Manning v. Virginia Dept. of Corrections, et al

Filing 60

MEMORANDUM OPINION. Signed by Senior Judge Glen E. Conrad on 3/30/2019. (ssm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
DOUGLAS R. MANNING,
Plaintiff,

v.

WARDEN LARRY T. EDMONDS,
Defendant.

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CASE NO. 7:17CV00103
MEMORANDUM OPINION
By: Hon. Glen E. Conrad
Senior United States District Judge

This prisoner civil rights action under 42 U.S.C. § 1983, filed by Douglas R. Manning, a
Virginia inmate proceeding pro se, is now before the court on summary judgment. His remaining
claim contends that officials of the Virginia Department of Corrections (“VDOC”) and Dillwyn
Correctional Center (“Dillwyn”) impaired his ability to access the courts related to state habeas
corpus claims and possible claims under the Americans with Disabilities Act (“ADA”). After
review of the record, the court concludes that the motion for summary judgment must be granted.
I. Background
Manning arrived at Dillwyn on December 21, 2015.1 Prior to that transfer, he had been
incarcerated at the Hampton Roads Regional Jail from June 27, 2014 to December 21, 2015, and
before that, at the Chesapeake City Jail from August 27, 2013 to June 27, 2014. State court records
available on the internet indicate that Manning was sentenced on December 19, 2014, in the

1

This summary of events is based on the amended complaint, ECF No. 16; a separate motion to amend,
ECF No. 35; the affidavit by C. Holman, a Treatment Office Services Specialist (“OSS”) at Dillwyn, Mem. Supp.
Mot. Summ. J. Holman Aff. Ex. 1-2, ECF No. 52-1; and Manning’s rebuttal brief, ECF No. 54. This evidence is
undisputed, unless otherwise noted. Holman replaced Mrs. Harris, who was the OSS at Dillwyn during times relevant
to Manning’s § 1983 claims. Neither Holman nor Harris is a defendant in this case.

Chesapeake Circuit Court to concurrent terms of twenty years, with thirteen years suspended, on
a conviction for aggravated sexual battery, and one year for a probation violation.2
For security reasons, Dillwyn officials first assigned Manning to the Reception Unit,
designated for inmates newly transferred to a VDOC facility. Such inmates are still undergoing
their intake and classification processes to determine their security needs and assign them to
appropriate security levels. Part of that process is identifying any “keep separates”—inmates who,
for security reasons, are not permitted to interact with each other. Mem. Supp. Mot. Summ. J.
Holman Aff. ¶ 9 and n. 1, ECF No. 52-1. Until officials have classified an inmate according to
such security needs, allowing him to co-mingle and interact with other inmates would create a
security risk. For that reason, inmates assigned to the Reception Unit cannot physically access
Dillwyn’s law library. Manning alleges that he received a security classification in February 2016.
Mem. Opp’n 6, ECF No. 54. Nevertheless, from December 21, 2015, through March 23, 2017, he
remained in the Reception Unit for security reasons because he was a probation violator. See Am.
Compl. 41, ECF No. 5; Mem. Opp’n 16, ECF No. 54.3 In short, for this entire period, Manning
was denied physical access to the law library. 4
Manning was not without access to legal materials during this time, however. An inmate
in the Reception Unit or the medical unit who cannot go to the law library may file a request form
for materials from the law library—two statutes or legal cases at a time. The materials will be

2

It is appropriate for this court to take judicial notice of plaintiff’s prior cases. See Colonial Penn Ins. Co.
v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“The most frequent use of judicial notice of ascertainable facts is in
noticing the content of court records”).
3

The citations to Manning’s submissions in this opinion state the page number(s) assigned by the court’s
electronic case filing program.
4 During part of this period, Manning was temporarily housed in the Medical Unit. Inmates housed in the
Medical Unit at Dillwyn are not permitted to go from there to the law library and back, because such movement is
disruptive to the medical staff and other patients. See Holman Aff. n. 2, ECF No. 52-1.

