Richardson v. Clarke et al

Filing 69

MEMORANDUM OPINION. It is so ORDERED. Signed by District Judge Henry E. Hudson on 08/17/2020. Copy mailed to Plaintiff. (walk, )

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

DAVID A. RICHARDSON,

Plaintiff,
Civil Action No. 3:18CV23-HEH

V.

HAROLD CLARKE,et al.,
Defendants.

MEMORANDUM OPINION

(Granting in Part and Denying in Part Defendants' Partial
Motion to Dismiss, or in the Alternative, Motion to Sever)
The matter is before the Court on Defendants' Partial Motion to Dismiss, or in the

Alternative, Motion to Sever and Richardson's response thereto. Additionally, the Court

will exercise its responsibility under 42 U.S.C. § 1997e(c)(2) to dismiss claims that are
frivolous or fail to state a claim.'
I. PROCEDURAL HISTORY

David A. Richardson, a Virginia inmate proceeding pro se, originally sought to

bring this action with a number of other inmates. By Memorandum Order entered on

April 25, 2018, the Court informed Richardson that the action would proceed with
Richardson as the sole plaintiff. By Memorandum Order entered on June 13, 2018, the
Court directed Richardson to file an Amended Complaint within thirty (30) days of the
date of entry thereof that raised only claims based upon his own circumstances.

'That statute provides, in pertinent part, that,"[i]n the event that a claim is, on its face, frivolous,
malicious, fails to state a claim upon which relief can be granted, or seeks monetary relieffrom a
defendant who is immune from such relief, the court may dismiss the underlying claim ...." 42
U.S.C. § 1997e(c)(2).

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Richardson did not comply with the June 13, 2018 Memorandum Order. Instead,

Richardson objected to that Memorandum Order. Richardson insisted that he could not

comply with June 13, 2018 Memorandum Order because he is both deaf and legally
blind. However, Richardson's submissions reflected that he was capable of drafting and

submitting a basic complaint. By Memorandum Order entered on October 30, 2018,the
Court overruled Richardson's objection to the June 13, 2018 Memorandum Order and
directed Richardson to file an appropriate Amended Complaint. On November 8, 2018,
Richardson submitted his Amended Complaint,(ECF No. 26), and thereafter the Court
served the Defendants.

The Amended Complaint was roughly 100 pages long, listed 5 defendants,
contained 10 counts/claims for relief, and demanded monetary damages and injunctive

relief. Richardson complained that his rights under the Constitution, Religious Land Use
and Institutionalized Persons Act("RLUIPA"),the Americans with Disabilities Act

("ADA"), and the Rehabilitation Act were violated by the conditions of his incarceration
at the Greensville Correctional Center.

Defendants responded to the Amended Complaint by filing a Motion for a More

Definite Statement pursuant to Federal Rule of Civil Procedure 12(e). "Rule 12(e) allows
a defendant to move for a more definite statement if the complaint Ms so vague or

ambiguous that [it] cannot reasonably be required to frame a responsive pleading.'"
Hodgson V. Va. Baptist Hosp. Inc., 482 F.2d 821, 822-23 (4th Cir. 1973)(quoting Fed. R.
Civ. P. 12(e)). Defendants stated that they were at "a loss in formulating a response to

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the Amended Complaint because of its format, its lack of specificity in dates, times,

incidents or persons involved, and its general lack of organization." (ECF No. 34, at 2.)
Defendants asserted that it would be "more efficient and equitable to permit Richardson

time to submit more facts to support any of his claims that may be meritorious, while

excluding facts that are not specific or relevant to him." {Id.) Richardson objected to
Defendants' Motion for a More Definite Statement and noted, once again, that because he

is legally blind and deaf, his disabilities and Defendants' lack of accommodations make it
very difficult for him to litigate this matter. (ECF No. 35.)

Additionally, on April 19, 2019, Richardson informed the Court that he was
moved from Greensville Correctional Center to Deerfield Correctional Center. (ECF

No. 37.) "[A]s a general rule, a prisoner's transfer or release from a particular prison
moots his claims for injunctive and declaratory relief with respect to his incarceration
there." Rendelman v. Rouse, 569 F.3d 182, 186(4th Cir. 2009){Q\\\n% Incumaa v.

Ozmint, 507 F.3d 281, 286-87(4th Cir. 2007); see Williams v. Griffin, 952 F.2d 820, 823

(4th Cir. 1991); Taylor v. Rogers, 781 F.2d 1047, 1048 n.l (4th Cir. 1986)).

Accordingly, this circumstance appeared to render moot many of Richardson's demands
for relief in the Amended Complaint. Given the foregoing circumstances, by
Memorandum Order entered on June 12, 2019, the Court granted Defendants' Motion for

a More Definite Statement(ECF No. 33)to the extent that Richardson was directed to file
a Particularized Complaint in accordance with the following directions and warnings:

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a.
At the very top of the particularized pleading, Richardson is
directed to place the following caption in all capital letters
"PARTICULARIZED COMPLAINT FOR CIVIL ACTION NUMBER
3:18CV23."

b.
The first paragraph ofthe particularized pleading must contain
a list of defendants. Thereafter, in the body of the particularized complaint,
Richardson must set forth legibly, in separately numbered paragraphs, a short
statement of the facts giving rise to his claims for relief. Thereafter, in

separately captioned sections, Richardson must clearly identify each civil
right violated. Under each section, Richardson must list each defendant
purportedly liable under that legal theory and explain why he believes each
defendant is liable to him. Such explanation should reference the specific
numbered factual paragraphs in the body ofthe particularized complaint that
support that assertion. Richardson shall also include a prayer for relief.
c.
The particularized pleading will supplant the prior complaints.
The particularized pleading must stand or fall of its own accord. Richardson
may not reference statements in the prior complaints.
d.
The particularized pleading may not exceed fifty(50)pages in
length.

e.
The particularized pleading must recount specific facts and
events relative to Richardson and may not rely upon broad generalizations.
FAILURE TO COMPLY WITH THE FOREGOING DIRECTIONS
WILL RESULT IN DISMISSAL OF THE ACTION. See Fed. R. Civ.

