Hardoby v. Southwest Virginia Regional Jail Authority

Filing 31

MEMORANDUM OPINION. Signed by District Judge Elizabeth K. Dillon on 3/21/2017. (slt)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
MAXWELL TYLER HARDOBY,
Plaintiff,
v.
SOUTHWEST VIRGINIA
REGIONAL JAIL AUTHORITY,
Defendant.

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Civil Action No. 7:16cv00103

By: Elizabeth K. Dillon
United States District Judge

MEMORANDUM OPINION
Maxwell Tyler Hardoby, a Virginia inmate proceeding pro se, filed a civil rights action
pursuant to 42 U.S.C. § 1983 against the Southwest Virginia Regional Jail Authority (“Jail
Authority”).1 Defendant filed a motion to dismiss, and Hardoby responded, making this matter
ripe for disposition.2 Having considered the record, the court will grant in part and deny in part
defendant’s motion to dismiss.

1

Hardoby also filed a motion for preliminary injunctive relief (Dkt. No. 13) seeking access to the Federal
Rules of Civil Procedure and this court’s local rules. When he requested access to those rules, he was incarcerated
in the Southwest Virginia Regional Jail facility. After filing this action and making his request for the rules,
however, he was transferred to Bland Correctional Center, a Virginia Department of Corrections facility. Since his
transfer, there is no indication that he still requests this access. When a claim no longer presents a viable legal issue
to resolve, the claim becomes moot. Powell v. McCormack, 395 U.S. 486, 496 (1969). If developments occur
during the course of a case which render the court unable to grant a party the relief requested, the claim(s) must be
dismissed as moot. Blanciak v. Allegheny Ludlum Co., 77 F.3d 690, 698-99 (3d Cir. 1996). The transfer or release
of a prisoner generally renders moot any claims for injunctive or declaratory relief relating to the former place of
confinement. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Williams v. Griffin, 952 F.2d 820, 823
(4th Cir. 1991) (prisoner’s transfer rendered moot his claims for injunctive and declaratory relief); Magee v. Waters,
810 F.2d 451, 452 (4th Cir. 1987) (holding that transfer of a prisoner rendered moot his claim for injunctive relief);
Taylor v. Rogers, 781 F.2d 1047, 1048 n.1 (4th Cir. 1986) (holding that transfer made moot claim for injunctive
relief); Ross v. Reed, 719 F.2d 689, 693 (4th Cir. 1983); Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir. 1983)
(“The hallmark of a moot case or controversy is that the relief sought can no longer be given or is no longer
needed.”). Thus, the court finds that Hardoby’s request for preliminary injunctive relief is moot and will deny the
motion.
2

To the extent Hardoby may be attempting to raise any new claims in his responses to the motion to
dismiss, the court notes that any proposed amendments must be made in accordance with Rule 15 of the Federal
Rules of Civil Procedure. Because his are not, any new claims raised in Hardoby’s response are not considered by
the court at this time. Hardoby may raise any such claims in a separate action after exhausting available
administrative remedies.

I. BACKGROUND
Hardoby alleges that on February 15, 2016, upon reviewing his inmate account report, he
noticed that on multiple occasions his account had been debited twice for the $1.00 daily housing
fee. Because Hardoby could only access the past four to six weeks of his account statements, he
requested a hard copy of an itemized summary of his inmate account. Two days later, a jail
employee notified Hardoby that the double charges were a “known issue” and would take up to a
month to resolve. For the time period between August 2015 and February 2016, Hardoby was
overcharged a total of $5.00. He was also charged $3.50 for the 35-page printout of his account
that he requested (10¢ per page). Hardoby alleges that he was charged a copy fee as
“punishment” for “looking into” the issue with his inmate account. On February 16, 2016,
Hardoby requested a refund of the copy fee ($3.50) and overcharged housing fees ($5.00). His
request was denied. After Hardoby filed grievances on the issue, he states that he was charged
an additional 5¢ per page for the copies of his inmate account. Hardoby alleges that he was
charged the additional copy fee in retaliation for his filing of grievances.
Hardoby also contends that he is not allowed “reasonable access to [the] law library
resources.” In support of his claim, Hardoby states that he is only given 30 minutes of access to
the library at a time. He argues that this is “not enough time to read even one case.” He also
states that he requested copies of three cases and one section of the Virginia Code and did not
receive the copies until a week later and that, when he does get printouts of cases, they are
summaries of the cases instead of the full text. Hardoby further contends that the jail charges
inmates to get copies of cases “despite the issue with limited time to read the materials on the
electronic resource.”

