Perkins v. Newcomer et al

Filing 52

MEMORANDUM OPINION. Signed by Senior Judge Michael F. Urbanski on 9/25/2024. (Opinion mailed to Pro Se Party/Parties via US Mail)(tvt)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
PAULUS IRVIN PERKINS,
Plaintiff,

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v.
D. NEWCOMER, et al.,
Defendants.

September 25, 2024

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Case No. 7:23-cv-00074
By: Michael F. Urbanski
Senior United States District Judge

MEMORANDUM OPINION
Paulus Irvin Perkins, a Virginia inmate proceeding pro se, filed this civil action under 42
U.S.C. § 1983 against nine individuals employed by the Virginia Department of Corrections
(“VDOC”). Perkins claims that the defendants violated his federal and state constitutional rights
by impeding his efforts to obtain a media device offered through JPay LLC (“JPay”), a thirdparty contractor that provides products and services to the VDOC’s inmate population. The
case is presently before the court on the defendants’ motion for summary judgment under
Federal Rule of Civil Procedure 56(a), ECF No. 32; Perkins’s motions for relief under Rule
56(d), ECF Nos. 41 and 46; and the defendants’ motion for extension of time to respond to the
plaintiff’s discovery requests, ECF No. 51. For the reasons set forth below, the defendants’
motion for summary judgment is GRANTED IN PART AND DENIED WITHOUT
PREJUDICE IN PART; Perkins’s motions are GRANTED IN PART AND DENIED
IN PART; and the defendants’ motion for extension of time is GRANTED.
I.
A.

Background

Factual Allegations in the Complaint

Perkins is an African American inmate who has been in the custody of the VDOC since
at least 2014. Compl., ECF No. 1, at 11, 37. At all times relevant to this action, Perkins was
incarcerated at Augusta Correctional Center (“Augusta”). Id. at 7.
In 2014, while incarcerated at another VDOC facility, Perkins purchased his first media
device from JPay. Id. at 11. Perkins subsequently spent more than $3,000 buying music from
JPay’s media store to play on his device. Id. He also used the device for his college courses. Id.
As of August 2020, Perkins no longer had access to a functioning JPay device. Id. at 12.
Over the next two years, he used the computer kiosks in his assigned housing units to place
“trouble tickets” to JPay requesting to purchase and receive a replacement device. Id. Although
other inmates received new devices from JPay during that period, Perkins’s efforts were
unsuccessful. Id. at 12–13.
In April 2022, administrative officials at Augusta posted a facility-wide memorandum
informing inmates that JPay would be distributing new “JP6” tablets. Id. at 13. In May 2022,
Perkins “signed a contract to receive a free JP6 loaner tablet” from JPay. Id. On May 17, 2022,
JPay representatives distributed free JP6 tablets to other inmates housed in Perkins’s cell block,
including his white cellmate. Id. Despite being told by a JPay representative that there were
enough free tablets to distribute to any inmate who wanted one, Perkins did not receive a tablet.
Id. at 13. The representative indicated that defendant D. Newcomer, the Warden of Augusta,
had “presented him with a Red List and Green List which determined . . . who would and who
would not receive a free JP6 loaner tablet” on that date. Id. at 14.
Perkins subsequently filed an informal complaint against Newcomer “for preventing him
from being distributed a free JP6 loaner tablet, after he had signed a contract to receive one.”
2

Id. at 14. Perkins then filed a formal grievance against Newcomer for refusing to allow JPay to
provide him with a free tablet. Id. at 15. The initial grievance was rejected at intake by defendant
J. Chittum, the Grievance Coordinator at Augusta, and Perkins then filed an informal complaint
against Chittum for attempting to obstruct his ability to exhaust the grievance process. Id.
Defendant L. Canterbury, the Institutional Ombudsman at Augusta, responded to that
complaint. Id. at 16.
On June 7, 2022, Perkins submitted a trouble ticket to JPay using the JPay kiosk in his
housing unit. Id. Perkins notified the company “that he did not receive a free JP6 loaner tablet
on May 17, 2022, like other prisoners assigned to cell block D-2 at Augusta Correctional
Center.” Id.
On June 15, 2022, Perkins filed an informal complaint against Newcomer for refusing
to allow him to receive the “free JP6 loaner tablet that was distributed to Augusta Correctional
Center’s white prisoners.” Id. at 17. Perkins expressed the belief that he was “being
discriminated against as a Black person.” Id. He then filed a formal grievance raising the same
issue. Id. In the meantime, in response to one of the prior informal complaints, Chittum
informed Perkins that he “must send a request to Operations to receive a JP6 loaner tablet.” Id.
Consequently, on June 19, 2022, Perkins contacted defendant Lynn Graham, the Operations
Manager at Augusta, and inquired as to how he could receive a free JP6 loaner tablet. Id. at 18.
Perkins noted that “33 days had passed since JPay representatives distributed free JP6 loaner
tablets to Augusta prisoners” and that “he still had not received a free JP6 loaner tablet.” Id.
Over the next few days, Perkins continued to utilize the grievance process to alert
correctional officials to the fact that he had not received a free loaner tablet despite tablets being
3