P. 41(b).
Federal Rule of Civil Procedure 18(a) provides that: "A party

asserting a claim, counterclaim, crossclaim, or third-party claim may join,
as independent or alternative claims, as many claims as it has against an
opposing party." Nevertheless, when a plaintiff seeks to bring multiple
claims against multiple defendants, he must also satisfy Federal Rule of
Civil Procedure 20, which provides:

(2) Defendants, Persons . . . may be joined in one action as
defendants if:

(A)any right to relief is asserted against them jointly, severally,
or in the alternative with respect to or arising out of the same
transaction, occurrence, or series oftransactions or occurrences;
and

(B) any question of law or fact common to all defendants will
arise in the action.

Fed. R. Civ. P. 20(a)(2). "Rule 20 does not authorize a plaintiffto add claims
'against different parties [that] present[] entirely different factual and legal

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issues.'" Sykes v. Bayer Pharm. Corp., 548 F. Supp. 2d 208, 218(E.D. Va.
2008)(alterations in original)(quoting Lovelace v. Lee, No. 7:03CV00395,
2007 WL 3069660, at * 1 (W.D. Va. Oct. 21,2007)). And,a court may 'deny
joinder if it determines that the addition of the party under Rule 20 will not
foster the objectives of[promoting convenience and expediting the resolution
of disputes], but will result in prejudice, expense, or delay.'" Id. (quoting
Aleman v. Chugach Support Servs., Inc., 485 F.3d 206, 218 n. 5 (4th Cir.
2007)). In this regard, in the forthcoming Particularized Complaint,
Richardson may challenge either his conditions at Greensville
Correctional Center or at Deerfield Correctional Center. If Richardson

fails to submit an appropriate Particularized Complaint that comports with
the joinder requirements, the Court will drop all defendants not properly
joined with the first named defendant.
(ECF No. 38, at 3-4 (last emphasis added).)
On October 31, 2019, Richardson filed his Particularized Complaint. (ECF

No. 42.) Richardson, however, ignored the Court's admonition that the Particularized

Complaint must challenge either the conditions at Greensville Correctional Center
("OCC")or at Deerfield Correctional Center("DCC"). The Particularized Complaint

spans fifty pages and seeks to state eleven counts for violations of his rights at both GCC
and DCC. Richardson names as defendants: the Virginia Department of Corrections

("VDOC"), Harold W. Clarke, the Director ofthe VDOC;Eddie L. Pearson, the Warden
of GCC from October 27, 2014 until April 2, 2019; and Tammy Williams the Warden of
DCC. (Id. at 1-2.) On January 14, 2020, Defendants filed a Partial Motion to Dismiss,
or in the Alternative, Motion to Sever.
II. JOINDER

The Federal Rules of Civil Procedure place limits on a plaintiffs ability to join

multiple defendants in a single pleading. See Fed. R. Civ. P. 20(a). "The 'transaction or
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occurrence test' of[Rule 20]...'permit[s] all reasonably related claims for relief by or

against different parties to be tried in a single proceeding. Absolute identity of all events

is unnecessary.'" Saval v. BLLtd,710 F.2d 1027, 1031 (4th Cir. 1983)(quoting Mosley
V. Gen. Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974)). "But, Rule 20 does not

authorize a plaintiff to add claims 'against different parties [that] present[]entirely
different factual and legal issues.'" Sykes v. Bayer Pharm. Corp., 548 F. Supp. 2d 208,
218(E.D. Va. 2008)(alterations in original)(quoting Lovetee v. Lee, No. 7:03CV00395,

2007 WL 3069660, at *1 (W.D. Va. Oct. 21, 2007)). "And, a court may 'deny joinder if
it determines that the addition of the party under Rule 20 will not foster the objectives of

[promoting convenience and expediting the resolution of disputes], but will result in

prejudice, expense, or delay.'" Id. (quoting

v. Chugach Support Servs., Inc., 485

F.3d 206, 218 n.5 (4th Cir. 2007)).

In addressing joinder, the Court is mindful that "the impulse is toward entertaining

the broadest possible scope of action consistent with fairness to the parties;joinder of
claims, parties and remedies is strongly encouraged." United Mine Workers ofAm. v.
Gibbs, 383 U.S. 715, 724(1966). This impulse, however, does not provide a plaintiff
free license to join multiple defendants into a single lawsuit where the claims against the
defendants are unrelated. See, e.g., George v. Smith, 507 F.3d 605,607(7th Cir. 2007);

Coughlin V. Rogers, 130 F.3d 1348, 1350(9th Cir. 1997). Thus,"[a] buckshot complaint
that would be rejected if filed by a free person—say, a suit complaining that A defrauded

the plaintiff, B defamed him, C punched him, D failed to pay a debt, and E infringed his
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copyright, all in different transactions—should be rejected if filed by a prisoner."
George, 507 F.3d at 607.

