Sullivan v. Younce et al

Filing 51

MEMORANDUM OPINION. See for complete details. It is so ORDERED. Signed by District Judge Robert E. Payne on 02/16/2017. (mailed copy to pro se plaintiff) (nbrow)

~

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

IE

~

~

FEB

I 6 20!7

-·-·-··· ______ _J

~

CLERK, U.S. DI~,•,:;,,~: ;_;0~ -1T
RICHlv'iOhD. v'f\
~---

Plaintiff,

v.

Civil Action No. 3:15CV10

R.W. YOUNCE, et al.,
Defendants.

MEMORANDUM OPINION
Theodore Sullivan,
in forma pauperis,
matter proceeds
ECF No.

1

30)

on

a Virginia inmate proceeding pro se and

filed this
the

42 U.S.C.

Particularized

§

1983 action. 1

Complaint

The

("Complaint,"

alleging that Defendants 2 violated his

First 3 and

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.

R.W. Younce is the former Warden of the Greensville
Correctional Center ( "GCC" ) .
( Compl . ~ 1 . )
Eddie Pearson is
the farmer Lead Warden of GCC.
(Id. ~ 2 . )
Wendy S . Hobbs was
the
Eastern Regional
Administrator.
(Id.
~
3.)
Lt.
Investigator Harrison was an institutional investigator at GCC
who has since retired.
(Mero. Supp. First Mot. Dismiss 1 n. 1 &
2, ECF No. 36.)
Sgt. Medilia was a correctional officer at GCC.
(Id. at 2.)
The Court corrects the spelling of the Defendants'
names to what is reflected in the Motion to Dismiss.
2

I
f

'

Fourteenth4 Amendment rights and his rights under the Religious
Land Use and Institutional Persons Act

( "RLUIPA") . 5

The matter

is before the Court on the Motion to Dismiss filed by Defendants
R.W. Younce, Sgt. Medilia, and Wendy S. Hobbs

("First Motion to

Dismiss," ECF No. 35), and a separate Motion to Dismiss filed by
Defendant Lt. Investigator Harrison ("Second Motion to Dismiss,"
ECF
§

No.

1915A.

reasons

47) , 6

and

the

Court's

obligations

Sullivan has responded.
set

for

below,

the

Court

under

28

(ECF Nos. 45, 50.) 7
will

grant

the

U.S.C.
For the

Motions

to

"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof . . . . "
U.S. Const. amend. I.
3

"No State shall
. . deprive any person of life, liberty,
or property, without due process of law . . . . " U.S. Const.
amend. XIV, § 1.
4

5

2

u.s.c.

§

2000cc-l(a).

Both Motions to Dismiss are substantially similar, thus,
the Court addresses both simultaneously in this Memorandum
Opinion.
6

In his two Replies to the Motions to Dismiss, Sullivan
attempts to allege new facts and provide evidence to correct the
deficiencies
in
his
Complaint
identified
by
Defendants.
Sullivan may not do so.
"[I]t is axiomatic that a complaint may
not be amended by the briefs in opposition to a motion to
dismiss.
To hold otherwise would mean that a party could
unilaterally amend a complaint at will, even without filing an
amendment, and simply by raising a point in a brief."
Morgan
Distrib. Co. v. Unidynamic Corp., 868 F.2d 992, 995 (8th Cir.
1989)
(internal citations omitted)
(internal quotation marks
omitted).
Nevertheless, the Court's review of the new facts
alleged in the Replies fails to alter the conclusion that
Sullivan fails to state a claim upon which relief can be
granted.
Thus, the Court considers the new facts alleged in the
Replies.
7

2

Sullivan's

Dismiss.

claims will be

dismissed

for

failure

to

state a claim for relief and as frivolous.

I.

STANDARD OF 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)
a

claim

on

which

§ 1915(e) (2);
includes

see

claims

"is frivolous" or ( 2)

relief

28

may

U.S.C.

based

upon

§

be

The

indisputably

u.s.c.

28

granted."

1915A.

"'an

"fails to state

first

standard

meritless

legal

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

baseless.'"
1992)
The

Yates,

(quoting Neitzke v.

second standard is

809

F.

Williams,

the

Supp.

417,

490 U.S.

familiar

427

(E.D.

327

319,

standard for a

Va.

(1989)) .

motion to

dismiss under Fed. R. Civ. P. 12(b) (6).
"A

motion

sufficiency of

to
a

dismiss

complaint;

under

importantly,

contests surrounding the facts,
applicability of defenses."
980 F.2d 943,

952

Rule

12(b) (6)
it

does

the merits of a

tests
not

claim,

the

resolve
or the

Republican Party of N.C. v. Martin,

(4th Cir.1992)

(citing SA 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

3

most

favorable

to

the

plaintiff.
Cir.

Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th

1993) ; see also Martin,

applies

only

to

factual

considering

a

identifying

pleadings

conclusions,

motion

are

allegations,

to

dismiss

that,

not

This principle

980 F. 2d at 9S2.

can

because

entitled

to

however,

are

"a

to

choose

they

the

and

begin

no

court

more

assumption

of

by
than

truth."

Ashcroft v. Iqbal, SS6 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

notice of what the .

claim is and the grounds upon which it

rests.

Bell Atl. Corp. v. Twombly,

111

(second alteration in original)
U.S.

41,

47

(19S7)).

'give the defendant fair

SSO U.S.

S44, SSS

(quoting Conley v.

(2007)

Gibson,

3SS

Plaintiffs cannot satisfy this standard

with complaints containing only "labels and conclusions"

or a

"formulaic recitation of

the elements of a

Id.

Instead, a plaintiff must allege facts

(citations omitted) .

sufficient
level, "

"to raise a

id.

(citation

"plausible on its face,
at S70.
pleads

right

"A claim has
factual

reasonable

content

inference

misconduct alleged."

to relief above

omitted),
/1

cause of action."

stating

a

the speculative
claim

that

rather than merely "conceivable."

is
Id.

facial plausibility when the plaintiff
that

that
Iqbal,

allows

the

the

defendant

court
is

SS6 U.S. at 678
4

to

liable

draw

the

for

the

(citing Bell Atl.

Corp.,

550 U.S.

Therefore,

at 556).

in order for a

clai~,

complaint to survive dismissal for failure to state a
plaintiff

must

"allege

facts

sufficient

elements of [his or] her claim."
&

Co.,

324

F.3d 761,

Microsoft Corp.,

765

to

claim or

state

the

all

the

Bass v. E.I. DuPont de Nemours

(4th Cir.

309 F.3d 193,

213

2003)

(citing Dickson v.

(4th Cir.

2002);

Iodice v.

United States, 289 F.3d 270, 281 (4th Cir. 2002)).
Lastly,
complaints,
1978),

it

while
Gordon

does

not

the
v.

Court

Leeke,

act

as

liberally
574

the

F.2d

construes

1147,

inmate's

1151

advocate,

pro
(4th

sua

se
Cir.

sponte

developing statutory and constitutional claims the inmate failed
to

clearly raise

Carroll,

107

concurring) ;

on the

F.3d

241,

Beaudett v.

face

of

243

his

(4th

complaint.
Cir.