distributed to white prisoners at Augusta. Id. at 19–22. Chittum rejected one of his grievances
at intake on the basis that it raised an issue that was beyond the control of the VDOC. Id. at
19. Perkins appealed the intake decision to the Regional Administrator, and defendant Robert
Bivens 1 affirmed the decision. Id. at 22.
On June 26, 2022, JPay sent Perkins an email informing him that “the company had sent
a second free JPay 6 loaner tablet to him.” Id. at 22. The email indicated that the “delivery of
the second free JPay 6 loaner tablet to Augusta Correctional Center would take 30–45 days.”
Id. The email also included “the delivery number for the first free JP6 loaner tablet sent to
[Perkins] on May 10, 2022,” which he had not received when tablets were being distributed to
other inmates. Id. at 23.
On June 30, 2022, Perkins filed an informal complaint against Graham and other
unknown prison personnel allegedly responsible for barring him from receiving a free loaner
tablet on May 17, 2022. In response, Graham informed Perkins that “all inmates” would receive
a JP6 tablet. Id. at 23. Perkins then filed a formal grievance asserting the same complaint. Id. at
23–24. Grievance Coordinator Chittum refused to log the grievance on the basis that the
VDOC “has no control over JPay.” Id. at 24. Perkins appealed Chittum’s decision to defendant
Carl Manis, a VDOC Regional Administrator, and defendant C.L. Parr upheld Chittum’s
decision. Id. at 24.
On August 20, 2022, Perkins attempted to contact JPay via email to inquire about the
second free tablet that had reportedly been sent to him at the end of June. Id. at 25. At that
time, Perkins discovered that his email access to JPay’s electronic help center had been blocked.
Bivens is identified in the complaint as Robert Bate. By previous order, the docket was updated to reflect the
defendant’s correct last name. ECF No. 25.

1

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Id. He received the following message each time he attempted to contact JPay: “You cannot
create a new communication. Inmate has reached maximum number of communications.” Id.
Perkins alleges, on information and belief, that JPay grants VDOC employees “broad
authority to monitor, intercept, and block both outgoing and incoming emails including the
ability of prisoners trying to access the company’s products and support services.” Id. On
August 23, 2022, Perkins sent a “cease and desist notice” to defendant Benjamin Lokey, Head
Investigator at Augusta, requesting that Lokey remove the email block. Id. At the time this
action was filed, the email block had not been removed. Id.
Perkins filed additional informal complaints in September 2022, followed by formal
grievances. Id. at 25–26. In response to one of the informal complaints, Graham advised Perkins
to contact JPay directly to receive a free JP6 loaner tablet. Id. Likewise, defendant R. Northrup
advised Perkins to submit a trouble ticket to JPay regarding the issue with email access. Id. at
29. Similarly, in response to various grievance appeals, defendants informed Perkins that the
VDOC had no control over JPay and that he must contact JPay regarding the issues raised in
his grievances. Id. at 30.
Correctional officers at Augusta subsequently distributed JP6 tablets to other inmates at
the facility. Despite being informed by JPay that a second JP6 tablet had been shipped to him,
Perkins had still not received a JP6 tablet as of January 18, 2023, the date on which he signed
the complaint filed in this action. Id. at 32.
B.

Perkins’s Claims

In a section of the complaint titled “Claims for Relief,” Perkins lists eleven claims. Those
claims are summarized as follows:
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Claim One: Defendants Newcomer, Graham, Chittum, and
Manis violated Perkins’s right to procedural due process under the
Fourteenth Amendment by refusing to allow JPay representatives
to issue him a free JP6 tablet.
Claim Two: Defendants Newcomer, Graham, Chittum, Bivens,
Canterbury, Parr, and Manis violated Perkins’s right to contract
under the Fourteenth Amendment by preventing him from
exercising his contractual right to purchase, enjoy, and use JPay
products and services.
Claim Three: Defendants Newcomer, Graham, Chittum, Bivens,
Canterbury, Parr, and Manis engaged in race discrimination in the
context of making and enforcing contracts, in violation of 42
U.S.C. § 1981.
Claim Four: Defendants Newcomer, Graham, and Manis
discriminated against Perkins based on his race, in violation of the
Equal Protection Clause of the Fourteenth Amendment.
Claim Five: Defendants Newcomer, Graham, and Manis
discriminated against Perkins as a “class of one,” in violation of
the Equal Protection Clause of the Fourteenth Amendment.
Claim Six: Defendants Newcomer, Chittum, Graham,
Canterbury, Parr, Bivens, and Manis conspired to deprive Perkins
of his right to equal protection, in violation of 42 U.S.C.
§
1985(3).
Claim Seven: Defendants Manis, Parr, Bivens, Newcomer,
Graham, Canterbury, and Chittum neglected to prevent a
conspiracy to deprive Perkins of his right to equal protection, in
violation of 42 U.S.C. § 1986.
Claim Eight: Defendants Newcomer, Lokey, Chittum, Parr, and
Northrup violated Perkins’s right to free speech under the First
Amendment by blocking his email access to JPay and/or failing to
respond to his complaints regarding the issue.
Claim Nine: Defendants Newcomer, Graham, Chittum, Parr,
Bivens, Canterbury, Manis, Lokey, and Northrup violated the
Commerce Clause of the United States Constitution.

