Musselman v. Clarke
Filing
10
OPINION. Signed by Judge James P. Jones on 05/20/2014. (kab)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
DAVID MUSSELMAN,
Plaintiff,
v.
HAROLD W. CLARKE,
Defendant.
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Case No. 7:14CV00186
OPINION
By: James P. Jones
United States District Judge
David Musselman, Pro Se Plaintiff.
David Musselman, a Virginia inmate proceeding pro se, has filed this civil
rights action under 42 U.S.C. § 1983, alleging that the Director of the Virginia
Department of Corrections (“VDOC”) has violated his constitutional rights by
failing to confine him in a state prison facility, rather than a local jail. The court
filed the action on condition that the plaintiff consent to payment of the filing fee
and demonstrate exhaustion of administrative remedies.
Upon review of the
record, I find that while the plaintiff has fulfilled these prefiling conditions, his
lawsuit must be summarily dismissed without prejudice as legally frivolous.
Mussleman’s claim is brief and to the point:
To my understanding as a DOC inmate I am not suppose[d] to be
charged a dollar a day[.] I am also suppose[d] to have one hour of
recreation every day[.] Also I am being charged ten dollars for my
medical visits and the[y] are not doing the necessary things that need
to be done for my medical issues or my mental health issues. And if I
was moved to the Department of Corrections in the correct time
period by Mr. Clarke then I could have these issues taken care of and
handled in the appropriate manner.
(Compl. 5.) As relief, Musselman seeks transfer from the Roanoke City Jail to a
VDOC prison facility.
The court must dismiss any action or claim filed by a prisoner against a
governmental entity or officer if the court determines the action or claim is
frivolous, malicious, or fails to state a claim on which relief may be granted. 28
U.S.C. § 1915A(b)(1). To state a cause of action under § 1983, a plaintiff must
establish that he has been deprived of rights guaranteed by the Constitution or laws
of the United States and that this deprivation resulted from conduct committed by a
person acting under color of state law. West v. Atkins, 487 U.S. 42 (1988).
Under state law, a Virginia inmate has no right to be housed at a VDOC
facility within a set time period.
The VDOC Director has express statutory
discretion to prioritize transfers of inmates from local jail facilities to VDOC
facilities as necessary for security and safety reasons. Va. Code Ann. § 53.120(C). Under federal law, a convicted felon serving a prison sentence has no
independent due process right to be housed in any particular prison or in a prison
with less restrictions or more access to programs and recreation.
Olim v.
Wakinekona, 461 U.S. 238, 245 (1983). Because Musselman thus has no right to
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be transferred to the VDOC at a particular time, the mere fact that Musselman
remains at the local jail does not implicate his federal due process rights.
The complaint also states no actionable claim against the Director,
personally, for the other problems Musselman has allegedly had while housed at
the local jail.
Musselman states no facts indicating that the Director acted
personally to deprive him of medical care, mental health treatment, or recreation at
the jail or to charge him fees for his medical care or for his incarceration there. See
Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.1977) (finding that liability will
only lie where it is affirmatively shown that the official charged acted personally in
the deprivation of the plaintiff’s rights because the doctrine of respondeat superior
has no application under § 1983).
Because Musselman’s allegations do not provide the factual or legal basis
for any actionable § 1983 claim against the defendant, I must dismiss his
Complaint without prejudice, pursuant to § 1915A(b)(1), as frivolous. A separate
Final Order will be entered herewith.
DATED: May 20, 2014
/s/ James P. Jones
United States District Judge
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