2 

Following the granting of plaintiff’s motion to amend (Dkt. Nos. 7-8), Hardoby’s final
claim is that the jail will not allow him to have a newspaper subscription of his choice because
the jail states that it “presents a security risk.”3 Instead, he only has access to the two
newspapers, “one national and one local,” which the jail provides to inmates. In response to the
motion to dismiss, Hardoby clarifies that the jail provides two copies of USA Today to the pod.
Hardoby alleges that the newspapers must be returned within 24 hours, which he argues is not
enough time for up to 55 inmates to read them.4

3

In response to a grievance that Hardoby attaches to his first supplemental complaint (Dkt. No. 7), jail staff
stated that allowing a newspaper subscription, beyond those provided by the jail, presents “a security issue and fire
hazard when allowed to build up.” In response to that, Hardoby proposes that he would return each newspaper
before receiving a new one, which would result in him only having one newspaper at a time. Jail staff replied to his
proposal by stating that the jail “does not allow this.”
4

Hardoby filed a second motion to amend his complaint (Dkt. No. 17) to add claims that the jail is: 1)
overcharging for telephone calls (he believes there are lower rates at other facilities) and commissary items (he pays
85¢ for ramen that costs 10¢ in a grocery store), and 2) not properly using the profits from the commissary sales.
However, because his allegations fail to state viable federal claims, the court will deny the motion to amend as
futile. While leave to amend shall be freely given when justice so requires, Fed. R. Civ. P. 15(a), it should be denied
“when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving
party, or the amendment would have been futile.” Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006). In this case,
the proposed amendments would be futile because they do not state cognizable federal claims.
Hardoby’s claims concerning the cost of telephone calls and commissary items do not implicate a violation
of a federal right. “[P]risoners are [not] entitled to a specific rate for their telephone calls.” Harrison v. Fed. Bureau
of Prisons, 464 F. Supp. 2d 552, 555-56 (E.D. Va. 2006) (quoting Johnson v. California, 207 F.3d 650, 656 (9th Cir.
2000)). And no federal constitutional provision requires jails to provide inmates with a commissary to purchase
food items at any price. See Tokar v. Armontrout, 97 F.3d 1078, 1083 (8th Cir. 1996) (“[W]e note that we know of
no constitutional right of access to a prison gift or snack shop . . . .”). Once a correctional facility voluntarily
decides to set up a commissary for inmates, the Constitution does not require the facility to offer its commissary
items for sale at or near cost. See French v. Butterworth, 614 F.2d 23, 25 (1st Cir. 1980); Trujillo v. Young, No.
7:02-cv-01083, 2003 U.S. Dist. LEXIS 27756, at *9, 2003 WL 23312781, at *3 (W.D. Va. June 5, 2003) (holding
that inmate has no protected right to purchase commissary items at low prices); Hopkins v. Keefe Commissary
Network Sales, No. 07-745, 2007 U.S. Dist. LEXIS 50961, at *2, 2007 WL 2080480, at *5 (W.D. Pa. July 12, 2007)
(holding no right to restrain commissary from charging even exorbitant prices); Pepper v. Carroll, 423 F. Supp.2d
442, 449 (D. Del. 2006) (holding that inmate has no constitutionally protected right to purchase commissary items as
cheaply as possible); Rodriguez v. Swanson Servs. Corp., No. 01-117-P-C, 2001 U.S. Dist. LEXIS 6328, at *4, 2001
WL 506871, at * 1 (D. Me. May 11, 2001) (holding commissary pricing does not implicate constitutional concerns).
Accordingly, neither of Hardoby’s claims concerning overcharging states a viable § 1983 claim, and the court will
deny his motion to amend to add these claims.
Hardoby also alleges that the jail is not properly using the commissary profits. Specifically he is concerned
with the “lack of benefit imparted to inmates” because “there is no accounting of how those resources are being
used” that is available to inmates. Hardoby alleges that the foregoing “suggest[s that] there is an extremely high
probability of these funds not being utilized within the scope of the law’s requirements.” The court finds that
Hardoby’s allegations are far too speculative and conclusory to state a constitutional claim. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007) (a plaintiff must assert factual allegations that raise a right to relief that is
“plausible on its face,” not one that is speculative or merely “conceivable” ); Aziz v. Alcolac, Inc., 658 F.3d 388, 391
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II. DISCUSSION
A. Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of a complaint to determine whether the plaintiff has properly stated a claim; “it does
not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”
Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). In considering a Rule
12(b)(6) motion, a court must accept all factual allegations in the complaint as true and must
draw all reasonable inferences in favor of the plaintiff. Erickson v. Pardus, 551 U.S. 89, 94
(2007). Legal conclusions in the guise of factual allegations, however, are not entitled to a
presumption of truth. Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Although a complaint “does not need detailed factual allegations, a plaintiff’s obligation
to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions,
and a formulaic recitation of a cause of action’s elements will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citations and quotations omitted). “Factual allegations must
be enough to raise a right to relief above the speculative level,” id., with all the allegations in the
complaint taken as true and all reasonable inferences drawn in the plaintiff’s favor, Chao v.
Rivendell Woods, Inc., 415 F.3d 342, 346 (4th Cir. 2005). Rule 12(b)(6) does “not require
heightened fact pleading of specifics, but only enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at 570. Consequently, “only a complaint that states a
plausible claim for relief survives a motion to dismiss.” Id. A claim is plausible if the complaint
contains “factual content that allows the court to draw the reasonable inference that the defendant