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Claim Ten: Defendants Newcomer, Graham, Lokey, Northrup,
and Manis violated Perkins’s right to contract under the
Constitution of Virginia.
Claim Eleven: Defendants Newcomer, Chittum, Canterbury,
Bivens, Parr, Manis, and Graham violated Perkins’s right to equal
protection under the Constitution of Virginia.
Id. at 33–73.
C.

Defendants’ Motion for Summary Judgment

The defendants have moved for summary judgment on all of Perkins’s claims. The
defendants argue that some of the claims are subject to dismissal for failure to state a claim
upon which relief may granted. As to other claims, the defendants rely on affidavits to support
their motion for summary judgment. See Defs.’ Br. Supp. Mot. Summ. J., ECF No. 33.
D.

Perkins’s Motions for Relief under Rule 56(d)

Perkins filed a response in opposition to the motion for summary judgment in which he
argues that the motion should be denied as premature under Rule 56(d).2 ECF No. 42. He
contends that discovery remains ongoing and that he has yet to obtain documents relevant to
certain claims. See id. at 5 (“Defendants possess official documents and records which directly
contradict Defendants[’] assertions that Paulus Irvin Perkins’ email access to JPay LLC was not
blocked between August 2022 and March 17, 2023.”); id. at 8 (“Document evidence in
possession of Defendants named in my first discovery request for production of documents

The response is accompanied by a 101-page memorandum in opposition. ECF No. 42-2. The memorandum
appears to include entirely new legal theories or claims that were not included in the complaint. “It is wellestablished that parties cannot amend their complaints through briefing or oral advocacy.” S. Walk at Broadlands
Homeowner’s Ass’n v. Openband at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir. 2013); see also Henderson v.
City of Roanoke, No. 20-2386, 2020 WL 704351, at *3 (4th Cir. Mar. 9, 2022) (emphasizing that “no litigant is
exempt from [this] well-established rule” and declining to consider the new legal theory raised by the appellant).
Accordingly, the court will not consider any of the new claims in ruling on the defendants’ current motion for
summary judgment.
2

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will confirm that my federal and Virginia civil rights were violated by Defendants on racial and
other forms of discrimination.”). Perkins also filed a motion to stay, ECF No. 41, and a motion
for extension of time, ECF No. 46, both of which seek relief under Rule 56(d).
Perkins has since filed additional discovery requests, including requests for admission,
requests for production of documents, and interrogatories. ECF No. 50. Defendants have filed
a motion for an extension of time to respond to the discovery requests. ECF No. 51.
II.