"The Court's obligations under the PLRA include review for compliance with

Rule 20(a)." Coles v. McNeely, No. 3:11CV130, 2011 WL 3703117, at *3(E.D. Va. Aug
23, 2011)(citing George, 507 F.3d at 607).

Thus, multiple claims against a single party are fine, but Claim A
against Defendant 1 should not be joined with unrelated Claim B against
Defendant 2. Unrelated claims against different defendants belong in
different suits, not only to prevent the sort of morass that these complaints
have produced but also to ensure that prisoners pay the required filing fees.

Id. (citing 28 U.S.C. § 1915(g); Showalter v. Johnson, No. 7:08CV00276, 2009 WL
1321694, at *4(W.D. Va. May 12, 2009)).

As the Court previously observed, Richardson could not properly join all of his
claims occurring at GCC and the defendants implicated therein with all of his claims

occurring at DCC and the defendants implicated by those claims. Permitting these

disparate, vague claims to proceed in a single suit would be inconvenient and further
delay the resolution of all the claims. See Sykes v. Bayer Pharm. Corp., 548 F. Supp. 2d
at 218 {Q\Wn%Aleman,485 F.3d at 218 n.5). Accordingly, all claims against Warden
Pearson and pertaining to Richardson's incarceration at GCC will be dismissed without
prejudice.
III. STANDARD FOR THE MOTION TO DISMISS

"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
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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 plaintiffs 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, 1 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 Atl. 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 ofthe 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," stating a claim that is "plausible on
its face," rather than merely "conceivable." Id. at 555, 570 (citation omitted). "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 (citing Bell Atl. Corp., 550 U.S. at 556). In order for a claim or
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complaint to survive dismissal for failure to state a claim, the plaintiff must "allege facts
sufficient to state all the elements of[his or] her claim." Bass v. E.L DuPont de Nemours
& Co., 324 F.3d 761, 765 (4th Cir. 2003)(citing Dickson v. Microsoft Corp., 309 F.3d

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

Lastly, while the Court liberally construes pro se complaints, Gordon v. Leeke, 574 F.2d
1147, 1151 (4th Cir. 1978), it 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 241,242^3(4th Cir. 1997)

(Luttig, J., concurring); Beaudett v. City ofHampton,775 F.2d 1274, 1278(4th Cir.
1985). Furthermore,"Plaintiffs cannot... amend their complaint in an opposition brief
or ask the court to consider new allegations ... not contained in the complaint." Bates v.
Green Farms Condo. Ass'n, 958 F.3d 470,483 (6th Cir. 2020)(citations omitted).
IV. ANALYSIS

Richardson asserts eleven claims for relief against the remaining Defendants—^the

VDOC,Director Clarke, and Warden Williams("Defendants"). Specifically, Richardson
asserts that:

Claim 1

Defendants violated Richardson's rights under Title II of ADA.
(ECF No. 42, at 13-23.)

Claim 2

Defendants violated Richardson's rights under the Rehabilitation
Act. {Id. at 23-26.)

Claim 3

Defendants violated Richardson's rights under the Virginians with
Disabilities Act. {Id. at 26-31.)

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Claim 4

Defendants violated Richardson's rights under section 2.2-3401 of
the Virginia Code. {Id. at 31-33.)

Claim 5

Defendants violated Richardson's rights under RLUIPA. {Id. at 3335.)

Claim 6

Defendants violated Richardson's rights under the Eighth
Amendment, (/c/. at 35-40.)

Claim 7

Defendants violated Richardson's right to the free exercise of his
religion under the First Amendment. {Id. at 40^2.)

Claim 8

Defendants violated Richardson's right to free speech under the First
Amendment, (/ic/. at 42-43.)

Claim 9

Defendants violated Richardson's right to the free exercise of his
religion under the Virginia Constitution. {Id. at 43-45.)

Claim 10

Defendants violated Richardson's right to free speech under the
Virginia Constitution. {Id. at 45^7.)

Claim 11

Defendant violated Richardson's right of access to the courts under
the First, Fifth, and Fourteenth Amendments. {Id. at 47-49.)

Given the disjointed manner in which Richardson has set forth his allegations, the

most practical way to analyze his claims is to set forth the governing law for each claim
and address whether Richardson has adequately pled a claim for relief. However, prior to

proceeding to that analysis, it is appropriate to dispense with some of Richardson's
claims that are plainly deficient.
A.

Non-Viable Individual Capacity Claims

In Claims 1 and 2, Richardson seeks to bring claims under Title II of the ADA and
the Rehabilitation Act against the VDOC,Director Clarke, and Warden Williams.

"[Njeither Title II of the ADA nor § 504 ofthe Rehabilitation Act provides for individual
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capacity suits against state officials." Garcia v. S. U.N.Y. Health Sets. Ctr. ofBrooklyn,
280 F.3d 98, 107(2d Cir. 2001);

Barnes v. Young, 565 F. App'x 272, 273 (4th Cir.

2014)(citations omitted). Accordingly, Richardson's individual capacity claims against
Clarke and Williams with respect to the ADA and Rehabilitation Act are improper and

will be dismissed. Additionally, because Richardson appropriately named the VDOC as

a defendant in conjunction with these claims, his official capacity claims under the ADA

and Rehabilitation Act against Clarke and Williams are redundant and will be dismissed.
Latson v. Clarke, 249 F. Supp. 3d 838, 856(W.D. Va. 2017)(dismissing as redundant
ADA and Rehabilitation Act official capacity claims against defendants other than the
VDOC).