City of Hampton,

See Brock v.
(Luttig,

J. ,

F. 2d 1274,

1278

1997)
775

(4th Cir. 1985).

II.
In

December

December 26,

SUMMARY OF ALLEGATIONS AND CLAIMS

2013,

2013,

was

housed

in

the

GCC.

On

Defendant Medilia searched Sullivan's cell,

confiscated Sullivan's
Defendant Harrison.

Sullivan

"religious

(Compl.

~

6.)

literature,"

and gave

it

to

The purpose of removing the

items was to determine whether the items were gang-related "Five
Percent[er]" materials.

~~

(See id.

5

8-9, 60.)

Sullivan filed an informal complaint requesting the return
of his property.

(Compl.

,

8;

id.

Ex.

1,

at 1.)

Sullivan's

unit manager informed him that his property was turned over to
the investigator and that it was under review, and if there was
anything

that

was

not

considered

contraband,

it

would

(Compl.

returned to him at the conclusion of the investigation.
,

id.

9;

Ex.

Sullivan then submitted a

1. )

be

regular grievance

indicating that his religious materials were taken and he wanted
them returned to him.

(Compl.

,

id.

10;

Ex.

Assistant

2.)

Warden Carolyn Parker found Sullivan's grievance unfounded for
(Compl. , 11; id. Ex. 4.)

the same reasons as his unit manager.
Sullivan appealed that decision,
decision of Parker.

and Defendant Hobbs upheld the

(Compl. , 12; id. Ex. 5.)

On January 31,

2014,

Sullivan was transferred from GCC to

Keen Mountain Correctional Center ("KMCC") at the request of the
(Compl.

Eastern Region Administrator.
Sullivan

filed

several

informal

,

requests

complaint complaining about his transfer.
3.)

In his informal requests,

15;

id.
and

Ex.
one

informal

(See id. Ex. 6, at 1-

he complained that his security

level was too low for him to be transferred to KMCC.
at 2-3.)

Staff responded to Sullivan,

incorrect,

stating:

"you were

Classification Services.
houses

[Security

Level]

You
3

at 1.)

6,

explaining that he was

assigned to
are

and
6

4

(See id.

[Security

KMCC by Cent [ral]
Level]

offenders."

KMCC

3.

(Id.

at

3.)

Sullivan filed an informal complaint on March 7, 2014, that was
sent to the GCC grievance office, complaining that his "transfer
to K.M.C.C. was retaliation for the complaints and grievances I
wrote

(Id.

II

at

1.)

K.

Whitehead

responded

and

explained the following:
You were transferred to Keen Mountain on 1-31-14 at
the request of Eastern Region Administrator. While at
Greensville only one regular grievance was receipted
from you on 1-30-14
concerning confiscation of
religious property which was one day before your
transfer[;] therefore[,] it is highly unlikely your
transfer was retaliatory to grievance writing.
Sullivan

continued

to

file

informal

complaints

and

grievances regarding his transfer and the confiscation of his
property

throughout

2014.

confiscated property has

(Compl.
not

~~

16-37.)

been returned

to him.

Sullivan's
(Compl.

~ 50.)

Sullivan lists his claims as follows: 8
Claim One:

"Defendants Younce, Harrison, and Sgt. Medilia,
violated his
First Amendment
Right
Free
Exercise clause
to be allowed to have his
religious materials by the Nation of Islam
to meet his religious needs."
(Compl. 13.)

Claim Two:

"Defendants Younce, Harrison, and Sgt, Medilia
violated his rights under the Religious Land Use
and Institutionalized Person Act
to be
allowed his religious materials to meet his
religious needs."
(Id.)

The Court corrects the spelling and
quotations from Sullivan's Complaint.
8

7

capitalization in

Claim Three:

"Defendants Younce, Pearson, Harrison, and Sgt.
Medilia violated his Fourteenth Amendment Right (Id. )
to Equal Protection
•

Claim Four:

•

•

• II

"Defendants Younce, Pearson, and Hobbs, violated
his Fourteenth Amendment Rights
to the Due
Process Clause by transferring Plaintiff over
eight (8) hours away from his home and family as
a means of retaliation for filing his numerous
requests, letters, complaints, and grievances due
to
the
unlawful
taking
of
his
religious
material.
(Id.)
11

While

Sullivan

did

not

list

a

fifth

claim,

Defendants

have

generously construed Sullivan to raise the additional claim in
the body of his Complaint:
Claim Five:

Defendants Younce, Pearson, and Hobbs violated
Sullivan's due process rights by taking his
property from his cell.

Sullivan demands monetary damages and injunctive relief.

(Id.

at 33-34.) 9

Sullivan brings this action against Defendants in their
individual and official capacities. RLUIPA fails to authorize a
private cause of action for money damages against state
officials in their official or personal capacities.
Sossamon v.
Texas, 563 U.S. 277, 293 (2011) (holding that state officials
sued in their official capacities enjoy Eleventh Amendment
Immunity against RLUIPA claims for damages); Rendelman v. Rouse,
569 F.3d 182, 189 (4th Cir. 2009)
(concluding that, as an
exercise of Congress's spending clause authority, RLUIPA failed
to authorize claims for monetary damages against state officials
in their individual capacities) ; see Haight v. Thompson, 763
F.3d 554, 569-70 (7th Cir. 2014)
(concluding that, as an
exercise of Congress's authority under the Commerce Clause,
RLUIPA failed to authorize claims for monetary damages against
state officials in their individual capacities).
Accordingly,
Sullivan's demands for monetary damages with respect to RLUIPA
will be dismissed.
Thus, with respect to Claim Two, only
Sullivan's demand for injunctive relief remains.
9

8

III.

The

Federal

complaint

Rules

contain

"a

ANALYSIS

of

Civil

short

and

Procedure

plain

require

statement

showing that the pleader is entitled to relief."
P.

8(a)(2).

complaints,
1978),

While
Gordon

v.

should

Leeke,

liberally

574

F.2d

the

Fed. R.

construe

1147,

1151

claim
Civ.

pro

(4th

a

se

Cir.

"[p] rinciples requiring generous construction of pro se

complaints are not
Hampton,
not

courts

of

that

.

. without limits."

775 F. 2d 1274,

attempt

plaintiff."
2006) .

"to

1278

discern

Laber v.

(4th Cir.
the

Harvey,

Beaudett v.

1985) .

unexpressed

438 F.3d 404,

The Court need
intent

of

413 n.3

of course,

the

(4th Cir.

The Fourth Circuit has explained that "though

litigants cannot,

City of

[pro se]

be expected to frame legal issues

with the clarity and precision ideally evident in the work of
those trained in law, neither can district courts be required to
conjure up and decide issues never fairly presented to them."
Beaudett,

775 F.2d at 1276.

are not mind readers."
As
above

a
do

In other words,

Id. at 1278.

preliminary matter,
not

correspond

Sullivan's

with

the

delineated to support each claim.
Sullivan
Younce,

alleges
Pearson,

filing grievances.

a

"[d) istrict judges

due

process

and Hobbs

claims

facts

that

For example,
violation

as

Sullivan

forth
has

in Claim Four,

because

transferred him as

set

Defendants

retaliation for

The body of his Complaint that purportedly
9

corresponds to Claim Four, however, alleges that his due process
rights
~~

were

violated

71-72.)