(4th Cir. 2011) (“While a court must accept the material facts alleged in the complaint as true, statements of bare
legal conclusions ‘are not entitled to the assumption of truth’ and are insufficient to state a claim.”). Accordingly,
the court will also deny his second motion to amend to add this claim.

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is liable for the misconduct alleged,” and if there is “more than a sheer possibility that a
defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.
In order to allow for the development of a potentially meritorious claim, federal courts
have an obligation to construe pro se pleadings liberally. See, e.g., Boag v. MacDougall, 454
U.S. 364, 365 (1982) (citation omitted). Moreover, “[l]iberal construction of the pleadings is
particularly appropriate where . . . there is a pro se complaint raising civil rights issues.” Smith
v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (quoting Loe v. Armistead, 582 F.2d 1291, 1295 (4th
Cir. 1978)). Nevertheless, “[p]rinciples requiring generous construction of pro se complaints are
not . . . without limits.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). “A
pro se plaintiff still must allege facts that state a cause of action.” Bracey v. Buchanan, 55 F.
Supp. 2d 416, 421 (E.D. Va. 1999) (quoting Sado v. Leland Memorial Hospital, 933 F. Supp.
490, 493 (D. Md. 1996)).
B. Account Overcharges, Retaliation, and Photocopy Policy
Hardoby names only the Jail Authority as a defendant to this action. “Local governing
bodies . . . can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where
the . . . action that is alleged to be unconstitutional implements or executes a policy statement,
ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.”
Monell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658, 690 (1978). The entity is not liable under
§ 1983 merely because of the actions of its employee because the doctrine of respondeat
superior does not apply. Id. at 691. Thus, a governmental entity, such as a regional jail
authority, is liable under § 1983 only when the entity itself is a “moving force” behind the
deprivation. Polk Cnty. v. Dodson, 454 U.S. 312, 326 (1981). That is, the entity’s official policy