Standards of Review

Under Rule 56 of the Federal Rules of Civil Procedure, “[t]he court shall 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). Rule 56 further provides
that if the nonmovant demonstrates that he cannot present facts essential to justify his
opposition, the court may defer considering the motion, deny it, or allow time for the
nonmovant to take discovery or obtain affidavits or declarations. Fed. R. Civ. P. 56(d). “Rule
56(d) relief should be liberally granted, particularly when a pro se plaintiff seeks evidence that
is ‘exclusively in the control of the opposing party.’” Firewalker-Fields v. Clarke, 58 F.4th 104,
123 (4th Cir. 2023) (quoting Pledger v. Lynch, 5 F.4th 511, 526 (4th Cir. 2021)).
In their motion for summary judgment, the defendants contend that certain allegations
fail to state a claim upon which relief can be granted. Although the defense of failure to state a
claim is typically raised in a Rule 12(b)(6) motion, it may also be asserted in a motion for
summary judgment or at trial. See Martin v. Southwestern Va. Gas Co., 135 F.3d 307, 309 n.1
(4th Cir. 1998); Fed. R. Civ. P. 12(h)(2)(C). Additionally, when a complaint is filed by a prisoner
who seeks redress from government employees, the court may sua sponte dismiss any portion
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of the complaint that “fails to state a claim upon which relief may be granted.” 28 U.S.C.
§ 1915A(b)(1). A plaintiff is not entitled to discovery before a claim can be dismissed on that
ground. See Ashcroft v. Iqbal, 556 U.S. 662, 686 (2009) (“Because respondent’s complaint is
deficient under Rule 8, he is not entitled to discovery, cabined or otherwise.”); Desper v. Clarke,
1 F.4th 236, 249 (4th Cir. 2021) (“Insofar as [the plaintiff] is unaware of adequate facts to
support a plausible claim for relief, his inability to marshal facts absent discovery cannot save
his conclusory and speculative allegations from dismissal.”).
To withstand dismissal for failure to state a claim, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal,
556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible when the plaintiff’s allegations “allow[] the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. While “detailed factual
allegations” are not required, “a formulaic recitation of the elements of a cause of action will
not do.” Twombly, 550 U.S. at 555.
When evaluating whether a complaint states a claim upon which relief can be granted,
“the court must construe all factual allegations in the light most favorable to the plaintiff.”
Wilcox v. Brown, 877 F.3d 161, 166–67 (4th Cir. 2017). “Additionally, when a plaintiff raises a
civil rights issue and files a complaint pro se, the court must construe pleading requirements
liberally.” Id. 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 complaint filed by a pro se plaintiff “still must contain enough facts to state a claim for relief

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that is plausible on its face.” Thomas v. Salvation Army S. Terr., 841 F.3d 632, 637 (4th Cir.
2016) (internal quotation marks omitted).
III.
A.

Discussion

Claims Subject to Dismissal for Failure to State a Claim
As indicated above, the defendants’ motion for summary judgment seeks dismissal of

certain claims for failure to state a claim upon which relief may be granted. For the reasons set
forth below, the court concludes that Claims One, Two, Six, Seven, Nine, and Ten must be
dismissed on that ground.
1.

Claim One

In Claim One, Perkins asserts that Newcomer and other defendants violated his right to
procedural due process under the Fourteenth Amendment by refusing to allow JPay
representatives to issue him a free JP6 tablet. Perkins alleges that he was “deprived of liberty
and property interests because he had a legal entitlement to possess a JP6 tablet” and that the
deprivation occurred “without a hearing or process.” Compl. 33.
The Fourteenth Amendment to the United States Constitution provides that no state
shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const.
amend. XIV, § 1. “Due process contains both procedural and substantive components.” Snider
Int’l Corp. v. Town of Forest Heights, 739 F.3d 140, 145 (4th Cir. 2014). “To state a procedural
due process violation, a plaintiff must (1) identify a protected liberty or property interest and
(2) demonstrate deprivation of that interest without due process of law.” Prieto v. Clarke, 780
F.3d 245, 248 (4th Cir. 2015).

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Perkins does not plausibly allege that he had a cognizable liberty interest in possessing a
JP6 tablet. A liberty interest “may arise from the Constitution itself, by reason of guarantees
implicit in the word, ‘liberty,’ or it may arise from an expectation or interest created by state
laws or policies.” Wilkinson v. Auston, 545 U.S. 209, 221 (2005). With respect to the latter, an
inmate must show: “(1) that there is a state statute, regulation, or policy that creates such a
liberty interest, and (2) that the denial of such an interest imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.” Martin v. Duffy, 858
F.3d 239, 253 (4th Cir. 2017) (internal quotation marks and alterations omitted). Courts have
uniformly held that the denial of access to an electronic tablet does not rise to the level of an
atypical and significant hardship, and that “inmates do not have a protected liberty interest in
tablet use.” Burrell v. Doccs, 655 F. Supp. 3d 112, 128–29 (N.D.N.Y. 2023) (collecting cases);
see also Lewis v. Zmuda, No. 5:23-cv-03236, 2024 WL 359332, at *3 (D. Kan. Jan. 31, 2024)
(“Because the use of a tablet is not a protected liberty interest, Plaintiff's claim that he was
entitled to due process before his tablet privileges were suspended is subject to dismissal.”).
To the extent that Perkins alleges that he was deprived of a protected property interest
without due process, his claim fares no better. Even assuming that Perkins had a property
interest in the undelivered JP6 tablet or the music he purchased to play on the tablet, “the
deprivation by state action of a constitutionally protected interest in life, liberty, or property is
not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest
without due process of law.” Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62, 80 (4th
Cir. 2016) (emphasis in original) (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990)). “Under
Hudson v. Palmer, 468 U.S. 517 (1984), negligent or intentional deprivations of property by a
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state employee do not state a claim of constitutional magnitude when there is an adequate postdeprivation remedy.” Doe v. Montgomery Cnty., 47 F. App’x 260, 261 (4th Cir. 2002); see also
Hudson, 468 U.S. at 533 (holding that “an unauthorized intentional deprivation of property by
a state employee does not constitute a violation of the procedural requirements of the Due
Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the
loss is available”).
Here, Perkins alleges that Newcomer and other defendants intentionally and arbitrarily
refused to allow him to receive one of the free JP6 tablets distributed to other inmates. See, e.g.,
Compl. 20 (alleging that Newcomer “refused to allow JPay LLC to distribute a free JP6 loaner
tablet