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photocopied and delivered to him to use and then return, which permits him to request two more
items. Am. Compl. 41, ECF No. 5; Holman Aff. ¶ 10, ECF No. 52-1. Manning found this system
of obtaining legal materials to be frustrating, because he did not know which cases to request for
general research of a topic. However, Dillwyn inmates may also fill out a request to be scheduled
to meet with an institutional attorney who visits offenders to provide legal consultation or
information.
On February 21, 2016, Manning submitted a request for a “state habeas corpus form,” but
received only a federal habeas corpus form. Am. Compl. 16, ECF No. 5. On March 15, Manning
filed requests asking the library staff for: information about “the different kinds of injunctions
[and] how to file,” “the statute of limitations on filing a ‘state’ habeas,” a “state habeas” form
instead of the federal form previously provided, two “civil injunction (Emergency)” forms, two
“standard motion form[s],” and two “forma pauparis [sic] form[s].” Id. at 19-20. He received
only the federal habeas form on March 17, 2016. On March 15, 2016, Manning also requested
“info pertaining to transfer (assigned security levels vs. medical conditions,” classification of
medically disabled prisoners,” and information about “prisoner medically disabled protection from
potential serious risk of injury.” Id. at 21. He did not find the materials that library staff provided
to be helpful. Other legal materials Manning requested were not available in the Dillwyn law
library.5 Staff suggested that Manning address requests for such materials to the institutional
attorney. Despite Manning’s problems obtaining all the legal materials he wanted, on March 21,

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These unavailable materials Manning requested included: “U.S. Dept. of Justice Law Enforcement
Assistance Administration Compendium of Model Correctional Legislation and Standards—(2d ed. 1975) and Rights
of Offenders, Standard 2-6 (1973),” Am. Compl. 25, ECF No. 5; and a 1975 University of Chicago Law Review article
called “The Rights of Prisoners to Medical Care and the Implications for Drug Dependent Prisoners and Pretrial
Detainees,” id. at 28.

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2016, he filed an “emergency medical injunction” and “TRO” in Buckingham County Circuit
Court.6 Compl. 2-3, ECF No. 1.
Around this same time, Manning requested to meet with an institutional attorney. He
received an undated “Institutional Attorney Receipt” indicating that said he would be notified
when the attorney arrived. The document also provided a name and address where Manning could
write directly to the attorney for “urgent legal assistance.” Am. Compl. 22, ECF No. 5 (emphasis
in original). On March 30, 2016, Manning met with Institutional Attorney Marsden, who allegedly
had no experience “in civil law and did not even recognize the forms” the law library had provided
to Manning. Mem. Opp’n 8, ECF No. 54. The attorney took a written list of questions Manning
had prepared and promised to answer the questions by mail and send “proper forms,” but Manning
never received any such mailing. Id. Manning saw Attorney Marsden again on approximately
May 15, 2016. Id. at 8. The attorney said he had sent Manning the items he had promised during
their prior visit and would mail them again, but Manning never received any mailing from
Marsden.
On May 20, 2016, Manning wrote a request to the law library staff, stating that he could
not do necessary research without accessing the law library and complaining that two institutional
attorney visits had not sufficiently helped him. Am. Compl. 29, ECF No. 5. A law library official
forwarded one of Manning’s requests to Mr. Oates, the Chief of Housing and Programs, asking
him to arrange for Manning to access the law library himself, or to otherwise help him obtain the
materials he needed. Id. Mr. Oates wrote to Manning, asking for more specific details about what
his research needs were. Id. at 30. On May 27, 2016, Manning wrote back to Oates and stated

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Manning states that in May 2015, he suffered an injury that required surgery and left him “nonambulatory
and confined in a wheelchair.” Compl. 3, ECF No. 1. He notes that he has also been diagnosed with “spondylosis,
degenerative lumbar and cervical spine and disc disease, with severe sciatica that is a chronic condition with daily
consistent acute painful functional limiting symptoms.” Id.