5 

or custom must have played a part in the alleged violation of federal law. Oklahoma City v.
Tuttle, 471 U.S. 808, 817-18 (1985).
In this case, Hardoby does not sufficiently allege that any official policy or custom of the
Jail Authority was responsible for the now-refunded account overcharges of $5.00 or the alleged
retaliation. In response to the motion to dismiss, Hardoby alleges that he “has experienced and
witnessed many instances of retaliatory behavior by the defendant jail’s staff operators.”
However, his allegation is insufficient to establish that the alleged retaliation in this case is based
on a policy or custom of the Jail Authority. The only alleged incidents of retaliation raised in
this case are that Hardoby was charged the 10¢ per page fee “to discourage [him] and/or others
from exercising [their] only means of monitoring inmate accounts with a comprehensive scope,”
and that he was charged the additional 5¢ per page fee in retaliation for using the grievance
procedure and “expressing his displeasure.” Hardoby “concedes [that] the copy fees assessed to
his inmate account may be legal,” but argues that the jail’s “actual policy (10¢ per page) differed
from the printed policy (15¢ per page), and the defendant jail only began acting on [its] printed
policy as a subsequent remedial action to defend itself against Mr. Hardoby’s claim.” Although
the “printed policy” is that the jail charges 15¢ per page for copies, Hardoby states that
sometimes inmates are not charged for copies, sometimes they are charged 10¢ for copies, and
sometimes they are charged 15¢ for copies. He does not allege that there is a consistent pattern
to the varying copy fees. The court concludes that Hardoby’s allegations are insufficient to
establish that any alleged retaliation is based on a policy or custom of the Jail Authority and,
thus, will grant the motion to dismiss as to overcharging and retaliation.

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To the extent Hardoby bases his claim that he was charged for photocopies of his inmate
account report statements, which he requested in order to verify that his account had been
properly debited, pursuant to a Jail Authority policy that requires a charge for copies, his claim
fails. Inmates have no specific constitutional right to free or unlimited photocopies. See, e.g.,
Lyons v. Clark, 694 F. Supp. 184, 188 (E.D. Va. 1988); Cottrell v. Jabe, No. 7:10cv505, 2012
U.S. Dist. LEXIS 28445, at *37-38, 2012 WL 830469, at *13 (W.D. Va. Feb. 17, 2012); Johnson
v. Moore, 948 F.2d 517, 521 (9th Cir.1991); Young v. Larkin, 871 F. Supp. 772, 782 n. 19 (M.D.
Penn.1994); Dugar v. Coughlin, 613 F. Supp. 849, 853 (S.D.N.Y.1985). Rather, to make out a
claim under § 1983 based on denial of copying privileges, an inmate must show that the denial
prevented him from exercising his constitutional right of access to courts. Jones v. Franzen, 697
F.2d 801, 803 (7th Cir. 1983). “The reasonableness of a prison’s photocopy policy becomes
relevant only after the prisoner has shown that the policy is impeding that access, for if it is
unreasonable, but not impeding, he has not made out a prima facie case of violation of his
constitutional rights.” Id. Hardoby does not allege that failing to give him free copies of his
inmate account report statements impeded his access to courts. Accordingly, the court finds that
Hardoby’s allegations concerning the photocopy charges fail to state a claim, and the court will
grant defendant’s motion to dismiss as to this claim.
C. Access to the Law Library
Hardoby contends that, while incarcerated at the Southwest Virginia Regional Jail
facility, he was provided inadequate access to the law library at the jail which frustrated his
access to courts. Inmates have a constitutional right to reasonable access to the courts. See
Lewis v. Casey, 518 U.S. 343, 351-53 (1996); Bounds v. Smith, 430 U.S. 817, 838 (1977); Ex