. . . in the same way the tablets had been distributed to white prisoners at Augusta

Correctional Center”); id. at 22 (alleging that Newcomer “discriminated against him” by refusing
to allow JPay representatives to give him a JP6 loaner tablet); id. at 23 (alleging that Graham
and other VDOC personnel “barr[ed him] from receiving a free JP6 loaner tablet

. . . like

other prisoners”). The unauthorized, intentional conduct described in the complaint falls
squarely within the ambit of Hudson. Consequently, Perkins has no viable claim for denial of
procedural due process “if a meaningful postdeprivation remedy for the loss is available.”
Hudson, 468 U.S. at 533.
Under the Virginia Tort Claims Act (“VTCA”), the Commonwealth of Virginia is liable
for claims for damages resulting from “loss of property or personal injury . . . caused by the
negligent or wrongful act or omission of any [state] employee while acting within the scope of
his employment.” Va. Code § 8.01-195.3. The United States Court of Appeals for the Fourth
Circuit has held that the VTCA and Virginia tort law provide adequate post-deprivation
12

remedies for torts committed by state employees. See Wadhams v. Procunier, 772 F.2d 75, 78
(4th Cir. 1985). Because adequate remedies are available under state law for the intentional,
unauthorized deprivation of property, Perkins has no viable claim for denial of procedural due
process.
For these reasons, Claim One fails to state a claim upon which relief can be granted.
Accordingly, the defendants’ motion will be granted with respect to this claim.
B.

Claim Two

In Claim Two, Perkins asserts that various defendants violated his right to contract under
the Fourteenth Amendment. He alleges that he “signed a contract to receive a JP6 tablet” and
that he was “deprived of his contract rights to purchase, enjoy, and use JPay LLC products,
services, and benefits associated with his contractual relationship with the company.” Compl.
35. He claims that the defendants’ actions violated his “federal right[] to contract.” Id. The court
agrees with the defendants that this claim is subject to dismissal for failure to state a claim upon
which relief can be granted.
First, “[t]here is no positive federal ‘right to contract’ at all times on all subjects” under
the Fourteenth Amendment. Love v. Pepersack, 47 F.3d 120, 123 n.4 (4th Cir. 1995). The
Amendment “does not speak of freedom of contract. It speaks of liberty and prohibits the
deprivation of liberty without due process of law.” West Coast Hotel Co. v. Parrish, 300 U.S.
379, 391 (1937). Thus, while the “liberty” guaranteed by the Fourteenth Amendment may
include “the right of the individual to contract [and] to engage in any of the common
occupations of life,” Bd. of Regents v. Roth, 408 U.S. 564, 572 (1972), there is no separate claim
for violation of the right to contract under the Fourteenth Amendment. Love, 47 F.3d at 120
13

n.4 (noting that the plaintiff’s claim for denial of the right to contract was “just a component of
[her] substantive due process claim”).
As explained above, “due process has both substantive and procedural components.”
D.B. v. Cardall, 826 F.3d 721, 739 (4th Cir. 2016). Substantive due process protects individuals
from “arbitrary” government action that constitutes “egregious official conduct.” Cnty. of
Sacramento v. Lewis, 523 U.S. 833, 845–46 (1998). A plaintiff typically “must show that the
violation involved abusing executive power or employing it as an instrument of oppression.”
Desper v. Clarke, 1 F.4th 236, 247 (4th Cir. 2021) (internal quotation marks omitted). “The
conduct must go beyond simple negligence and must be intended to injure in some way
unjustifiable by any government interest.” Id. (internal quotation marks omitted).
Although Perkins relies on the Fourteenth Amendment in asserting Claim Two, he does
not specify whether the claim rests on substantive or procedural due process. To the extent that
Perkins’s allegations of discriminatory treatment can be construed as a substantive due process
claim, the court concludes that the claim is duplicative of the equal protection claims asserted
in Claims Four and Five. The Supreme Court has made clear that “[w]here a particular
Amendment provides an explicit textual source of constitutional protection against a particular
sort of government behavior, that Amendment, not the more generalized notion of substantive
due process, must be the guide for analyzing these claims.” Albright v. Oliver, 510 U.S. 266,
273 (1994) (internal quotation marks omitted). Here, the Equal Protection Clause of the
Fourteenth Amendment provides an explicit source of protection against the discriminatory
behavior described in the complaint—namely that Newcomer and his colleagues prevented
Perkins from receiving and using a JP6 tablet based on racial animus and their personal animus
14