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that he needed to do research for “claims for criminal and civil cases [that he was] currently
attempting to file.” Id. at 31. Oates responded that a law clerk would meet with Manning to
address his concerns. Id.
On May 31, 2016, Manning filled out an offender request form requesting the “ADA found
at 42 U.S.C., 12101-12213.” Id. at 32. Manning received only the cover page of the statute and
not its full contents.
On April 7, 2016, Manning filed a “Motion to Subpoena” in the Chesapeake Circuit Court,
seeking to obtain information about his criminal case there, No. “14-233,” which was his
aggravated sexual battery charge. Mem. Opp’n Attach., at 1, ECF No. 54-2. He intended to use
these materials to prepare his habeas corpus claims, but the court never sent them.
In June of 2016, Manning met with Institutional Attorney Jody Fariss, and explained his
“legal needs and urgency [and she] was “able to obtain parts of [his] criminal record so [he] would
have a start for researching to file a post-conviction remedy.” Mem. Opp’n 12, ECF No. 54. She
also provided him with a list of materials to help prisoners file civil rights lawsuits. Am. Compl.
35, ECF No. 5.
Thereafter, Manning requested a Prisoner Self-Help Litigation Manual and was told that
he had been scheduled to see the institutional attorney, who would bring the requested material.
On about June 8, 2016, Manning talked to another law library aid, who stated his opinion that
Manning needed physical access to the law library and help “learning ‘basic research’ in order to
successfully be able to adequately present [his] cases to the courts.” Mem. Opp’n 10, ECF No.
54.. Shortly thereafter, on about June 9, 2016, Manning spoke to Mr. Oates, attempting “to inquire
concerning his legal needs and show him statute timelines for post-conviction remedy.” Id.
Manning allegedly told Oates that he “only had approx. 150 days before [his] statute of limitations

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ran out on [his] post conviction remedy, [Oates] referred [him] to the Inst. Attorney.” Mot. Am.
5, ECF No. 35. Manning also states that the deadline for filing his state habeas corpus petition
was December 19, 2016, and that on unspecified dates, he “sent a copy of his ‘statute of limitation’
to the Law Library and also showed” it to his counselor. Mem. Opp’n 17, ECF No. 54.
When Manning saw Institutional Attorney Thomas on September 8, 2016, Thomas said
“he was not made aware” that he should bring Manning a Prisoner Self Help Manual, didn’t know
what that was, and was not reimbursed for buying books or making copies of materials for inmates.
Am. Compl. 7, ECF No. 5. Thomas asked Manning to explain his legal problem and then advised
him, “give up, you[’]ll never win.” Id.
Manning filed an informal complaint on September 8, 2016, stating:
It is evident from my initial request dated 5-20-16, I need access to the tools
necessary to do meaningful research for legal cases pending and to be submitted.
My initial need request was sent to the Operations Manager, who then repeated my
need and forwarded this to Mr. Oates. As you can clearly see, Mr. Oates is not able
to comprehend because he sent me his routing and transmittal slip on 5-24-16
asking what do I need? 5-27-16 I sent the same request back to him, he diverts the
problem back to Mrs. Harris and this circle goes on and on. Mrs. Harris did send a
Library Aid to see me in Mr. Huddleston’s office and he did bring a Georgetown
Law Journal and said that he was told by Mrs. Harris to show it to me to pick a case
and bring it back and that’s it. This Library Aid went to school to study Paralegal
things. After listening to my need, he said that even in his opinion, that I needed
physical access and also professional help or I would not be able to adequately
research, sir.
Id. at 38. The response to this complaint was the promise of another appointment with the
institutional attorney.
Dissatisfied, Manning then filed a regular grievance on September 14, 2016, stating that
he had “filed request to law library concerning access to material that may provide adequate
knowledge of how to research, present, and litigate cases and[/]or criminal/civil case to the court;
several times to several dept.’s. All return me to Inst. Attorney which has proven to be ineffective