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). Furthermore,"[bjecause

vicarious liability is inapplicable to ... § 1983 suits, a plaintiff must [allege] that each
Government-official defendant, through the official's own individual actions, has
violated the ConsXiXvXionP Ashcroft v. Iqbal, 556 U.S. 662,676(2009); Vinnedge v.
Gibbs, 550 F.2d 926,928(4th Cir. 1977)(noting that the doctrine of respondeat superior

is inapplicable to § 1983 actions). Section 1983 plaintiffs must "ground [their] legal
conclusions in a sufficiently plausible factual basis" that places each defendant "on notice
of what exactly [he or she] might have done to violate [the plaintiffs] rights under the
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Constitution." Brooks v. Ross, 578 F.3d 574, 582(7th Cir. 2009). Relatedly,"plaintiffs

may not rely on '[v]ague references to a group of'defendants,' without specific

allegations tying the individual defendants to the alleged unconstitutional conduct."

Engel V. Buchan, 710 F.3d 698, 710(7th Cir. 2013))(alteration in original)(quoting
Grieveson v. Anderson, 538 F.3d 763, 778 (7th Cir. 2008)).

Richardson's complaint repeatedly runs afoul ofthe foregoing requirements and

repeatedly refers to "Defendants" as a group, without any specific factual allegations

tying Director Clarke to the alleged unconstitutional conduct. See id. Accordingly, all
remaining claims against Director Clarke will be dismissed without prejudice.
B.

Disability Related Claims

In Claim 1, Richardson seeks to bring claims under Title II ofthe ADA. In Claim

2, Richardson seeks to bring claims under the Rehabilitation Act. In their Motion to

Dismiss, Defendants primarily argue for the dismissal ofthese claims against the
individual defendants. The Court has granted this aspect ofthe Motion to Dismiss with
respect to the individual defendants. See supra Part IV.A.
In order to state a claim under either the ADA and or the Rehabilitation Act, a

plaintiff must allege facts plausibly asserting that: (1)[he] has a disability, (2)[he] is
otherwise qualified to receive the benefits of a public service, program, or activity, and (3)
[he] was excluded from participation in or denied the benefits ofsuch service, program, or
activity, or otherwise discriminated against, on the basis of[his] disability. Constantine v.
Rectors & Visitors ofGeorge Mason Univ.,411 F.3d 474,498(4th Cir. 2005){Q\\\ngBaird
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ex rel. Baird v. Rose, 192 F.3d 462,467-70(4th Cir. 1999); Doe v. University ofMd. Med.

Sys. Corp., 50 F.3d 1261, 1264-65 & n. 9(4th Cir. 1995)).^
Defendants do not delineate Richardson's specific claims under the ADA or

dispute that he has stated viable claims under the ADA. Instead, they argue his claim for
monetary damages under the ADA must be dismissed. The Court agrees. See Chase v.
Baskerville, 508 F. Supp. 2d 492, 506(E.D. Va. 2007), affd, 305 F. App'x 135 (4th Cir.
2008). "[I]n the context of state prisons. Title II [ofthe ADA]validly abrogates state

sovereign immunity and 'creates a private cause of action for damages against the States'

only 'for conduct that actually violates the Fourteenth Amendment.'"Id. (quoting United
States V. Georgia, 546 U.S. 151, 159(2006)). As discussed later in the opinion, the only
constitutional claim that Richardson has adequately pled is his First Amendment claim,

denial of free exercise of his religion with respect to the wearing of a head covering.
Richardson fails to state a companion ADA claim in conjunction with that claim.

Accordingly, Richardson's demand for monetary damages under Claim 1 will be
dismissed without prejudice.

Defendants argue that Richardson has failed to state any claim under the
Rehabilitation Act because "[t]o succeed on a claim under the Rehabilitation Act, the

plaintiff must establish he was excluded 'solely by reason of his disability; the ADA

^ As pertinent here, the ADA defines a disability to mean "a physical or mental impairment that
substantially limits one or more major life activities ofsuch individual." 42 U.S.C. § 12102(A).
Among other things, Richardson is hearing impaired and legally blind. (Compl. H 2.)
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requires only that the disability was 'a motivating cause' ofthe exclusion." Halpern v.
Wake Forest Univ. Health Scis., 669 F.3d 454, 461-62(4th Cir. 2012)(quoting Baird ex
rel Baird, 192 F.3d at 468-69). This argument, however, is not accompanied by any

adequate discussion ofthe numerous allegations in the Particularized Complaint. Given
the inadequacy ofthis briefing, this aspect of the Motion to Dismiss with respect to Claim
2, will be denied.

