 (1972). Thus, the first step in analyzing a procedural due process claim is to identify

whether the alleged conduct affects a protected liberty or property interest. Beverati v. Smith,
120 F.3d 500, 502 (4th Cir. 1997) (citations omitted).
To establish a state-created liberty interest, Birdsong "must make a threshold showing

that the deprivation imposed amounts to an 'atypical and significant hardship' or that it
'inevitably affect[s] the duration of his sentence.'" Puranda v. Johnson, No. 3:08CV687,2009
WL 3175629, at *4 (E.D. Va. Sept. 30, 2009) (alteration in original) (quoting Sandin v. Conner,
515 U.S. 472,484,487 (1995)). If Birdsong makes this threshold showing, he must then identify

Gray Bass, Regional Administrators for the Virginia Department of Corrections ("VDOC"); and
Harold W. Clarke, Director of the VDOC.

^"No State shall... deprive any person of life, liberty, or property, without due process
of law...." U.S. Const, amend. XIV, § 1.

^"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted." U.S. Const, amend. VIll.

the state regulatory or statutory language that creates a protected liberty interest in remaining free
from such confinement. See id

A.

Placement in Segregation

In Claim 1(a), Birdsong alleges that his right to due process was violated when

Defendants failed to provide him with an appeal package for one of his institutional convictions,
which resulted in Birdsong's placement in segregation. (Compl. ^ 13.) Birdsong fails to allege
facts that plausibly suggest that his placement in segregation amounted to an "'atypical and
significant hardship.'" Puranda, 2009 WL 3175629, at *4 (quoting Sandin, 515 U.S. at 484,
487); see Knight v. Johnson, No. 3:10CV648, 2011 WL 4101664, at *4-5 (E.D. Va. Sept. 14,
2011) (citation omitted) (explaining that "[p]lacement in a higher security classification or a
higher security institution does not impose an atypical and significant hardship"). Moreover,

Birdsong "[does] not enjoy a procedural due process right to an appeal." Coor v. Stansberry,
No. 3:08CV61,2008 WL 8289490, at *2 (E.D. Va. Dec. 31, 2008) (citing Wolff, 418 U.S. at
561-1V, Johnson v. Goord, 487 F. Supp. 2d 377, 386 (S.D.N.Y. 2007)); Puranda, 2012 WL

2311844, at *4 (concluding same). Accordingly, Claim 1(a) will be DISMISSED.
B.

Loss of Good Time Credits

In Claim 1(b), Birdsong asserts that his inability to appeal his institutional convictions

resulted in the loss of good time credits. (Compl. ^ 13.) To the extent Birdsong alleges that

prisonofficials revoked vested good time credits, his claim does implicate a protected liberty

interest. Sciolino v. City of Newport News, Va., 480 F.3d 642, 653 n.9 (4th Cir. 2007) (citing
WolffV. McDonnell, 418 U.S. 539, 560-61 (1974)). Nevertheless, the Constitution only
guarantees the following minimal process prior to revoking such credits:

(1) an impartial tribunal; (2) written notice of the charges prior to the hearing; (3)
an opportunity to call witnesses and present documentary evidence; (4) aid from a

fellow inmate or staff representative if the issues are complex; and, (5) a written
statement by the fact finder describing the evidence relied upon and the reasons
for taking disciplinary action.
Coor, 2008 WL 8289490, at *2 (citing Wolff, 418 U.S. at 563-71). Birdsong does not allege that

he was deprived ofany of these procedural protections.^ Instead, he claims that he was denied
his right to appeal. Again, Birdsong "[does] not enjoy a procedural due process right to an

appeal." Id. (citing Wolff, 418 U.S. at 563-71; Johnson v. Goord, 487 F. Supp. 2d 377, 386
(S.D.N.Y. 2007)); Puranda, 2012 WL 2311844, at *4 (concluding same). Accordingly, Claim
1(b) will be DISMISSED.

C.