Sullivan

"Retaliation"

(id.

when

his

later

at 25),

property

adds

an

was

entire

taken.

(Compl.

section

titled,

although he alleged no freestanding

claim of retaliation.

Liberal construction of a pro se pleading

does not mean that a

court

should invent

inadequately pled claim.

Instead,

master

and

of

his

responsible

complaint

for

articulating

cognizable claim."
Cir.

1998).

Davis v.

the

is,
the

in
facts

Scott,

facts

to remedy an

"plaintiff remains
the

end,

that

the

give

person

rise

157 F.3d 1003,

the

1006

to

a

(5th

Sullivan has had more than ample opportunity to

plead his claims.

Accordingly, the Court will not cull through

the allegations and supporting facts to create legal claims for
Sullivan.
A.

No Personal Involvement Alleged

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.

See Dowe v.

Total

Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th
Cir.

1998).

the

unconstitutional

theory of
662, 676

"Government officials may not be held liable for
conduct

of

respondeat superior."
(2009) (citations omitted).
10

their

subordinates

Ashcroft v.

Iqbal,

under

a

556 U.S.

"[A] plaintiff must plead

that each Government-official defendant,
own

individual

"Where a

actions,

through the official's

has violated the

Constitution."

complaint alleges no specific act or conduct on the

part of

the defendant and the complaint is

defendant

except

complaint

is

for

his

properly

name

appearing

in

even

dismissed,

F.2d

1206,

1207

Brzozowski v. Randall,
As

discussed

below,

(7th

Cir.

1974)

fails

the

caption,

312

to

the

the

liberal

Potter v. Clark,

(citing

281 F. Supp. 306,
Sullivan

silent as to the

under

construction to be given pro se complaints."
497

Id.

U.S.

(E.D.

allege

ex

rel.

Pa. 1968)).

any

personal

involvement in the deprivation of his rights by the majority of
the Defendants.
B.

In

First Amendment (Claim One)

Claim One,

Sullivan alleges

that

"Defendants

Younce,

Harrison, and Sgt. Medilia, violated his First Amendment Right Free

Exercise

clause

to

be

allowed

materials by the Nation of Islam .
needs."

to

have

his

religious

to meet his religious

(Compl. 13.)

As

an

initial

alleges

no

personal

matter,

Defendants

involvement

in

the

constitutional rights by Defendant Younce.

argue

that

deprivation

Sullivan
of

Sullivan fails

his
to

mention Defendant Younce in the body of his Complaint, much less
allege personal involvement in the deprivation of his religious
rights.

For the first time in his Reply, and in an attempt to
11

correct

the

deficiencies

identified

by

Defendants'

Motion to Dismiss with regard to Claim One,

in

Sullivan adds new

allegations that amend paragraph 48 of his Complaint.
Complaint,

Sullivan

searching

alleged

Sullivan's

cell,

that,

he

while

received

asking "Did you find anything yet?"

a

their

Sgt.
call

Medilia
on

~

(Comp 1.

In his
was

his

radio
In his

48 . )

Reply, Sullivan now contends that Sgt. Medilia received the call
from Defendant Younce and that Defendant Younce was in "direct
line

of

sight

of

[Sullivan]

when

he

stated

this,"

thereby,
(Reply

Defendant Younce had personal involvement in the search.
5, ECF No. 45.)

As discussed previously, a reply in response to

a motion to dismiss is not the proper place to allege new facts
to

correct

the

deficiencies

because Sullivan' s
the

Court

with

a

complaint.

Nevertheless,

First Amendment claim clearly lacks merit,

addresses

conjunction

in

any

its

claim

against

discussion

of

Defendant

Defendants

Younce

Harrison

in
and

Medilia.
To state a

First Amendment free exercise claim,

must allege

facts

belief

is

that

Harrison

and

that

suggest

religious

Medilia

(citing

2011

WL

Hernandez

"(1)

he

holds

in nature"

and

(2)

that

imposed

practice of his religion.
(CMH/JFA),

that

substantial

a

sincere

Defendants

burden

on

the

Whitehouse v. Johnson, No. 1:10cv1175

5843622,
v.

a

Sullivan

at

12

(E.D.

4 9O

Comm' r,

*4

U. S .

Va.
6 8 O,

Nov.
699

18,

2011)

( 19 8 9) ) .

"Government officials
exercise of

impose a

religion by

substantial burden on the

'put [ting]

free

substantial pressure on an

adherent to modify his behavior and to violate his beliefs.'"
Massenburg v. Adams, No. 3:08cv106, 2011 WL 1740150, at *4 (E.D.
Va.

May

5,

2011)

(alteration

quotation marks omitted)

in

original)

(some

internal

(quoting Lovelace v. Lee, 472 F.3d 174,

187 (4th Cir. 2006)).
Sullivan

"declares

that

he

practices

Islam

under

the

prescribed laws of his prophet The Honorable Elijah Muhammad,
and he also declares that the religious materials that
confiscated
members

of

[were]

[were]

the exact same religious materials that the

Nation of

Islam study

(Comp!.

II

,

42.)

Sullivan indicates that "[h] e is a true and devout Believer in
the teachings of Master Fard Muhammad,
Elijah Muhammad .

II

(Id.

,

and the Most Honorable

54.)

Thus,

the Court assumes

without deciding that Sullivan's religious beliefs are sincere.
Defendants argue that Sullivan fails to allege facts that
plausibly suggest
Medilia

that

intentionally

practice

his

either Defendant
deprived

religion.

Harrison or Defendant

Sullivan

"[O] nly

of

intentional

actionable under the Free Exercise Clause."
at 201.
denials
Clause."

Thus,
of

ability

to

conduct

is

Lovelace, 472 F. 3d

"[n]egligent acts by officials causing unintended

religious
Id.

his

rights

(citations

do

not violate

omitted) .
13

the

Sullivan

Free

Exercise

contends

that

Defendant Medilia took religious materials and his black history
books

from

Sullivan's

cell

because

they

were

suspected

Five

Percenter gang-related materials that are forbidden in the GCC.
(Compl. ~~ 43, 48.) 10

Sullivan suggests that Defendant Harrison

took the confiscated property immediately from Defendant Medilia
to determine whether the property was prohibited.
Here,

Sullivan

fails

to

Medilia "conscious [ly]
free

that

Defendants

or intentional [ly]
Lovelace,

exercise rights."

contrary,

assert

472

(Id.

49.)