towards Perkins. As a result, any substantive due process claim based on alleged discrimination
is “subsumed by” or “duplicative of” the equal protection claims. Hu v. City of New York, 927
F.3d 81, 104 (2d Cir. 2019) (collecting cases).
To the extent that Perkins alleges that defendants interfered with his alleged contract
rights without providing procedural due process, the claim is also subject to dismissal. Courts
have recognized that “[t]he adequacy of litigation as a means to determine the meaning of a
contract is a premise of our legal system” and, thus, that an opportunity to litigate in state court
is “all the process ‘due’ for ordinary claims of breach of contract.” Mid-American Waste Sys. v.
City of Gary, 49 F.3d 286, 291 (7th Cir. 1995); see also Jamerson v. Milwaukee Cnty., No. 2:04cv-00749749, 2006 WL 1589655, at *6 (E.D. Wis. June 7, 2006) (“To the extent Jamerson is
alleging that his liberty interest in his right to contract was violated by the defendants without
proper notice and a hearing, his claim must still fail. This is because, even assuming Jamerson
does have such a ‘liberty interest,’ all the process that is due when a commercial contract dispute
is at stake is the opportunity to litigate the breach of contract claim in state court.”). Likewise,
courts have held that “a state tort claim for tortious interference with a contract” is an adequate
post-deprivation remedy when a government official allegedly interferes with a plaintiff’s
contract and, thus, that “a section 1983 procedural due process claim is not available.” Bennett
v. Monette, 507 F. Supp. 2d 514, 518 (E.D.N.C. 2007); see also Etherton v. City of Rainsville,
662 F. App’x 656, 663 (11th Cir. 2016) (concluding that the existence of procedures through
which plaintiffs could have sought a remedy for alleged interference with a contract right
precluded them from stating a viable claim for denial of procedural due process); SMJ Towing,
Inc. v. Vill. of Midlothian, No. 1:05-cv-03020, 2005 WL 3455856, at *3 (N.D. Ill. Dec. 16, 2005)
15

(dismissing a procedural due process claim based on alleged interference with contract rights
since adequate state remedies were available through an action for tortious interference with
contract). Because Perkins does not plausibly allege that the interference with his right to
contract “occurred in the absence of adequate procedural protections,” he fails to state a claim
for denial of procedural due process. Anderson v. Dickson, 715 F. App’x 481, 486 (6th Cir.
2017).
C.

Claims Six and Seven

In Claims Six and Seven, Perkins seeks relief for alleged violations of 42 U.S.C.
§§ 1985(3) and 1986. Section 1985(3) prohibits two or more persons from “conspir[ing]” to
deprive another person “of the equal protection of the laws.” 42 U.S.C. § 1985(3). “Section
1986, in turn, provides a cause of action against anyone who has knowledge of a § 1985
conspiracy and who, ‘having the power to prevent or aid in preventing the commission of’ acts
pursuant to that conspiracy, ‘neglects or refuses to do so.’” Strickland v. United States, 32 F.4th
311, 361 (4th Cir. 2022) (quoting 42 U.S.C. § 1986).
Having reviewed the complaint, the court concludes that Perkins has failed to state a
claim for relief under § 1985(3). “To recover under § 1985(3), a plaintiff must establish the
existence of a conspiracy and show ‘some racial or perhaps otherwise class-based, invidiously
discriminatory animus behind the conspirators’ actions.” C & H Co. v. Richardson, 78 F. App’x
894, 901 (4th Cir. 2003) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102–03 (1971)); see also
Strickland, 32 F.4th at 361 (explaining that a plaintiff must plausibly allege, among other
elements, “a conspiracy of two or more persons . . . who are motivated by a specific class-based,
invidiously discriminatory animus”) (quoting Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir.
16