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at the least.” Id. at 39. Warden Edmonds stated in his Level I response that because Manning was
assigned Reception Unit and as such, he was “not permitted to physically go to the Law Library
due to security reasons.” Id. at 41. The warden then described how Manning could request legal
materials from the law library and talk to an institutional attorney, as indeed, Manning had already
done. Finding no violation of policy, Edmonds ruled Manning’s grievance to be unfounded. In
the Level II appeal response, Charlene Davis (acting by designation of regional administrator
Wendy Hobbs) upheld Edmonds’ finding. Id. at 45.
On Friday, September 30, 2016, Manning received a motion to dismiss filed by defense
counsel in his Buckingham County injunction case. Compl. 4, ECF No. 1. Manning wrote a
“Rebuttal w/Motion to Proceed” in response to the defense motion and mailed it on Tuesday,
October 11, 2016. Id. at 5. The same day, he received legal mail from the court informing him
that the case had been dismissed on October 4, 2016. Id. On October 12, 2016, Manning filed a
notice of appeal of the dismissal order. Id. at 9.
Manning filed his initial § 1983 complaint in December 2016, while he was still confined
in the Reception Unit without physical access to the law library. On March 23, 2017, he was
moved into a general population housing unit and from that time onward, he has been allowed
physical access to the law library. Holman Aff. ¶ 12, ECF No. 52-1. In the law library, inmates
can use a legal database to conduct searches for statutes and cases for their legal research needs.
Manning does not indicate that he ever attempted to file a state court habeas corpus petition, and
records available on the internet do not reflect that he filed any such petition in the Chesapeake
Circuit Court or the Supreme Court of Virginia. He also does not describe attempting an ADA
lawsuit in state or federal court, and court records do not indicate that he did so.

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In his § 1983 claims as amended, Manning names as defendants Mr. Oates, Warden
Edmonds, Charlene Davis, and Wendy Hobbs. The court has liberally construed Manning’s
submissions to state a possible claim that these defendants, knowing of Manning’s desire to litigate
and his past difficulties in doing so, failed to provide him physical access to the law library or more
meaningful tools to assist him in litigating state habeas corpus claims and ADA claims, thus
violating his right to access the courts.7 As relief, Manning demands monetary damages and
injunctive and declaratory relief to correct the problems in accessing legal materials at Dillwyn.
The defendants have filed a motion for summary judgment, and Manning has responded, making
the matter ripe for disposition.
II. Discussion.
A. The Standard of Review.
A court should grant summary judgment “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). In short, a motion for summary judgment should be granted
when the proof, taken in the form admissible at trial, would lead a reasonable juror to but one
conclusion. Id. at 247-52. The court must view the record as a whole and draw all reasonable
inferences from the facts in the light most favorable to Manning, as the nonmoving party. Shaw
v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994).8 To survive summary judgment, Manning must

7 See Amaker v. Hakes, 919 F. Supp. 127, 131 (W.D.N.Y. 1996) (holding that where prison official learned
of alleged ongoing constitutional violations through the facility’s grievance appeals process and “failed to remedy the
wrong,” supervisory liability may apply).
8

The court has omitted internal quotation marks, alterations, and citations here and throughout this opinion,
unless otherwise noted.

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present sufficient evidence that could carry the burden of proof on each element of his claims at
trial. Id. “[U]nsupported speculation is not sufficient to defeat a summary judgment motion.”
Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992).
B. A Prisoner’s Right to Access the Court.
“[T]he fundamental constitutional right of access to the courts requires prison authorities
to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners
with adequate law libraries or adequate assistance from persons trained in the law.” Bounds v.
Smith, 430 U.S. 817, 828 (1977). Such legal assistance programs are constitutionally sufficient if
they provide inmates the “capability of bringing contemplated challenges to sentences or
conditions of confinement before the courts.” Lewis v. Casey, 518 U.S. 343, 356 (1996) (emphasis
added). More specifically, such legal assistance programs should be “adequate to permit an inmate
to explore possible theories of relief, determine the facts that must be present to make out claims
under any available theories, and to frame pleadings before the federal or state courts should he
wish to do so.” Strickler v. Waters, 989 F.2d 1375, 1386 (4th Cir. 1993) (rejecting denial of access
claim from inmate without regular physical access to law library who could receive legal materials
from court library upon request to review in his cell).
On the other hand, this right of access does not require prisons to provide an inmate litigant
with physical access to a law library or to provide him with copies of whatever type of legal
material that he believes to be necessary to his litigation efforts. Lewis, 518 U.S. at 354, 356;
Strickler, 989 F.2d at 1386 (rejecting denial of access claim from inmate without regular physical
access to law library who could receive legal materials from court library upon request to review
in his cell). As such, an inmate’s complaints about restrictions on law library use or merely
theoretical assertions that a prison’s legal assistance program is inefficient or inadequately stocked