Defendants also suggest that Claim 3, wherein Richardson seeks to bring claims

under the Virginians with Disabilities Act("YDA"),should be dismissed because Virginia
only has consented to be sued in the circuit courts of Virginia. In support of this
proposition. Defendants quote the remedies portion of the VDA, which states:

Any circuit court havingJurisdiction and venue pursuant to Title 8.01, on the
petition of any person with a disability, shall have the right to enjoin the
abridgement of rights set forth in this chapter and to order such affirmative
equitable relief as is appropriate and to award compensatory damages ....
Va. Code Ann. § 51.5-46(A)(West 2020)(emphasis added). Defendants, however, fail
to cite the decision of any court that has concluded the above language prohibits suits
under the VDA in federal court. Moreover, there are numerous instances in which the

federal courts have entertained claims under the VDA. J.D. by Doherty v. Colonial

Williamsburg Found., 925 F.3d 663,669 n.6 (4th Cir. 2019)(citing Halpern v. Wake
Forest Univ. Health Scis., 669 F.3d 454, 461 (4th Cir. 2012); Tyndall v. Nat'I Educ.

Ctrs., Inc., 31 F.3d 209, 216 (4th Cir. 1994)). Given the current briefing. Defendants'
Motion to Dismiss Claim 3 will be denied without prejudice.
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C.

Section 2.2-3401(A) of the Virginia Code

In Claim 4, Richardson seeks to bring a claim under section 2.2-3401(A) ofthe

Virginia Code. That section, which pertains to Virginia agency proceedings and
determinations, provides in pertinent part:

A.In the case of any agency proceeding or determination as to whether there
is a violation of law or regulation by a deaf person or whether such person
may obtain or retain a license or other right or benefit, and when the agency
or deaf person requests an interpreter for the deaf, the agency shall request
the Virginia Department for the Deaf and Hard-of-Hearing to appoint a
qualified interpreter or shall appoint such an interpreter from a list of
qualified interpreters supplied by the Department to interpret the proceedings
to the deaf person and to interpret any testimony the deaf person may give.

Va. Code § 2.2-3401 (West 2020). The above provision does not explicitly or implicitly
create a private right of action. A & E Supply Co. v. Nationwide Mut. Fire Ins. Co., 798
F.2d 669,674 (4th Cir. 1986)("[F]ederal courts should be reluctant to read private rights
of action into state laws where state courts and state legislatures have not done so.").

Furthermore, there are no reported cases that indicate that the above statute provides a

private right of action. Given these circumstances. Claim 4 will be dismissed.
D.

Religious Claims

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

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42 U.S.C. § 2000cc-l(a).^ Thus, to begin, Richardson must allege facts that indicate that
the VDOC's policies impose a "substantial burden" on his religious exercise. In

determining if Richardson has met this standard, the Court must answer two questions:
"(1) Is the burdened activity 'religious exercise,' and ifso(2)is the burden 'substantial'?"
Adkins v. Kaspar, 393 F.3d 559, 567 (5th Cir. 2004); see Couch v. Jabe, 679 F.3d 197,
200-01 (4th Cir. 2012)(employing similar two-part inquiry).
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 ofthe precepts ofh[is] religion
... on the other hand.

Couch,679 F.3d at 200(alterations and omission in original)(quoting Lovelace v. Lee,472

F.3d 174, 187(4th Cir. 2006)).^
As best as the Court can discern, Richardson is an adherent ofthe Nation ofIslam.

(ECF No.42 105.) Richardson fails to clearly identify his religious beliefs as a member
of the Nation ofIslam and fails to articulate what current conditions at DCC have

pressured him to substantially violate his beliefs or prevented him from practicing his

^ In order to state a claim for violation ofrights secured by the Free Exercise Clause, an inmate, as
a threshold matter, must allege facts that indicate "that:(1) he holds a sincere religious belief; and
(2) a prison practice or policy places a substantial burden on his ability to practice his religion."
Wilcox V. Brown, 877 F.3d 161, 168 (4th Cir. 2017)(citing Thomas v. Review Ed. oflnd. Emp't
Sec. Div., 450 U.S. 707, 718 (1981)).
^ Defendants concede that Richardson has stated a viable RLUIPA and First Amendment claim

with respect to his sincere religious belief that he wear a head covering and that the rules put into
place by Warden Williams have restricted this practice. (ECF No. 48, at 19 n.l2, 20.)
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beliefs in alternative ways. Once again, Richardson vaguely references instances during
his incarceration at GCC,rather than DCC, when he feels there was an interference with

some religious practice. Moreover, in his Complaint, Richardson fails to state facts that

indicate why the listed religious observance was relevant to his personal religious beliefs.
See Krieger v. Brown,496 F. App'x 322, 326 (4th Cir. 2012)(concluding inmate's
"blanket assertion" "that the sacred items were 'necessary' to perform 'well-established
rituals'" was insufficient to establish a substantial burden when inmate failed to "identify

those rituals, or explain why the absence ofthe sacred items had an impact on the rituals
and violated his beliefs"); see DeSimone v. Bartow, 355 F. App'x 44,46(7th Cir. 2009)

("noting the insufficiency of a plaintiffs 'unreasoned say-so' to create a triable issue"
(quoting Borzych v. Frank, 439 F.3d 388, 390 (7th Cir. 2006))). For example, without
providing any factual detail, Richardson alleges that "defendants have deprived the
plaintiff of the opportunity to participate in Ramadan, Lent,[and] Passover ...." (ECF
No.42 H 104.) Richardson fails to articulate why his sincerely held religious beliefs
would be substantially burdened if he did not participate in these disparate religious
celebrations.^ Further, Richardson fails to articulate in his Particularized Complaint what

actions of Warden Williams or the VDOC actually prevented him from participating in
these celebrations or any other sincerely held religious practices. Accordingly, with the

^ Indeed, without further explanation it is factually frivolous to suggest that his sincere religious
belief requires participation in all of these celebrations.
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exception of his religious claim pertaining to wearing a head covering, Claims 5 and 7
will be dismissed without prejudice.