Harrison

interfere [d]

F.3d at

~

or

with his
To the

201.

the record shows that Defendants Harrison and Medilia

took a variety of books and materials from Sullivan's cell, not
just religious materials.
because

they were

fails

to

with

free

§

1983."

allege

suspected gang-related materials.

anything more

exercise
Id. 11

Both Defendants took the materials

Thus,

rights,"

than
a

"a negligent

claim

"not

Sullivan

interference

actionable

under

Claim One can be dismissed on this basis

alone.
Even if Sullivan had alleged that the confiscation of his
religious property was an intentional act,
claim fails

to state a

claim for

relief.

the Court finds this
Sullivan fails

to

Sullivan himself labels these confiscated materials as
"my five percenter/ [Nation of Islam] material."
(Compl. Ex. 1.)
10

The Court finds
Defendant Younce if he
Sullivan's cell.
11

that a similar conclusion applies to
directed Defendant Medilia to search
14

allege that Defendants Harrison,
substantial

burden

on

his

Medilia,

ability

to

and Younce imposed a

practice

his

religion.

Sullivan has not alleged that Defendant Harrison's,

Medilia' s,

and Younce' s actions have put "substantial pressure" on him to
"modify his behavior and to violate his beliefs."
F.3d at 187.

Sullivan alleges at most, "Plaintiff declares that

being deprived of
Islam

and

religion

Lovelace, 472

his

these religious materials of the Nation of

religious

generally.

books,

This

he

placed a

could

not

practice

his

burden'

and

'substantial

placed pressure on the plaintiff to modify his behavior, which
( Compl . ,

violates his beliefs."

52 . )

Sullivan states nothing

more than the legal standard for a First Amendment claim with no
facts supporting his claim that his religion was substantially
burdened

by

"Threadbare
supported

Harrison,

Defendants

recitals

by

mere

of

the

elements

conclusory

Medilia,
of

a

statements"

or

cause

is

556

Twombly,

U.S.

550

allegations
Harrison,
rights.
Cir.

662,

U.S.

fail
and

678
544,

Medilia

see

555

to

Ashcroft v.

(citing Bell Atl.
(2007)).

action,

Corp.

Sullivan's

v.

vague

to plausibly suggest that Defendants Younce,

See Krieger v.

2012);

(2009)

of

insufficient

plausibly give rise to an entitlement to relief.
Iqbal,

Younce.

also

substantially
Brown,
Shabazz

496 F.
v.

Va.

burdened

his

App'x 322,
Dep't

of

religious

325-26

(4th

Corr.,

No.

3:10CV638, 2013 WL 1098102, at *6-9 (E.D. Va. Mar. 15, 2013).
15

Moreover,

Sullivan does not allege that he is prohibited

from engaging in the tenets of his religion including meeting
for

religious

study,

praying,

viewing

sermons,

religious diet,

or receiving new religious

See

2011

Whitehouse,

WL

5843622,

at

*4

eating

a

reading materials.
(holding

that

where

inmate may still engage in religious practices but "not through
his preferred vendor" and where inmate possesses the ability to
handwrite religious coursework instead of his preferred method
of typing,

inmate failed to allege a substantial burden on his

religion); cf. Coleman v. Governor of Mich.,
875-76 (6th Cir. 2011)

413 F. App'x 866,

(concluding that policies limiting access

to religious radio and television failed to substantially burden
religious

exercise

because

inmates

"may

receive

religious

literature via the mail and may receive visitors at the prison
to discuss

their religious beliefs");

Smith v.

U.S.

Congress,

No. 3:12CV45, 2015 WL 1011545, at *14-15 (E.D. Va. Mar. 6, 2015)
(concluding

that

substantially
access

to

prison's

burden

new

his

religious

single
religious
sermons

vendor

policy

exercise
when

available to engage in that practice) .

by

other

failed
denying

methods

to
him
were

Because Sullivan fails

to allege facts that show that Defendants Younce,

Medilia,

and

Harrison substantially burdened his practice, Sullivan states no
First Amendment claim.

Claim One will be dismissed.

16

C.

RLUIPA {Claim Two}

In Claim Two,
Harrison,

and

Sullivan contends

Sgt,

Medilia

violated

that

"Defendants Younce,

his

rights

under

Religious Land use and Institutionalized Person Act .
allowed his
(Id.)

religious materials

Sullivan

argues

that

religious materials and books
leaving

him

without

any

to meet his

the

. to be

religious needs."

"defendants

confiscated

his

[in violation of RLUIPA]

religious

materials

for

more

than

2

years and 4 months, and as of this day he has still not received
them

( Compl .

back."

injunctive relief,

, 84 . )

In

support

of

his

claim

for

Sullivan also states that "there needs to be

some type of criteria set out to distinguish the lessons of the
NOI from gang paraphernalia."

(Compl. , 93.)

In the Motion to Dismiss,

Defendants argue

fails to state a RLUIPA claim because:
any personal

involvement of

the

alternative,

(2)

to

Defendants Younce,

he

fails

Medilia,

his religious exercise;

and

(1)

that

he fails to allege

three Defendants;
allege

Sullivan

facts

and in the

suggesting

that

or Harrison intentionally burdened
( 3)

he fails to allege facts

that

plausibly suggest that the named Defendants have any involvement
in "enacting the policy Sullivan is presumptively challengingspecif ically,
possession

of

VDOC' s
'Five

zero tolerance policy with respect to the
Percenter'

17

materials

within

the

inmate

(Mem. Supp. First Mot. Dismiss. 15; see Mem. Supp.

population."

Second Mot. Dismiss 10.)
Defendants are correct in the first regard.
to mention Defendants Younce,

Harrison,

or Medilia in the body

of his Complaint much less allege personal
deprivation

of

his

"R.L.U.P.A."

a

materials

demonstrate

that

blind

Younce,

vague

on

,

his

85.)

allegation

Harrison,

under

that

is

confiscated

As

Defendants

insufficient

Defendants

failed to allege

Younce,

Medilia,

facts

or

to

or Medilia were personally

involved in the deprivation of his rights under RLUIPA.
Sullivan has

his

states

eye

(Compl.

II

such a

most,

Sullivan

turn [ed]

correctly assert,

involvement in the

At

rights.

section,

"defendants .
religious

religious

Sullivan fails

Thus,

plausibly indicating that

Harrison

violated

his

rights

under RLUIPA.
For the first time in response to the Motions to Dismiss,
Sullivan attempts to correct the deficiencies in his Complaint
and alleges that the individual Defendants were involved in the
deprivation of his rights.
third

argument,

Younce [,

Sullivan

and Harrison]

the VDOC no

Responding to Defendants' second and
states

that

Defendants

"Medilia

[,]

acted intentionally under the guise of

tolerance policy to deprive

Plaintiff of

certain

material that is known not to be 5% literature by those who have
been trained to recognize 5% literature."
18

(Reply 14,

ECF No.

4S; Reply 7,

Sullivan also claims that because

ECF No. SO.)

staff took his property, that included some religious material,
this

was

an

"'intentional

Plaintiff's religion."

burden

(See,

~,

on

the

free

exercise'

Reply 7, ECF No.

SO.)

of
The

Court need not address Defendants'

second and third arguments

because

facts

religious

Sullivan
exercise

fails
was

to

allege

indicating

substantially burdened

as

is

that

his

required

under RLUIPA. 12
To the extent that Sullivan argues that Defendants Younce,
Medilia,
materials

and

Harrison

applied

in violation of

the

RLUIPA,

VDOC

policy

Sullivan

fails

against
to

gang

state

a

claim for relief for the reasons stated below.
1.