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with resources cannot, without more, support a constitutional claim for damages based on denial
of access. Lewis, 518 U.S. at 351. Where an inmate has been able to file court actions, to state a
denial of access claim, he must show that specific deficiencies in the legal assistance program
available to him caused particularized harm to his litigation of a nonfrivolous claim or claims. Id.
at 351-53.
The inmate may satisfy this injury element by showing that a pleading “he prepared was
dismissed for failure to satisfy some technical requirement [that particular] deficiencies in the
prison’s legal assistance facilities” prevented him from learning or “that he had suffered arguably
actionable harm that he wished to bring before the courts, but was so stymied by inadequacies of
the law library that he was unable even to file a complaint.” Id. at 351. Conclusory allegations
about mere delays or inconveniences to an inmate’s legal work cannot support a denial of access
claim. Strickler, 989 F.2d at 1383.
Most importantly, to obtain monetary damages for denial of access in the past, the plaintiff
must identify the “non-frivolous” and “arguable” legal claim, and the potential remedy that claim
sought to recover, which was lost as a result of the defendant’s alleged interference with the
plaintiff’s right to access. Christopher v. Harbury, 536 U.S. 403, 415-16 (2002) (quoting Lewis,
518 U.S. at 353). Absent identification of the lost claim and its arguable merit and potential benefit
to the litigant, the plaintiff has not shown that he “suffered injury by being shut out of court” for
which he should be compensated. Id. at 415.
Manning’s submissions do not demonstrate that the defendants’ actions or omissions
deprived him of all access to legal materials between December of 2015 and March of 2017, while
in the Reception Unit. Although he was barred by prison security policy from physically attending
the law library to do research, Dillwyn officials made extensive efforts during this period to

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provide him with legal materials and assistance. They responded quickly to his requests for forms
and copies of cases when they understood what materials he was requesting. They arranged several
meetings for him with an institutional attorney and discussions with law library personnel about
his research needs. In March 2016, Manning was able to file a state court civil action and, in
December 2016, he was able to file this § 1983 case. The court previously dismissed his court
access claims concerning those litigation efforts, holding that he had failed to show how any
defendant’s action or omission caused his state court lawsuit to be dismissed or hampered his
ability to file this § 1983 action. Manning v. Edmonds, No. 7:17CV00103, 2018 WL 715472, at
*6 (W.D. Va. Feb. 5, 2018).
Manning’s submissions now clearly reflect that he is not complaining in this lawsuit that
Dillwyn’s law library and staff are hindering his ability to pursue litigation in the future. Mem.
Opp’n 7, ECF No. 54. Therefore, his claims for injunctive and declaratory relief must be dismissed
as moot. Preiser v. Newkirk, 422 U.S. 395, 401 (1975).
Manning’s claims for monetary damages concerning his potential state habeas claims and
ADA claims are not moot. Because he did have some access to legal materials and assistance
while in the Reception Unit, however, he cannot survive summary judgment without evidence of
(1) actual injury to his ability to file such claims and (2) what he lost by being “shut out of court.”
Christopher, 536 U.S. at 415. In other words, he must demonstrate that from December 21, 2015,
through March 23, 2017, specific deficiencies in the prison’s legal assistance program prevented
him from pursuing a timely and viable state habeas petition and an ADA action raising claims
from which he would likely have benefitted. Id. at 415-16; Lewis, 518 U.S. at 353. The court
cannot find that Manning has made these showings.