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parte Hull, 312 U.S. 546 (1941). In order to bring a denial of access to the courts claim, a
plaintiff must (1) identify a nonfrivolous, arguable underlying claim; (2) show official acts
frustrating litigation; and (3) propose a remedy that may be awarded as recompense but not
otherwise available in some suit that may yet be brought. Christopher v. Harbury, 536 U.S. 403,
415 (2002). The right of access to the courts “is ancillary to the underlying claim, without which
a plaintiff cannot have suffered injury by being shut out of court.” Id. Thus, in order to state a
constitutional claim of denial of access to the courts, a plaintiff must allege specific injury
resulting from the alleged denial. See Lewis, 518 U.S. at 349 (holding that an inmate alleging
denial of access to the courts must be able to demonstrate “actual injury” caused by the policy or
procedure in effect at the place of incarceration in that his non-frivolous legal claim had been
frustrated or was being impeded); Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996)
(plaintiff failed to identify any actual injury resulting from official conduct); Strickler v. Waters,
989 F.2d 1375, 1384 (4th Cir.1993) (Prisoner had a “basic requirement that he show specific
harm or prejudice from the allegedly denied access.”). The predicate claim must be described
well enough to apply the “nonfrivolous” test and to show that the “arguable” nature of the
underlying claim is more than hope. Christopher, 536 U.S. at 416.
The right to access to the courts is intended to permit inmates “to litigate post-conviction
legal issues, such as habeas corpus and civil rights actions.” Harvey v. Horan, 278 F.3d 370, 386
(4th Cir. 2002). However, “a state has no affirmative duty to ‘enable the prisoner to discover
grievances, and to litigate effectively once in court.” Id. (citing Lewis, 518 U.S. at 354). “Thus,
although a state must provide prisoners with meaningful access to the legal system, it is not
obligated to maximize the prisoner’s chances of prevailing in his postconviction action.” Id.
While prison officials may not “actively interfer[e] with inmates’ attempts to prepare legal

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documents, or file them,” Lewis, 518 U.S. at 350, “[p]rison policies that cause mere
inconvenience or delay of an inmate’s litigation efforts do not violate his right to access the
courts,” Makdessi v. Hinkle, No. 7:14CV00034, 2014 U.S. Dist. LEXIS 63231, at *10, 2014 WL
1782820, at *4 (W.D. Va. May 5, 2014). “The fact that an inmate may not be able to litigate in
exactly the manner he desires is not sufficient to demonstrate the actual injury element of an
access to courts claim.” Godfrey v. Washington County, Va., Sheriff, No. 7:06cv187, 2007 U.S.
Dist. LEXIS 60519, at *39, 2007 WL 2405728, at *13 (W.D. Va. Aug. 17, 2007).
In support of his access to courts claim, Hardoby alleges that he is only given access to
the library for 30 minutes at a time, requested documents can take up to a week to obtain, and he
is charged by the page to get copies of cases. In response to defendant’s motion to dismiss,
Hardoby claims that his “poor access to legal resources” is “primarily responsible” for: 1)
placing him “at a disadvantage” in responding to defendant’s motion to dismiss, and 2) his “lack
of knowledge” as to how to request a jury trial, request appointment of counsel, request removal
of defendant’s counsel for a conflict of interest,5 or file a motion for summary judgment, “the
motions he previously filed, or any other pertinent motions.” Hardoby states that he also wants
to research the possibility of filing for divorce and “other issues of a constitutional nature,” but
“time constraints and insufficient books/resources prevent [his] ability” to do the research and
file a petition. Hardoby states that his “ability to proceed is being hindered as a result of the poor
and slow access/process of legal research” available at the jail. He argues that the “claim being