1995)). And to establish the existence of a conspiracy under § 1985(3), a plaintiff “must show
an agreement or a ‘meeting of the minds’ by defendants to violate the [plaintiff’s] constitutional
rights.” Simmons, 47 F.3d at 1377. “More specifically, the plaintiff must show ‘that there was a
single plan, the essential nature and general scope of which was known to each person who is
to be held responsible for its consequences.’” Strickland, 32 F.4th at 361–62 (quoting Simmons,
47 F.3d at 1378). Notably, the Fourth Circuit “has rarely, if ever, found that a plaintiff has set
forth sufficient facts” to satisfy this standard. Id. (quoting Simmons, 47 F.3d at 1377). The
appellate court has consistently rejected § 1985 claims “whenever the purported conspiracy is
alleged in a merely conclusory manner, in the absence of concreate supporting facts.” Id.
(quoting Simmons, 47 F.3d at 1377).
Here, Perkins broadly alleges that “Newcomer et al entered into a conspiracy to deprive
. . . Perkins, an incarcerated African American, . . . of equal protection/equal privileges and
immunities . . . by refusing to allow JPay LLC to distribute a JP6 digital tablet to . . . Perkins
which had been distributed to other Augusta Correctional Center prisoners on May 17, 2022.”
Compl. 48. He then recounts various grievances that he filed complaining about being denied
access to a tablet, some of which were rejected at intake or determined to be unfounded. Id. at
48–62. While Perkins may disagree with how his grievances were handled, his allegations do not
indicate that the defendants “had any sort of ‘single plan, the essential nature and scope of
which was known to each person who is to be held responsible for its consequences.’”
Strickland, 32 F.4th at 362 (quoting Simmons, 47 F.3d at 1378). At most, the allegations suggest
that the defendants responsible for responding to Perkins’s informal complaints and grievances
failed to adequately address the claims of discrimination that he raised in those filings. They do
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not suggest any “affirmative adherence to a single plan of discriminatory animus based on [his]
protected-class status.” Id.; see also id. (emphasizing that the defendants’ “alleged deliberate
difference to [the plaintiff’s] claims of sexual harassment” was “hardly the stuff of a
conspiracy”).
Because Perkins does not “plausibly allege any conspiratorial plan of class-based
discriminatory animus,” the § 1985(3) claim asserted in Claim Six must dismissed for failure to
state a claim upon which relief can be granted. Id. And since a § 1986 claim “depends on the
existence of a viable § 1985(3) claim,” id., the § 1986 claim asserted in Claim Seven is also subject
to dismissal.
D.

Claim Nine

In Claim Nine, Perkins asserts that various defendants violated the Commerce Clause of
the United States Constitution by obstructing his “ability to purchase JPay LLC products and
services and to communicate with the company by email.” Compl. 68. The Commerce Clause
empowers Congress “[t]o regulate Commerce . . . among the several States.” U.S. Const. art. I,
§ 8, cl. 3. Perkins’s claim appears to be based on what is referred to as the “dormant Commerce
Clause.” Am. Trucking Ass’ns v. Mich. PSC, 545 U.S. 429, 433 (2005) (quoting Oklahoma Tax
Comm’n v. Jefferson Lines, Inc., 514 U.S. 175, 179 (1995)).
“The dormant Commerce Clause restrains ‘the several states’ by limiting ‘the power of
the States to erect barriers against interstate trade.’” McBurney v. Young, 667 F.3d 454, 468 (4th
Cir. 2012) (quoting Dennis v. Higgins, 498 U.S. 439, 446 (1991)). “This negative command
presents a State from jeopardizing the welfare of the Nation as a whole by placing burdens on
the flow of commerce across its borders that commerce wholly within those borders would not
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bear.” Am. Trucking Ass’ns, 545 U.S. at 433 (internal quotation marks and alterations omitted).
“And it is driven by concern about economic protectionism—that is, regulatory measures
designed to benefit in-state economic interests by burdening out-of-state competitors.”
McBurney, 667 F.3d at 468 (internal quotation marks omitted). “The Clause does not purport
to restrict or limit intrastate commerce, nor protect the participants in intrastate or interstate
markets, nor the participants’ chosen way of doing business.” Brown v. Hovatter, 561 F.3d 357,
364 (4th Cir. 2009) (citing Exxon Corp. v. Governor of Md., 437 U.S. 117, 127 (1978)).
The court agrees with the defendants that Perkins’s allegations do not implicate the
dormant Commerce Clause. He does not allege that his denial of access to a JP6 device or JPay
services resulted from regulations or policies that “discriminate against interstate commerce or
out-state-economic interests.” McBurney, 667 F.3d at 469 (internal quotation marks omitted).
Instead, Perkins claims that defendants personally discriminated against him by obstructing his
ability to access JPay products and services. As noted above, the dormant Commerce Clause
“protects the interstate market, not particular interstate firms, from prohibitive or burdensome
regulations.” Exxon, 437 U.S. at 127; see also Colon Health Ctrs. of Am., LLC v. Hazel, 733
F.3d 535, 543 (4th Cir. 2013) (“In conducting the discrimination inquiry [under the dormant
Commerce Clause] a court should focus on discrimination against interstate commerce—not
merely discrimination against the specific parties before it.”) (emphasis in original).
Consequently, Claim Nine fails to state a plausible violation of the dormant Commerce Clause.
E.