In Claim 9, Richardson asserts that Defendants violated his religious rights under

Article 1, Section 16 of the Virginia Constitution.^ "The Supreme Court of Virginia has

explained that provisions of the Virginia Constitution do not provide an independent
basis for a private right of action unless they are self-executing." Bayadi v. Clarke,
No. 7:16CV00003, 2017 WL 1091946, at *6(W.D. Va. Mar. 22, 2017)(citing Robb v.

Shockoe Slip Found., 324 S.E.2d 674,676(1985)). The courts have not concluded that
this provision is self-executing. Id. As questions of state constitutional law are best

answered by the state courts, id. (citing Harris Cty. Comm 'rs Court v. Moore,420 U.S.

^ That section states,

That religion or the duty which we owe to our Creator, and the manner of
discharging it, can be directed only by reason and conviction, not by force or
violence; and, therefore, all men are equally entitled to the free exercise of religion,
according to the dictates of conscience; and that it is the mutual duty of all to
practice Christian forbearance, love, and charity towards each other. No man shall
be compelled to frequent or support any religious worship, place, or ministry
whatsoever, nor shall be enforced, restrained, molested, or burthened [sic] in his

body or goods, nor shall otherwise suffer on account of his religious opinions or
belief; but all men shall be free to profess and by argument to maintain their
opinions in matters ofreligion, and the same shall in nowise diminish, enlarge, or
affect their civil capacities. And the General Assembly shall not prescribe any
religious test whatever, or confer any peculiar privileges or advantages on any sect
or denomination, or pass any law requiring or authorizing any religious society, or
the people of any district within this Commonwealth, to levy on themselves or
others, any tax for the erection or repair of any house of public worship, or for the
support of any church or ministry; but it shall be left free to every person to select
his religious instructor, and to make for his support such private contract as he shall
please.

Va. Const, art 1, § 16(emphasis added).
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77, 84-85 (1975); Reetz v. Bozanich, 397 U.S. 82, 85 (1970)), the Court declines to

exercise supplemental jurisdiction over this claim and will dismiss it without prejudice.
Id. (dismissing a similar claim pursuant to 28 U.S.C. § 1367). Accordingly, Claim 9 will
be dismissed without prejudice.
£.

Cruel and Unusual Punishment

In Claim 6, Richardson seeks to bring claims under the Eighth Amendment. To

state an Eighth Amendment claim, an inmate must allege facts showing "(1)that

objectively the deprivation of a basic human need was 'sufficiently serious,' and (2)that
subjectively the prison officials acted with a 'sufficiently culpable state of mind.'"
Johnson v. Quinones, 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 to 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). With respect to claims of
inadequate medical treatment under the Eighth Amendment,"the objective component is
satisfied by a serious medical condition." Quinones, 145 F.3d at 167.

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The subjective prong requires the plaintiff to allege facts that indicate a particular
defendant actually knew of and disregarded a substantial risk of serious harm to his

person. See Farmer v. Brennan, 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){ciimg Estelle v. Gamble,429 U.S. 97, 105-06(1976)).

[A] prison official 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 offacts 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). 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 subjectively recognized that his [or her] actions were 'inappropriate in light of
that risk.'" Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004)(quoting
Rich, 129 F.3d at 340 n.2).

In order to state an Eighth Amendment claim for denial of adequate medical care,
"a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate
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indifference to serious medical needs." Estelle, 429 U.S. at 106. "To establish that a

health care provider's actions constitute deliberate indifference to a serious medical need,
the treatment must be so grossly incompetent, inadequate, or excessive as to shock the
conscience or to be intolerable to fundamental fairness." Miltier v. Beorn, 896 F.2d 848,

851 (4th Cir. 1990)(citing Rogers v. Evans,792 F.2d 1052, 1058 (11th Cir. 1986)),
overruled in part on other grounds by Farmer, 511 U.S. at 837. Furthermore, in

evaluating a prisoner's complaint regarding medical care, the Court is mindful that
"society does not expect that prisoners will have unqualified access to health care" or to
the medical treatment of their choosing. Hudson, 503 U.S. at 9(citing Estelle, 429 U.S.
at 103-04). Absent exceptional circumstances, an inmate's disagreement with medical

personnel with respect to a course of treatment is insufficient to state a cognizable
constitutional claim, much less to demonstrate deliberate indifference. See Wright v.

Collins, 766 F.2d 841, 849(4th Cir. 1985)(citing Gittlemacker v. Prasse, 428 F.2d 1, 6
(3d Cir. 1970)).

Richardson was transferred to DCC on April 2, 2019. (ECF No. 42, at 2.) The

majority of allegations pertaining to Richardson's Eighth Amendment claim pertain to his
incarceration at GCC,prior to his incarceration at DCC. Richardson fails to coherently
set forth any facts that indicate he faces a substantial risk ofserious harm from his
conditions at DCC. Moreover, Richardson fails to allege facts that suggest Warden

Williams "subjectively recognized a substantial risk of harm" to Richardson's person and
that she "subjectively recognized that [her] actions were 'inappropriate in light of that
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risk.'" Parrish ex rel. Lee, 372 F.3d at 303 (quoting Rich, 129 F.3d at 340 n.2).^
Accordingly, Claim 6, Richardson's Eighth Amendment claim, will be dismissed without
prejudice.
F.