5

Defendant’s counsel is a member of Street Law Firm, LLP. Hardoby alleges that “Street Law Firm has a
partner and had another attorney on the faculty of the Appalachian School of Law,” where Hardoby was a former
student. The partner was Hardoby’s professor at the law school before Hardoby was incarcerated. Hardoby claims
that as a professor at the law school, the partner would have “personal knowledge of [Hardoby’s] entire life history
through his application to the law school.” Hardoby also alleges that another attorney at the Street Law Firm
worked for the Commonwealth’s Attorney’s Office when Hardoby was sentenced “for his current term of
incarceration.” Hardoby does not explain how these relationships work to create a “conflict of interest” in the
instant case.
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hindered most is the claim alleging non-compliance with state law in the use of commissary
profit for inmate benefit.” Hardoby alleges that he has had difficulty doing research related to
“commissary sales and use of profits from those sales for inmate benefit.”6
Hardoby fails to identify a nonfrivolous, arguable underlying claim to which he was
denied access to the court. While Hardoby’s litigation efforts may have been inconvenienced or
delayed by his accessibility to the jail’s law library, his allegations are insufficient to state a
constitutional claim. Accordingly, the court will grant defendant’s motion to dismiss as to this
claim.
D. Newspaper Subscription Policy
Hardoby alleges that he was denied a personal subscription to a newspaper. Inmates
clearly retain their First Amendment right of free speech in prison, which includes the right to
access publications. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). However, the
Constitution allows greater restriction of First Amendment rights in a prison setting. See Beard
v. Banks, 548 U.S. 521, 528 (2006); Turner v. Safley, 482 U.S. 78, 84-85 (1987); Overton v.
Bazzetta, 539 U.S. 126, 131 (2003) (“Many of the liberties and privileges enjoyed by other
citizens must be surrendered by the prisoner. An inmate does not retain rights inconsistent with
proper incarceration.”). In determining whether the jail policy denying access to a publication
violates the First Amendment, the court must apply a reasonableness test. Thornburgh v. Abbott,
490 U.S. 401, 413 (1989). In order to be valid, the prison regulation must be “reasonably related
to legitimate penological interests” and must not be an exaggerated response” to meet the
objective. Id. The court looks to four factors: whether the regulation is rationally connected to a
legitimate and neutral government objective; whether the inmate has alternative means of

6

The court notes that, as previously discussed, Hardoby’s allegations related to the commissary funds fail
to state a cognizable federal claim.      
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exercising the right; the impact on the guards and other inmates if accommodation is made for
the asserted right; and whether there are obvious alternatives to the regulation that show the
regulation is an exaggerated response to prison concerns. Turner, 482 U.S. at 89-91. When
assessing the reasonableness of a policy or regulation, courts accord “substantial deference to the
professional judgment of prison administrators, who bear significant responsibility for defining
the legitimate goals of a corrections system and for determining the most appropriate means to
accomplish them.” Overton, 539 U.S. at 132; Pell v. Procunier, 417 U.S. 817, 826-27 (1974).
Given the procedural posture of this case, the court cannot assess the factors without additional
information about the Jail Authority’s policy and the reasons for the policy. Accepting all
factual allegations in the complaint as true and drawing all reasonable inferences in favor of
Hardoby, the court finds that Hardoby’s allegations are sufficient to state a plausible First
Amendment claim against the Jail Authority. Therefore, the court will deny defendant’s motion
to dismiss as to this claim.
Finally, and although not raised by the Jail Authority, the court notes that Hardoby’s
complaint does not state what remedy he seeks if he were to prevail in this case. Because
Hardoby’s case may not go forward if he seeks no relief from this court, the court grants
Hardoby twenty (20) days to amend his complaint to state a request for relief. Hardoby is
advised that if he fails to amend his complaint to state a request for relief, his complaint may be
summarily dismissed.
III. CONCLUSION
For the reasons stated herein, the court will deny Hardoby’s second motion to amend
(Dkt. No. 17); will deny Hardoby’s motion for preliminary injunctive relief as moot (Dkt. No.
13); will grant in part and deny in part defendant’s motion to dismiss (Dkt. No. 18); will direct

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Hardoby to amend his complaint to include a request for relief within twenty (20) days or risk
dismissal of his case; and will direct defendant, pursuant to Standing Order 2013-6, to file a
motion for summary judgment, supported by affidavit(s), within thirty (30) days of the docketing
of Hardoby’s amended complaint referenced above.
An appropriate order will be entered.
Entered: March 21, 2017.

/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge

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