Claim Ten

In Claim Ten, Perkins asserts that various defendants violated his “contract rights” under
the Constitution of Virginia. Compl. 71. More specifically, Perkins alleges that the defendants
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violated his “right to contract under the Virginia Constitution Section 1” by refusing to allow
JPay representatives to provide him with a JP6 tablet “after he signed a contract to receive
[one].” Id.
The court construes this claim as being brought pursuant to Sections 1 and 11 of the Bill
of Rights set forth in Article I of the Constitution of Virginia. Section 1 provides that “all men
are by nature equally free and independent and have certain inherent rights,” including “the
enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing
and obtaining happiness and safety.” Va. Const. Art. I, § 1. Section 11 provides that “no person
shall be deprived of his life, liberty, or property without due process of law” and “that the
General Assembly shall not pass any law impairing the obligation of contracts.” Va. Const. Art.
I, § 11.
“In order to enforce a private right of action under the Virginia Constitution, the
provision in question must be self-executing.” Doe v. Rector & Visitors of George Mason
Univ., 132 F. Supp. 3d 712, 728 (E.D. Va. 2015) (citing Robb v. Shockoe Slip Found., 228 Va.
678, 324 S.E.2d 674, 676 (Va. 1985)). “Article I, Section 1 is not self-executing because ‘it merely
recites principles, [and] provides no rules by means of which those principles may be given the
force of law.” McKiver v. Ireland, No. 7:23-cv-00548, 2024 WL 677707, at *6 (W.D. Va. Feb.
20, 2024) (quoting Gray v. Rhoads, No. 99-95, 2001 WL 34037320, at *5 (Va. Cir. 2001)).
Accordingly, Perkins has no viable cause of action based on an alleged violation of Section 1 of
the Bill of Rights.
To the extent that Claim Ten is based on the contract clause of Section 11, the claim
fares no better. “The Virginia contract clause has been interpreted by [the Supreme Court of
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Virginia] in a manner similar to the treatment of the federal clause by the United States Supreme
Court.” Working Waterman’s Ass’n v. Seafood Harvesters, Inc., 227 Va. 101, 314 S.E.2d 159,
163 (Va. 1984); see also U.S. Const. art. I, § 10, cl. 1 (providing that “[n]o State shall . . . pass
any Law impairing the Obligation of Contracts . . . .”). By its terms, the state contract clause,
like the federal clause, applies only to legislative action taken by the state. See New Orleans
Waterworks Co. v. La. Sugar Refining Co., 125 U.S. 18, 30 (1888) (“The prohibition [in the
federal clause] is aimed at the legislative power of the state, and not at the decisions of its courts,
or the acts of administrative or executive boards or officers, or the doings of corporations or
individuals.”). Here, Perkins does not allege that any legislative action by the Virginia General
Assembly has impaired any contract to which he is a party. Instead, he complains of actions
taken by individual VDOC officials. Consequently, the complaint fails to state a cognizable
violation of the contract clause of Section 11.
Finally, to the extent that Perkins alleges that the defendants violated his right to due
process under Section 11 by refusing to allow him to receive a JP6 tablet, the claim is subject to
dismissal for the same reasons as his federal due process claims. See Shivaee v. Commonwealth,
270 Va. 112, 613 S.E.2d 570, 574 (Va. 2005) (“Because the due process protections afforded
under the Constitution of Virginia are co-extensive with those of the federal constitution, the
same analysis will apply to both.”). Consequently, Claim Ten must be dismissed for failure to
state a claim upon which relief can be granted.
B.

Remaining Claims
The defendants have moved for summary judgment on the remaining claims (Claims

Three, Four, Five, Eight, and Eleven) based on affidavits submitted in support of the motion
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for summary judgment. With respect to those claims, the court concludes that outstanding
discovery renders summary judgment premature. Accordingly, the defendants’ motion for
summary judgment is denied without prejudice as to Claims Three, Four, Five, Eight, and
Eleven, and Perkins’s motions for relief under Rule 56(d) are granted in part with respect to
those claims. Additionally, the court grants the defendants’ motion for extension of time to
respond to the pending discovery requests. Perkins will be given 60 days to complete discovery
relevant to the remaining claims. The defendants will be given 75 days to file a renewed motion
for summary judgment.
IV.

Conclusion

For the reasons stated, the defendants’ motion for summary judgment, ECF No. 32, is
GRANTED IN PART AND DENIED WITHOUT PREJUDICE IN PART; Perkins’s
motions for relief under Rule 56(d), ECF Nos. 41 and 46, are GRANTED IN PART AND
DENIED IN PART; and the defendants’ motion for extension of time to respond to pending
discovery requests, ECF No. 51, is GRANTED. An appropriate order will be entered.
Entered: September 25, 2024
Mike Urbanski
Senior U.S.District Judge
2024.09.25 09:31:44
-04'00'

Michael F. Urbanski
Senior United States District Judge

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