Whether the Burdened Activities Are A Religious
Exercise

RLUIPA provides, in pertinent part, that:
No government shall impose a substantial burden
on the religious exercise of a person residing in or
confined to an institution .
. unless the government
demonstrates that imposition of the burden on that
person( 1)
is
in
furtherance
of
a
compelling
governmental interest; and
First, to the extent that Sullivan argues that the VDOC
anti-gang policy violates his rights under RLUIPA, he fails to
allege that Defendant Younce, Medilia, or Harrison, as employees
of the GCC, had any role in adopting, enacting, or amending the
global Virginia Department of Corrections ( "VDOC") policy that
presumably applies not just to GCC, but to all VDOC facilities.
See Lovelace, 472 F.3d at 193 (holding that "there is a claim
only against" the individual in his official capacity "who
issued
the
challenged
policy
as
an
official
of
the
Commonwealth").
12

19

(2) is the least restrictive means of furthering
that compelling governmental interest.
42

u.s.c.

facts

§

Thus,

2000cc-l(a).

to begin,

plausibly suggesting that

Sullivan must allege

Defendants'

policies

"substantial burden" on his religious exercise.
if Sullivan has met this
questions:

"(1)

and if so

(2)

the

a

In determining

Court must answer two

Is the burdened activity 'religious exercise,'

is the burden 'substantial'?"

393 F.3d 559,

567

197,

(4th

200-01

standard,

impose

Adkins v.

(5th Cir. 2004); see Couch v. Jabe,
Cir.

2012)

(employing

similar

Kaspar,
679 F.3d
two-part

inquiry) .
"RLUIPA defines

the

term

'religious

exercise'

broadly to

include 'any exercise of religion, whether or not compelled by,
or central to, a system of religious belief.'"
at 200

(quoting 42 U.S.C.

§

2000cc-5(7)(A)).

Couch, 679 F. 3d
Sullivan's claim

implicates one activity-his ability to possess religious reading
(Comp 1. , ,

materials.
of

religious

constitutes

exercise,

religious

5843622, at *3

83 - 84 . )

Given RLUIPA's broad definition

the

Court

exercise.

assumes
See

this

Whitehouse,

activity
2011

WL

(assuming inmate's enrollment in seminary course

constituted religious exercise for purposes of RLUIPA) .
2.

Sullivan Fails To Demonstrate A Substantial
Burden On His Religious Exercise

RLUIPA fails

to define the term substantial burden.

Couch, 679 F.3d at 200.

See

The United States Court of Appeals for
20

the

Fourth

Circuit

jurisprudence

determined

interpreting

the

that

Free

Supreme

Court's

Clause

Exercise

See Lovelace,

guidance on the issue.

the

provides
Thus,

472 F. 3d at 187.

the Fourth Circuit has explained that a substantial burden
is one that put[s] substantial pressure on an adherent
to modify his behavior and to violate his beliefs, or
one that forces a person to choose between following
the
precepts
of
h[is]
religion
and
forfeiting
[governmental]
benefits,
on
the
one
hand,
and
abandoning one of the precepts of h[is] religion . . .
on the other hand.
Couch,

679 F. 3d at 200

(quoting

Lovelace,

(alterations and omission in original)

472

F.3d

In

at 187).

conducting

the

substantial burden inquiry, the plaintiff "is not required .
to

[allege

facts

indicating]

that

required by or essential to his
Brown, 496 F. App' x 322, 325

[or her]

the

substantial

exercise

burden

(2005)).
test

at

religion."

(4th Cir. 2012)

Wilkinson, 544 U.S. 709, 725 n.13
minimum

the

issue

is

Krieger v.

(citing Cutter v.

Nevertheless,

requires

that

a

"at a
RLUIPA

plaintiff [allege facts indicating] that the government's denial
of

a

particular

religious . . . observance

inconvenience to one's religious practice."
F.3d 1255, 1278
v.

(11th Cir. 2007)

Town of Surfside,

was

more

than

Smith v. Allen, 502

(citing Midrash Sephardi,

366 F.3d 1214,

1227

an

(11th Cir.

Inc.

2004)) ; 13

In Sossamon v. Texas, 563 U.S. 277, 293 (2011) , the
Supreme Court abrogated Smith's ultimate holding that RLUIPA
allows for monetary damages against state officials acting in
their official capacity.
13

21

cf.

Krieger,

496

F.

App'x at 326

(affirming grant of summary

judgment where inmate failed to "show that the deprivation of an
outdoor worship circle and the requested sacred items modified
his

behavior

and

violated

Lovelace, 472 F.3d at 187)).

his

religious

beliefs"

(citing

Thus, no substantial burden occurs

if the government action merely makes

the

"religious exercise

more expensive or difficult," but fails to pressure the adherent
to violate his or her religious beliefs or abandon one of the
precepts of his religion.

Living Water Church of God v. Charter

Twp. of Meridian, 258 F. App'x 729, 739 (6th Cir. 2007).
Two

recent

cases

from

the

Fourth

Circuit

illustrate

plaintiff's responsibility with respect to alleging facts
plausibly suggest a substantial burden.
"testified that

the

primary religious

a

that

In Couch, the plaintiff
texts

of

Islam command

that he grow a beard and that the refusal to maintain a beard is
a sin comparable in severity to eating pork."
at

200.

The VDOC' s

grooming

Couch,

policy prohibited

679 F. 3d

inmates

from

growing beards and enforced this rule by placing a noncompliant
inmate in a program that "restricted or limited
access to personal property, movement rights,
and

associate

time."

Id.

with

at 199.

others,

recreation

time,

[the inmate's]

the right to eat
and

visitation

The Fourth Circuit concluded that VDOC' s

grooming policy and enforcement mechanism "fit squarely within
the

accepted

definition

of

'substantial
22

burden'"

because

it

placed

substantial

behavior

and

pressure

violate

his

on

the

plaintiff

beliefs.

Id.

at

to

modify

200-01

his

(citing

Warsoldier v. Woodford, 418 F.3d 989, 995-96 (9th Cir. 2005)).
In Krieger,
inmate

had

the Fourth Circuit declined to find that an

demonstrated

a

substantial

burden

where

prison

officials denied "his requests for an 'outdoor worship circle'
and certain 'sacred items' related to his religious practice of
Asatru."

Krieger, 496 F. App'x at 322.

The plaintiff "asserted

that deprivation of the outdoor worship circle would require him
to pray indoors, and that the 'Blot' ceremony is 'best performed
outdoors.'"
concluded

Id.
that

at 325
the

(emphasis added) .

mere

performing

the

substantial

burden

explanation

regarding

denial
ceremony

"Blot"
where

the

the

of

the

could

optimal
not

plaintiff

reason

The Fourth Circuit

"failed

for

demonstrate
to

why

indoor

Id.

compromise his religious beliefs."

manner

Similarly,

offer

worship

a
any

would

the inmate

failed to demonstrate a substantial burden with respect to the
denial

of

assertion"

additional
that

sacred

items

simply

"the sacred items were

'well-established rituals.'

/1

Id.

by

the

'necessary'

at 326.