Transfcr to Higher Security Prison

In Claim 1(c), Birdsong alleges that his due process rights were violated when
Defendants failed to provide him with an appeal package for one of his institutional convictions,
which resulted in a transfer to a higher security prison. (Compl. H 13.) Birdsong alleges that he
was transferred to a "Super Maximum Prison." {Id.) He contends that this transfer placed him
"in a hostile environment around violent ofTenders[,] [w]hich ultimately result[ed] in stress,
depression, deprived of ability to see family, loss of mental focus ...." {Id. ^ 32.)
First, the Court believes that Birdsong only intends to bring a due process challenge on

the ground that Defendants inhibited his ability to appeal his institutional conviction. As
previously explained, Birdsong simply "[does] not enjoy a procedural due process right to an

^Birdsong does assert that he did not receive written notice pursuant to the Virginia
Department of Corrections Operating Procedures "before being deprived of rights, privileges,
disciplinary hearing, appeals, transfers, etc." (Mem. Supp. Compl. at 10.) However, this does
not equal an assertion that he was not provided written notice of the charges prior to his
institutional hearing. Birdsong's own submissions indicate Birdsong received notice of the
charges prior to the hearing. {See Mem. Supp. Compl. Ex. 1, at 1-2.) Moreover, violations of
prison operating procedures do not implicate due process rights and are not cognizable under
§ 1983. See Riccio v. Cty. ofFairfax, 907 F.2d 1459, 1469 (4th Cir. 1990); Puranda v. Hill, No.
3:10CV733-HEH, 2012 WL 2311844, at *5 (E.D. Va. June 18, 2012).

appeal." Coor, 2008 WL 8289490, at *2 (citing Wolff, 418 U.S. at 563-7 \; Johnson, 487 F.
Supp. 2d at 386); Puranda, 2012 WL 2311844, at *4 (concluding same). However, to the extent

he alleges he was deprived of some procedural protection prior to his transfer to the alleged
"supermax" prison, the Court acknowledges that Birdsong may have a liberty interest, protected
by the Fourteenth Amendment's Due Process Clause, in avoiding assignment to a "supermax"

prison. See Wilkinson v. Austin, 545 U.S. 209, 223-24 (2005) (finding that inmates in Ohio had
a liberty interest in avoiding transfer to Ohio State Penitentiary, a "supermax" facility). Thus,
the Court finds that Birdsong alleges sufficient facts to make out a claim that Defendants
violated his due process rights by transferring him to a "super maximum prison," without
appropriate procedural safeguards.
IV.

EIGHTH AMENDMENT

To make out an Eighth Amendment claim, an inmate must allege facts that indicate (1)

that objectively the deprivation suffered or harm inflicted "was 'sufficiently serious,' and (2) that
subjectively the prison officials acted with a 'sufficiently culpable state of mind.'" Johnson v.
Ouinones, 145 F.3d 164, 167 (4th Cir. 1998) (quoting Wilson v. Seiter, 501 U.S. 294, 298

(1991)). Under the objective prong, the inmate must allege facts that suggest that the deprivation

complained of was extreme and amounted to more than the "'routine discomfort'" that is '"part
of the penalty that criminal offenders pay for their offenses against society.'" Strickler v.
Waters, 989 F.2d 1375, 1380 n.3 (4th Cir. 1993) (quoting Hudson v. McMillian, 503 U.S. 1, 9
(1992)). "In order to demonstrate such an extreme deprivation, a prisoner must allege 'a serious

or significant physical or emotional injury resulting from the challenged conditions.'" De 'Lonta
V. Angelone, 330 F.3d 630, 634 (4th Cir. 2003) (quoting Strickler, 989 F.2d at 1381).

The subjective prong of a deliberate indifference claim requires the plaintiffto allege

facts that indicate a particular defendant actually knewof and disregarded a substantial risk of
serious harm to his person. See Farmer v. Breman, 511 U.S. 825, 837 (1994). "Deliberate
indifference is a very high standard—a showing of mere negligence will not meet it." Grayson
V. Peed, 195 F.3d 692,695 (4th Cir. 1999) (citing Estelle v. Gamble, 429 U.S. 97,105-06
(1976)).