Free Speech

In Claim 8, Richardson contends that Defendants violated his right to free speech

because of the failure to provide a wider range of telephonic services for someone with

his disability. Specifically, Richardson alleges that he "can only utilize the TDD[^] for
collect calls, and is denied free conferencing services in accord with disability needs ...

or the use of a prepaid system afforded to non-disabled prisoners." (ECF No. 42145.)
Richardson further contends that:

by preventing plaintiff from communicating with people outside the prison
with the same accommodations as other disabled prisoners....[Djefendants
continue to deny plaintiff access to telecommunication devices that would
give him the ability to and opportunity to communicate with people outside
of prison on an equal basis with deaf prisoners who utilize conferencing
equipment and make free calls.
{Id. T1 124.)

^ Richardson alleges that he
met with Warden Williams on several occasions and requested that an interpreter
be present at all meeting with staff, medical and otherwise. Despite assurances no
interpreter of Video Remote Interpreter(VRI)has been made available, and a report
has been sent to. .. Warden Williams in this regard without redress or
accommodation.

(ECF No.42 ^ 52.)

^ "Telecommunication Device for the Deaf[which is] commonly referred to as 'TDD.'"
Tanney v. Boles, 400 F. Supp. 2d 1027, 1032(E.D. Mich. 2005)
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In the First Amendment context "prisoners have no per se constitutional right to use

a telephone." United States v. Footman, 215 F.3d 145, 155 (1st Cir. 2000). "Instead, 'a
prisoner's right to telephone access, if any, is subject to rational limitation based upon
legitimate security and administrative interests of the penal institution.'" Harrison v. Fed.
Bureau ofPrisons, 464 F. Supp. 2d 552, 555 (E.D. Va. 2006)(quoting

v. Simmons,

26 F. Supp. 2d 1288, 1293(D. Kan. 1998)). Furthermore, the prisoner bears the burden in
the first instance of proving the limitation on his right is not rationally related to legitimate

penological objectives. Strebe v. Kanode, 783 F. App'x 285, 288 (4th Cir. 2019)(citing
Overton v. Bazzetta, 539 U.S. 126, 132(2003)).

It is plain from the Particularized Complaint that Richardson has access to a TDD

telephone and numerous other ways of communicating with those outside of his prison.^
See id. (noting as one factor in favor of upholding a regulation "whether alternative
means of exercising the right exist that remain open to prison inmates"(quoting Meyer v.
U.S. Bureau ofPrisons, 849 F.3d 202, 213(4th Cir. 2017))). Richardson's complaint
appears to be that his right to free speech is violated because Defendants have not
provided him with the full spectrum of telephonic options available to nonimpaired
inmates, i.e., use of prepaid phone cards and free conferencing service. Given these

^ In his Memorandum in Opposition, Richardson, for the first time, asserts that he cannot use the
TDD phone because "it will not conform to the contrast and color which was recommended by a
specialist... (ECF No. 64, at 67-68.) Richardson fails to demonstrate that new factual
allegations such as this, asserted in a Memorandum in Opposition, can save his otherwise
deficient claims. Bates v. Green Farms Condo. Ass'n, 958 F.3d 470,483 (6th Cir. 2020)

(citations omitted)("[l]t is black-letter law that... a court evaluating .... a motion to dismiss[]
must focus only on the allegations in the pleadings.").
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allegations, Richardson has failed to state a violation of his First Amendment right to free
speech. Holloway v. Magness,666 F.3d 1076, 1079-80(8th Cir. 2012)("Just as [prison
officials] had no First Amendment obligation to provide any telephone service,[they] had
no obligation to provide that service at a particular cost to users."); see also Valdez v.
Rosenbaum, 302 F.3d 1039, 1048(9th Cir. 2002)(characterizing First Amendment right

as the right to communicate with persons outside prison walls and use of a telephone as
merely one ''means of exercising that right"). Moreover, any restriction of that right

passes constitutional muster as Richardson has failed to allege facts in the Particularized
Complaint that indicate the limitation on that right is not related to legitimate penological

objectives.'® Strebe, 783 F. App'x at 288 (citing Overton, 539 U.S. at 132). Claim 8 will
thus be dismissed without prejudice.

Richardson also seeks to bring a claim under Article I, Section 12 of the Virginia
Constitution, which states that,"any citizen may freely speak, write and publish his
sentiments on all subjects." Va. Const, art I, § 12. The Supreme Court of Virginia has
concluded,"Article I, § 12 of the Constitution of Virginia is coextensive with the free

speech provisions of the federal First Amendment." Key v. Robertson, 626 F. Supp. 2d
566, 583(E.D. Va. 2009)(quoting Elliott v. Commonwealth, 593 S.E.2d 263, 269(Va.
2004)). Thus, for the reasons discussed above, Richardson has failed to state a claim for
a violation of Article I, Section 12 of the Virginia Constitution. McCaffrey v. Chapman,

For example, Richardson does not indicate that the TDD can easily be configured for use of
prepaid phone cards or teleconferencing.
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No. l:17-cv-937(AJT/IDD), 2017 WL 4553533, at *5(E.D. Va. Oct. 12, 2017)

(observing that, "Plaintiffs state and federal constitutional free speech claims rise and
fall together"), aff'd^ 921 F.3d 159(4th Cir. 2019). Accordingly, Claim 8 will be
dismissed without prejudice.
G.