"blanket

to perform

The Fourth Circuit

noted that plaintiff "did not identify those rituals, or explain
why the absence of the sacred items had an impact on the rituals
and violated his beliefs."

Id.

23

Krieger illuminates another consideration in conducting the
The availability to an inmate,

substantial burden inquiry.
the most general sense,

in

of other means to practice his or her

faith is not relevant to the RLUIPA substantial burden inquiry.
Al-Amin

v.

Shear,

"Nevertheless,
retains

courts

other means

activity,
denial

325

such as

of

the

Dep't

Mar. 15, 2013)

3:10CV638,

Thus,

F.

in

(4th

Cir.

2009).

whether

the

ceremony,

the

inmate

particular

2013

religious

in assessing whether a

method

for

engaging

WL 1098102,

at

that

Shabazz v.

substantial burden."

(citing Krieger,
413

193

consider

preferred

imposes a

Governor of Mich.,

190,

engaging

"Blot"

inmate's

Corr.,

App'x

properly

for

the

religious exercise
Va.

F.

*7

(E.D.

Va.

496 F. App'x at 326; Coleman v.

App'x 866,

875-76

(6th Cir.

2011)).

an inmate failed to demonstrate the denial of additional

group study time imposed a substantial burden upon his religious
exercise where prison officials already provided three hours of
group study and worship time and allowed inmate to study in his
cell.

See Van Wyhe v. Reisch,

2009) .

Similarly,

581 F.3d 639,

656-57

(8th Cir.

the United States Court of Appeals for the

Sixth Circuit concluded that prison policies which limited the
inmates'

access

to

religious

radio

and

television

failed to substantially burden the inmates'
because

the

inmates

"may receive

mail and may receive visitors at
24

religious

broadcasts

religious exercise
literature via the

the prison to discuss

their

religious beliefs."
below,

Coleman, 413 F. App'x at 876.

in light of the foregoing principles,

As explained

Sullivan fails to

allege facts that plausibly suggest any substantial burden upon
his religious exercise.
Sullivan fails

to allege facts

indicating that Defendants

placed a substantial burden on his religious exercise.
fails

to

Younce' s,
materials,

allege

facts

Harrison' s,

plausibly

Sullivan

suggesting
removal

or Medilia' s

that

suspected

of

Defendant

including his religious reading materials,

cell on one occasion,

placed "substantial pressure"

gang

from his
on him to

violate his religious beliefs or abandon one of the precepts of
his

religion.

Whitehouse,

2011

WL

5843622,

at

*4

(citing

Lovelace, 472 F.3d 187); cf. Living Water Church of God, 258 F.
App'x at 739.

At most, Sullivan alleges an inconvenience to his

religious exercise.
that

a

burden

exercise"

that

502 F. 3d at 1278

merely

"inconvenience

is

an

(explaining

on

religious

is not substantial) ; Living Water Church of God,

F. App'x at 739

difficult") .

materials.

the

"religious exercise more expensive or

Sullivan claims

prohibited

258

(no substantial burden occurs if the government

action merely makes

not

See Smith,

by [the

Thus,

VDOC

S~llivan

that
policy

the confiscated items were
that

forbids

gang-related

does not allege that he is unable to

have access to these religious materials, just that his personal
copies

were

taken

from

him.

Sullivan does
25

not

allege,

for

example,

that he is forbidden to acquire new religious reading

materials

or materials

from

another inmate, or read religious materials in the library.

See

Smith,

or books,

borrow religious

2015 WL 1011545,

books

Sullivan fails

at *14-15.

to allege

facts plausibly suggesting that Defendants Younce, Harrison, or
Medilia violated his rights under RLUIPA.

Cf. Heleva v. Kramer,

330

(depriving

F.

App'x

possessing
[inmate's]

406,

409

(3d.

literature

Cir.

2009)

"designed

faith in God"

to

was not a

uphold

and

inmate

of

strengthen

substantial burden because

inmate did not have to abandon the precepts of his religion and
was

not

pressured

Accordingly,

to

substantially

modify

his

behavior) .

to the extent that Sullivan even alleges a RLUIPA

claim against Defendants Younce, Harrison, or Medilia, he fails
to state a claim upon which relief may be granted.

Claim Two

will be dismissed.
D.

Equal Protection (Claim Three)

In Claim Three,
Pearson,

Harrison,

Amendment Right -

Sullivan alleges
and

Medilia

that Defendants Younce,

"violated

to Equal Protection clause -

equal treatment

(Compl. 13.)

II

Fourteenth

his

to be provided

In his section alleging

facts in support of his equal protection claim, Sullivan vaguely
contends
conduct]
continues

that

"defendants

on behalf
to

hold

of

were

Defendant

Plaintiff's
26

notified

[of

Harrison who
religious

the
is

offending

holding

materials"

and

(Compl.

, 67)

and

t

"Defendants

that
(Id.

treatment."

,

69.)

are
As

aware

of

discussed

this

below,

unequal

Sullivan's

"[v]ague references to a group of 'defendants,' without specific
allegations

tying

the

unconstitutional
Defendants

conduct,"

Younce,

Anderson,

individual
fails

778

to

and

Pearson,

538 F.3d 763,

defendants
state

to

alleged

claim

a

the

against

Medillia.

(7th Cir.

Grieveson

2008)

v.

(citing Alejo v.

Heller, 328 F.3d 930, 936 (7th Cir. 2003)).
1.

As

a

Defendant

Defendants Younce, Pearson, and Medilia

preliminary
Medilia

at

matter,
all

in

Sullivan
the

fails

portion

addressing his equal protection claim.

of

to
his

mention
Complaint

Thus, Sullivan fails to

explain how Defendant Medilia was personally involved in the
deprivation of his equal protection rights.

Sullivan fails to

state a claim against Defendant Medilia and Claim Three against
Defendant Medilia will be dismissed.
The section of Sullivan's Complaint pertaining to his equal
protection
with

claim mentions

respect

"Defendants

to

are

a

aware

Defendants

different
of

this

Younce

claim.
unequal

and

Sullivan
treatment,

unequal treatment is intentional discrimination .
to

his

complaints

GRCC . .
Hobbs,

this

and

grievances

led to

against

the

27

( 8)

states:
and

this

[and]
institution

the Defendants Younce,

transferring plaintiff over eight

Pearson only

Pearson,

due
of
and

hours away to a

Maximum

Security

requested

nor

facility

about

involvement

do

Defendant

not

have

Younce's

a

transfer

~ 69.)

(Compl.

warranted."

allegations

when

(KMCC)

and

Sullivan's

Pearson's

any bearing on his

wasn't

equal

purported
protection

claim, but instead are the subject of Claim Four, a due process
claim.

Sullivan

fails

to

allege

facts

indicating

that

Defendants Younce and Pearson had any personal involvement in
the deprivation of his rights under the Equal Protection Clause.
Again,

for the first time in his Reply,

Sullivan attempts

to correct the deficiencies in his Complaint and add new facts
about the personal involvement of Defendants Younce and Pearson.
Sullivan claims
during

the

that Defendant Younce

confiscation"

(Reply

8,

"was physically present
ECF

No.