[A] prison ofTicial cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the official knows of
and disregards an excessive risk to inmate health or safety; the official must both
be aware of facts from which the inference could be drawn that a substantial risk

of serious harm exists, and he must also draw the inference.

Farmer, 511 U.S. at 837. Farmer teaches "that general knowledge of facts creating a substantial
risk of harm is not enough. The prison official must also draw the inference between those
general facts and the specific risk of harm confronting the inmate." Quinones, 145 F.3d at 168

(citing Farmer, 511 U.S. at 837); see Rich v. Bruce, 129 F.3d 336, 338 (4th Cir. 1997) (stating
same). Thus, to survive a motion to dismiss, the deliberate indifference standard requires a
plaintiff to assert facts sufficient to form an inference that "the official in question subjectively
recognized a substantial risk of harm" and "that the official in question subjecfively recognized
that his actions were 'inappropriate in light of that risk.'" Parrish ex rel. Lee v. Cleveland, 111
F.3d 294, 303 (4th Cir. 2003) (quoting Rich, 129 F.3d at 340 n.2).
A.

Disciplinary Hearing Disposition Form

In Claim 2(a), Birdsong asserts that, by altering the Disciplinar>' Hearing Disposition
form to state that Birdsong had received his appeal packages. Defendants violated his Eighth
Amendment right to be free from cruel and unusual punishment. (Compl. ^ 32.) Birdsong
alleges that Defendants subjected him to cruel and unusual punishment because he was "placed

in segregation/isolation; denied visits; phone privilege; exercise; law library [access]; schooling;
loss of good time credit; increase in security level; and ultimately transfer[red] to supermax

prison." (Mem. Supp. Compl. at 13-14.) However, Birdsong's complaints about the conditions
of his confinement amount to no more than "'routine discomfort [that] is part of the penalty that

criminal offenders pay for their offenses against society.'" Strickler, 989 F.2d at 1380 n.3

(quoting Hudson, 503 U.S. at 9). As to the objective component, Birdsong fails to allege that he
sustained any injury, much less a "serious or significant emotional injury as a result of these
conditions." Id. at 1381. For this reason alone, his claim should be dismissed. See DeBlasio v.

Johnson, 128 P. Supp. 2d 315, 325-26 (E.D. Va. 2000) (finding that a loss of recreation,

telephone, canteen, and visitation privileges upon placement in segregation does not violate the
Eighth Amendment). Moreover, Birdsong fails to allege facts that suggest that Defendants knew
of and disregarded a substantial risk of serious harm to Birdsong from the conditions of which he
complains. Accordingly, Claim 2(a) will therefore be DISMISSED.
B.

Transfer to Higher Security Prison

In Claim 2(b), Birdsong contends that Defendants violated his Eighth Amendment rights
by transferring him to a higher security institution. In sum, Birdsong alleges that Defendants
transferred him to a "Super Maximum Prison in a hostile environment around violent
offenders[,] [w]hich ultimately result[ed] in stress, depression, deprived of ability to see family,
loss of mental focus

" (Compl. ^ 32.) Birdsong's vague allegation fails to state an Eighth

Amendment claim.

Birdsong alleges neither a serious or significant emotional injury nor deliberate

indifference by Defendants. While the conditions at Red Onion State Prison "may be
inconvenient and uncomfortable, [Birdsong] has not alleged anything to suggest that his living

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conditions violate contemporary standards of decency." Canada v. Ray, No. 7:08cv00219, 2010
WL 2179062, at *3 (W.D. Va. May 28,2010) (rejecting plaintiffs claim that being housed at
Red Onion State Prison for nine years violated his Eighth Amendment rights). Accordingly,
Claim 2(b) will be DISMISSED.
V.

CONCLUSION

Claims 1(a), 1(b), 2(a), and 2(b) will be DISMISSED. The Court will continue to process
the action with respect to Claim 1(c).

An appropriate Order will accompany this Memorandum Opinion.

ificer

Senior U. S. District .ludge

Richmond, Virginia

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