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During this time period, Manning was able to gather information about the criminal
proceedings on his sexual battery charge to prepare a habeas petition. The sentence on that
conviction was imposed on December 19, 2014. Virginia Code Ann. § 8.01-654(A)(2) states: “A
habeas corpus petition attacking a criminal conviction or sentence . . . shall be filed within two
years from the date of final judgment in the trial court or within one year from either final
disposition of the direct appeal in state court or the time for filing such appeal has expired,
whichever is later.” A criminal defendant in Virginia has thirty days “from the date of any final
judgment order, decree or conviction” to file an appeal. Va. Code Ann. § 8.01-675.3. Since
Manning had thirty days to appeal and failed to do so, he had from January 19, 2015, until January
18, 2017, to file a timely state habeas petition.
For nearly the first year of Manning’s two-year habeas filing period, he was confined at
jail facilities other than Dillwyn. He provides no information about any efforts he made at those
facilities to obtain a state habeas form or learn about habeas claims and how to file such a petition.
He cannot hold the defendants in this case liable for his own research delays or interference with
his court access right that occurred at other facilities before he came into their custody.
After Manning arrived at Dillwyn on December 21, 2015, he found research challenging
without physical access to the law library. By June of 2016 at the latest, however, Manning had
learned that his deadline to file a habeas case was approaching, although he had erroneously
calculated it as December 19, 2016. In June of 2016, Manning also met with Institutional Attorney
Fariss, who helped him obtain criminal records from his sexual battery case. He had her address
and could have written to her with any questions about how to obtain a state habeas form and how
to prepare and file the petition. Thus, he fails to show that the law library staff’s failure to provide
him with the correct form in March 2016 caused anything more than a minor inconvenience and

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delay to his ability to file a timely petition. Strickler, 989 F.2d at 1383. Indeed, he presents no
information that he needed the form to file a petition. Manning also does not identify any other
legal materials he needed, but could not obtain, in time to prepare and file a state habeas petition
before the statutory filing period under § 8.01-654(A)(2) expired.
Most importantly, Manning’s pleadings do not identify a particular, nonfrivolous habeas
corpus claim based on his criminal proceedings or his trial attorney’s representation that he was
unable to bring because of Dillwyn’s legal assistance program. Nor does he show any likelihood
that any of his intended habeas claims would have resulted in a new trial or sentence for him.
Indeed, Manning does not provide any details of the claims he planned to present or the facts on
which they were based. As such, Manning has not demonstrated the harm he suffered by allegedly
being shut out of court or that harm’s value for which he could be compensated. See Christopher,
536 U.S. at 415 (holding that for a claim of denial of access to the court, “the underlying cause of
action, whether anticipated or lost” is an element that must be described in the complaint”).
Manning’s claim concerning his alleged lack of access to ADA materials is similarly
lacking. He had the opportunity to ask Fariss or one of the other institutional attorneys for help in
obtaining a copy of this statute. He could also have made additional requests to a law library staff
member for a copy of it. Thus, he fails to present a material disputed fact showing that the incident
when he received only the coversheet of the ADA caused him anything more than a minor delay
in researching and possibly filing ADA claims. Strickler, 989 F.2d at 1383. The ADA allows an
individual to bring a civil action against the state for denying him access to a service, program, or
activity because of a physical disability. Constantine v. Rectors & Visitors of George Mason
Univ., 411 F.3d 474, 498 (4th Cir. 2005). Manning does not identify any such circumstance he
faced at Dillwyn in 2016 about which he wished or attempted to bring a court claim under the

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ADA. Thus, he has not demonstrated a particularized harm he suffered (from not litigating that
subject matter) or its value for which he could be compensated. See Christopher, 536 U.S. at 415.
For the stated reasons, Manning has failed to present material disputed facts on which he
could persuade a fact finder that the defendants’ actions or omissions violated his constitutional
right to access the court. Therefore, the defendants are entitled to summary judgment as a matter
of law, and the court will grant their motion accordingly. An appropriate order will enter this day.
The clerk will send a copy of this memorandum opinion and the accompanying order to
Manning and to counsel of record for the defendants.
ENTER: This 30th day of March, 2019.
s/ Glen E. Conrad
Senior United States District Judge

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