45),

which

is

inconsistent with Sullivan's previous allegations in his Reply
that Younce was in a different part of the pod.
claims

that Defendant

deprivation

of

his

Sullivan also

Pearson was personally involved in the

equal

protection

rights

because

he

"was

notified of the violations via verbal complaints, and letters."
(Id.)

the

These belated assertions are not properly considered.
extent

Defendant

there
Younce

remains
or

any

Pearson,

equal
it

explained below.

28

is

protection
entirely

To

claim against
frivolous,

as

2.

Defendant Harrison

Sullivan only names Defendant Harrison in the body of the
Complaint as it relates to his equal protection claim.

is holding and continues

contends that "Defendant Harrison .
to hold Plaintiff's religious materials
As evident from Sullivan's Complaint,
various

grievances,

on

September

II

(Comp!. , 67.)

in response to Sullivan's

10,

2014,

Lt.

Harrison

asked about Sullivan's allegations and noted that
idea of what
Ex.

17.) 14

Sullivan

Sullivan

[materials Sullivan was]

"he had no
(Compl.

referring to."

Defendant Harrison is now retired from GCC;
fails

to

allege

facts

that

plausibly

was

thus,

suggest

that

Defendant Harrison has continued to hold his religious materials
in violation of equal protection.
To

the

extent

that

an

equal

protection

claim

remains

against any Defendant, Sullivan's allegations are convoluted and
frivolous.

"The Equal Protection Clause .

. is essentially a

direction that all persons similarly situated should be treated
alike."

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 claim,

Sullivan must allege

that:

inmate

(1)

differently

that
and

he
were

and

a

comparator

similarly

situated;

and

were
(2)

treated
that

the

The same grievance indicates that Sullivan was informed
that "this material has not been located in the Intel Dept."
( Compl . Ex. 1 7 . )
14

29

different treatment was the result of discrimination.
v. Wyche, 293 F.3d 726,

730

(4th Cir. 2002)

To succeed on an equal protection claim,
forth

"specific,

non-conclusory

establish improper motive."
(4th

Cir.

2001)

omitted) .

a

"the

disparity

treatment

in

court

level of scrutiny."
(4th Cir.

2001)

disparate

treatment

proceeds
can

be

that

to

determine

Garraghty,

muster

so

293 F. 3d at 732

that

whether
the

as

the

requisite

239 F. 3d 648,

"In a
long

(citation

satisfies

justified under

Morrison v.

passes

omitted)

sufficiently

(citations omitted).

Veney,

allegations

factual

treatment is 'reasonably related to [any]
interests.'"

a plaintiff must set

quotation marks

plaintiff

requirement,

(citation omitted).

Trulock v. Freeh, 275 F.3d 391, 405

(internal
If

See Veney

654

prison context,"
"the

disparate

legitimate penological

(alteration in original)

(quoting Shaw v. Murphy, 532 U.S. 223, 225 (2001)).
Sullivan alleges
Nation of Islam.

that

"his religious material is that of

These lessons are the exact same.

The Nation

of Islam members are allowed to study the exact same religious
materials,
materials

he should also be allowed to study the exact same
without

having

them

confiscated."

(Comp 1 .

~

68 . )

Sullivan seemingly argues that he has been treated differently
than other members of the Nation of Islam because he is a member
of the Nation of Islam.
this

statement,

and

In his Reply,

provides:
30

he attempts to clarify

"[T]he

reason

that

it

is

intentional discrimination ·is because Plaintiff does subscribe
to the teaching just like other members of the Nation of Islam,
but he is not being equally treated as them because they are
allowed to keep the same religious material as that which was
taken from him."

(Reply 5, ECF No. 50.)

Sullivan claims
prohibits

that

gang-related

Protection

Clause.

similarly

situated

the

application of

materials
Sullivan

groups

to

him

fails

violates

the

Equal

allege

to

inmates

of

the policy that

facts

that

have

been

treated

differently under the policy that prohibits inmates from having
gang-related

materials,

much

less

that

Defendants

Younce,

Pearson, or Harrison acted with discriminatory purpose . 15

First,

while Sullivan claims to be a member of the Nation of Islam, he
himself

identified

the

items

Percenter/N.O.I. Material."

taken

from

( Compl. Ex. 1. )

him

as

"Five

Sullivan fails to

allege facts that other inmates who have possessed property that
is

"Five

Percenter/N.O.I.

differently than him.

Thus,

have

been

to make

the

Material"
he

fails

treated
threshold

showing for an Equal Protection challenge and the Court finds
his

claim

frivolous.

See

In

re

Long

Term

Administrative

"The Court need not proceed to the succeeding question of
whether [Sullivan]' s differential treatment, had it occurred,
would have been rational under Turner [v. Safley]" because he
fails
to allege
facts
indicating that Defendants had a
discriminatory
intent.
In
re
Long
Term Administrative
Segregation of Inmates Designated as Five Percenters, 174 F. 3d
464, 471 n.5 (4th Cir. 1999) (citations omitted).
15

31

Segregation of Inmates Designated as Five Percenters,
464,

471

(4th Cir.

1999)

(citation omitted)

174 F. 3d

("There is nothing

in the Constitution which requires prison officials to treat all
inmate groups alike where differentiation is necessary to avoid
an imminent

threat

of

institutional

disruption or violence.")

Claim Three will be dismissed as frivolous.
E.

Due Process
Five)

And

Retaliation

Claims

(Claim

Four

and

The Court discusses Claims Four and Five together because
Sullivan fails to differentiate between the claims.
claims

are

scour the

disjointed

and

record to find

rambling

require

the

Court

to

the one instance where he mentioned

Defendants in relation to this claim.
contends that

and

These two

"Defendants Younce,

In Claim Four,

Pearson,

and Hobbs,

Sullivan
violated

his Fourteenth Amendment Rights -

to the Due Process Clause by

transferring Plaintiff over eight

( 8)

and family as a

means of

hours away from his home

retaliation for

filing his numerous

requests, letters, complaints and grievances due to the unlawful
taking

of

his

religious

material."

( Compl.

13 . )

The

only

instance where these three Defendants are named in the body of
the Complaint with regard to this claim is the section titled
"Retaliation," where he alleges that "Younce, Pearson, and Hobbs

transferred

him

to

KMCC,

to

punish

him

for

complaining

grievances concerning misconduct by prison officers."

32

and

(Compl.

,

74.)

Sullivan fails

to allege any facts

indicating that

Defendants Younce or Pearson had any personal involvement in the
deprivation of his due process rights or retaliated against him
for exercising a constitutionally protected right. 16
Instead,
Sullivan

the

was

record

transferred

before
one

the

day

Court

after

he

establishes
filed

his

that
first

grievance and at the request of Central Classification Services.
With respect to Defendant Hobbs, the Court construes Sullivan to
argue

that,

because

complaint that,

K.

Whitehead

responded

to

at 1) ,

(Compl.