Denial of Access to the Courts

There are two types of denial-of-access to the courts claims:

forward-looking claims alleging "that systemic official action frustrates a
plaintiff or plaintiff class in preparing and filing suits at the present time,"
and backward-looking claims alleging that an official action has "caused the
loss or inadequate settlement ofa meritorious case,the loss ofan opportunity
to sue, or the loss of an opportunity to seek some particular order of relief."
Waller v. Hanlon,922 F.3d 590, 601 (5th Cir. 2019)(quoting Christopher v. Harbury,

536 U.S. 403,413-14(2002)). In either case, the right of access to the courts right "is

ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by
being shut out of court." Christopher, 536 U.S. at 415.

Here, from his sparse allegations, it appears Richardson is attempting to bring a
forward-looking claim. In order to plead a forward-looking claim, the plaintiff must
allege "[1] an arguable underlying claim and [2] present foreclosure of a meaningful
opportunity to pursue that claim." Broudy v. Mather, 460 F.3d 106, 121 (D.C. Cir. 2006).
With respect to the first element,"the named plaintiff must identify a 'nonfrivolous,'
'arguable' underlying claim." Christopher, 536 U.S. at 415 (quoting Lewis v. Casey, 518
U.S. 343, 353 & n.3 (1996)). With respect to second element, the plaintiff must show
that he is:
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"presently den[ied] an opportunity to litigate." [Christopher], 536 U.S. at
413. Such plaintiffs must show that a meaningful opportunity to pursue their
underlying claims was "completely foreclosed." Harbury[ v. Deutch, 233
F.3d 596,609(D.C. Cir. 2000); Harbury v. Deutch,244 F.3d 956,957(D.C.
Cir. 2001)]. In the prison context,for example,prisoners bringing a forwardlooking claim must show an "actual injury to [their] litigation." CrawfordEl v. Britton, 951 F.2d 1314, 1321 (D.C. Cir. 1991). No such injury exists if
a plaintiff can still meaningfully press his underlying claims because the

plaintiff is not being "presently den[ied] an opportunity" to meaningfully
litigate, even in "the short term."[Christopher], 536 U.S. at 413.

Broudy,460 F.3d at 121 (first, fourth, and fifth alterations in original).
Richardson fails to allege facts that plausibly suggest he is presently denied a

meaningful opportunity to litigate any claim. Id. First, he simply alleges what he
believes are deficiencies at DCC for a person with his limited vision. {See ECF

No.42

136-37.) But, Richardson fails to articulate, and it certainly is belied by the

record, that these shortcomings have completely foreclosed his ability to litigate any
claim. See Broudy, 460 F.3d at 121.

Next, Richardson suggests that he has been denied access to the courts by the

grievance system, which is not accessible for a person like him with limited vision. The
pertinent statute provides: "No action shall be brought with respect to prison conditions
under [42 U.S.C. § 1983] or any other Federal law, by a prisoner confined in any jail,

prison, or other correctional facility until such administrative remedies as are available
are exhausted." 42 U.S.C. § 1997e(a)(emphasis added). As explained by the United
States Court of Appeals for the Fourth Circuit, the lone exception to the PLRA's

exhaustion requirement is found in the text itself: "A prisoner need not exhaust remedies
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if they are not 'available.'" Germain v. Shearing 653 F. App'x 231, 232(4th Cir. 2016)
(quoting Ross v. Blake, 136 S. Ct. 1850, 1855 (2016)). Thus, to the extent that the

grievance process is not available to him by virtue of his disabilities and Defendants fail
to offer appropriate accommodations, he would be excused from his exhausting his
administrative remedies. Richardson has failed to allege facts that indicate the existence

of"an arguable underlying claim and present foreclosure of a meaningful opportunity to
pursue that claim." Broudy, 460 F.3d at 121. Accordingly, Claim 11 will be dismissed
without prejudice.
V.

CONCLUSION

Accordingly, Defendants' Partial Motion to Dismiss, or in the Alternative, Motion
to Sever(ECF No.47) will be granted in part and denied in part. The following claims
remain before the Court:

Claim 1

While incarcerated at DCC,the VDOC violated Richardson's rights
under Title II ofthe ADA.

Claim 2

While incarcerated at DCC,the VDOC violated Richardson's rights
under the Rehabilitation Act.

Claim 3

While incarcerated at DCC,the VDOC and Defendant Williams
violated Richardson's rights under the VDA.

Claim 5

While incarcerated at DCC,the VDOC and Defendant Williams
violated Richardson's rights under RLUIPA when they prevented

him from wearing a religious head covering in certain areas of the
prison.
Claim 7

While incarcerated at DCC,the VDOC and Defendant Williams

violated Richardson's free exercise rights under the First
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Amendment when they prevented him from wearing a religious head
covering in certain areas of the prison.

Additionally, Richardson's demand for monetary damages in Claim 1 is dismissed
without prejudice. Richardson's demand for monetary damages in Claims 5 and 7
against Defendant Williams in her official capacity will be dismissed. See Will v.
Michigan Dep't ofState Police, 49\ U.S. 58, 71 (1989). Any party wishing to file a
motion for summary judgment must do so within sixty(60) days ofthe date of entry
hereof.

The Clerk of the Court is DIRECTED to send a copy of the Memorandum Order
to Richardson and counsel of record.
It is so ORDERED.
/s/

Henry E. Hudson
Senior United States District Judge

Date:

Richmond, Virginia

28