Ex.

and because Defendant Hobbs was the Eastern Region

Administrator,
deprivation of
Sullivan

informal

"You were transferred to Keen Mountain on 1-31-

14 at the request of Eastern Region Administrator"
6,

his

fails

Defendant Hobbs was necessarily involved in the
his
to

due

process

plausibly

rights.
suggest

As
that

discussed below,
Defendant

Hobbs

For the first time in his Reply, Sullivan attaches an
affidavit from another inmate who swears that he heard Defendant
Younce say to Sullivan, "[s] ince you have so many complaints
about how you' re being treated here, we' re going to send you
somewhere more to your liking.
Then he chuckled and left."
(Reply Ex. 1, ECF No. 45-1.)
That belated filing is not
properly considered.
But,
even
assuming
that
Sullivan had alleged
that
Defendants Younce or Pearson were personally involved in the
deprivation of his rights with regard to his transfer, for the
reasons stated in conjunction with Sullivan's allegations
against Defendant Hobbs, this claim is both frivolous and fails
to state a claim upon which relief may be granted.
16

33

retaliated

against

him

in

violation

of

his

constitutional

rights.
Claims of retaliation by inmates are generally treated with
skepticism
officials

because
is

by

"' [e]very

definition

act

of

retaliatory

74

1317

(4th Cir. 1996)

(4th Cir.

1994))

"[P] laintiffs who

by

sense
Morris,

prison
that

it

73 F. 3d

40 F.3d 72,

(some internal quotation marks omitted) . 17

claim that

plaintiff

their constitutional

retaliation must

naked allegations of reprisal
a

the

(quoting Adams v. Rice,

been violated by official

Instead,

in

Cochran v.

responds to prisoner misconduct. ' "
1310,

discipline

must

.

allege

present

Adams,

II

facts

rights

have

more

than

40 F.3d at 74.

that

plausibly

show

"either that the retaliatory act was taken in response to the
exercise of a constitutionally protected right or that the act
itself

violated

Sullivan's
participate
Alba,

932

enjoys

no

such

contention,
in
F. 2d

a

right."
"there

grievance
728,

729

constitutional

Id.

is

no

Cir.

right

to

75.

Contrary

constitutional

proceedings."
(8th

at

Id.

1991)) .

right

to
to

(citing

Flick v.

Because

Sullivan

participate

in

grievance

proceedings, his act of pursuing a grievance about GCC staff was
This case provides a prime example as to why claims of
retaliation are met with skepticism.
Here, at the point when
Sullivan was actually transferred on January 31, 2014, he had
filed one grievance the day before his transfer.
The Court has
serious doubts that the VDOC could effectuate a transfer of an
inmate in one-day period.
17

34

not the exercise of a constitutional right.

Id.

(citing Flick,

932 F.2d at 729).
Sullivan

also

fails

to

allege

retaliatory act-transferring him to a
violated his constitutional rights.
Sullivan

fails

to

allege

facts

that

higher security prison-

Cochran,

that

purported

the

73 F. 3d at 1317.

plausibly show

that

the

alleged retaliatory act "was taken in response to the exercise
of a

constitutionally protected right or that

violated such right."

Adams, 40 F.3d at 75.

the act

itself

Claim Four will be

dismissed as frivolous.
In

Claim

Five,

Sullivan

argues

that

Defendants

Younce,

Pearson, and Hobbs violated his due process rights by taking his
property from his cell.

Sullivan fails

to allege

facts

that

plausibly suggest that Defendants Younce, Pearson, or Hobbs had
any personal involvement in Defendant Medilia' s and Harrison's
confiscation of his books and other materials from his cell.
To

the

Defendant,
action

extent

that

an

property interest.

individual

remains

against

any

claim is

a

legitimate

liberty

or

The first step in analyzing a procedural
to

identify whether the alleged conduct

affects a protected interest.
(4th Cir. 1997)

of

Bd. of Regents of State Cells. v. Roth, 408

U.S. 564, 569 (1972).

502

Five

the Due Process Clause applies only when government

deprives

due process

Claim

Beverati v. Smith, 120 F.3d 500,

(citing cases).
35

Sullivan does not indicate

that

Defendants'

liberty

interest. 18

Complaint,
Hobbs

actions

he

resulted

Instead,

contends

deprived him

of

that
his

in

the

deprivation

of

any

generously construing Sullivan's
Defendants

Younce,

Pearson,

black history books

and

and purported

religious reading materials without due process of law.
First,
negligent

act

Negligent

state

Due

Process

of

state

Daniels

property.

violate

the

v.

and

Clause

official

[the Due Process]
post-deprivation

474

implicated

unintended

U.S.

deprivations

327,

of

(1984)

are

by

loss

328

a
of

(1986).

property

Clause provided .

remedies

Palmer, 468 U.S. 517, 533

not

causing

Williams,

intentional

is

"do

not

that adequate

available."

Hudson

v.

(finding due process satisfied

by post-deprivation remedy to redress intentional destruction of
personal

property

Moreover,

Virginia's

remedies

forecloses

by

prison
provision

Sullivan's

deprivation of property.
(JCC/JFA),

guard
of
due

during

adequate
process

a

shakedown) .

post-deprivation
claim

for

the

See id.; Wilson v. Melby, No. 1:12cv42

2012 WL 1895793,

at

*6-7

(E.D.

Va.

May 23,

2012);

At most, he vaguely states that "Defendants deprived him
of his 'liberty' interest in the fundamental right to (Petition
of Grievances, Equal Protection of the Law, and Administrative
transfer)."
(Compl. 11 74.)
As discussed above, Sullivan has no
constitutional right to participate in the grievance procedure.
With regard to "Equal Protection of the Law, and Adminstrative
transfer,
Plaintiff rambles on about his "legitimate claims of
entitlement" to these two things, but fails to identify any of
the three Defendants he named with regard to his claim in this
section or how they were personally
involved with
the
deprivation of his rights.
(See Compl. 1111 71-82.)
18

11

36

Henderson v. Virginia, No. 7:07-cv-00266, 2008 WL 204480, at *10
n.7 (W.D. Va. Jan. 23, 2008).
Virginia

has

provided

adequate

post-deprivation

Under the Virginia

for deprivations caused by state employees.
Tort

Claims

damages

for

Act,

Virginia

"negligent

has

or

waived

wrongful"

sovereign
acts

acting within the scope of employment.
195.3 (West 2015). 19

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, 77-78 (4th Cir. 1985).

See Wadhams v.

Procunier,

Because the availability of

a tort action in state court fully satisfies the requirement of
a meaningful post-deprivation process,
claim

for

Amendment.

the

loss

of

See Wilson,

2008 WL 204480,

his

property

Sullivan cannot state a
under

2012 WL 1895793,

at *10 n. 7.

Accordingly,

at

the

Fourteenth

*6-7;

Henderson,

Claim Five will be

dismissed as frivolous and for failure to state a claim.
Accordingly,
Second

Motion

Sullivan's

the First Motion to Dismiss

to

claims

Dismiss
will

be

(ECF

No.

dismissed.

47)

(ECF No.
will

The

be

action

35)

and

granted.
will

be

"[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).
19

37

dismissed.

The Clerk will be directed to note the disposition

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

Clerk

is

directed to

send a

§

1915(g).
copy of

the

Memorandum

Order to Sullivan and counsel of record.
It is so ORDERED.

/s/
Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date: February

-fI2_,

2017

38