Rowe v. Birckhead et al, No. 3:2019cv00418 - Document 52 (E.D. Va. 2021)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 5/12/2021. Copy to Rowe as directed. (jsmi, )
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Rowe v. Birckhead et al Doc. 52 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division UHURU BARAKA ROWE, Plaintiff, Civil Action No 3:19CV418 GREGORY L. HOLLOWAY, et al., Defendants MEMORANDUM OPINION Uhuru Bakara Rowe, a Virginia inmate proceeding p];;o ^ and in foima pauperis, filed this 42 U.S.C. § 1983 action. In his Amended Complaint ("Complaint," ECF No. 25),^ Rowe alleges that Defendants^ violated his First, Eighth, and Fourteenth Amendment rights respecting actions taken in connection with his essays; commenting on prison life that he attempted to mail to persons outiside of the institution. The matter is before the Court on the PAIiTIAL MOTION TO DISMISS ("Motion to Dismiss," ECF No. 41) filed b^' Defendants 1 The Court employs the pagination assigned to parties' submissions by the CM/ECF docketing system. 2 Defendants are ("Sussex"). all employed at Sussex II S tate Tracy Ray is the Warden, T.L. Birckhead Prison is the Operations Manager, B. Perkins is the Chief of Security, Michelle Carpenter is the Chief Intelligence Officer, Natasha Perkerson is an Intelligence Officer, C. Coleman is a Sergeant in I^ousing Unit 1, L. Shaw is the Senior Counselor and Work Program Assignment Reviewer, L. Taylor is the Institution Program Manager, and M. Bradley is the Division of Education Instructor for the Adult Basic Education class (collectively, the "Defendants"). (ECF No. 25, at 1-3.) Dockets.Justia.com and pursuant to the Court's screening obligations under 28 U.S.C. §§ 1915(e)(2) and 1915A. Rowe has filed PLAINTIFF'S DEPOSITION TO DEFENDANT'S PARTIAL MOTION TO DISMISS. ("Response," EOF No. 45.) For the reasons set for below, the Court will grant in part, and deny in part, the Motion to Dismiss and also will disuiss several claims as legally insufficient and frivolous. I. PROCEDURAL HISTORY This is the second of such actions filed by Ro we alleging that the same core group of Defendants violated his rights with respect to his political essays. represented by counsel. In the prior actio n, Rowe was Because the allegations stemmed from the same events, by Memorandum Order entered on August 2, 2019, the Court directed Rowe as follows: A review of the Court's docket reveals that Rowe, by counsel, is currently litigating substantially similar claims from the same time period against Some of the same defendants. See Rowe v. Clarke, No. 3::.8CV780 (E.D. Va. filed Nov. 8, 2018) (the "2018 Case" By Order (ECF No. 21) dated June 13, 2019, the Court dismissed the 2018 Case with leave to file an ^mended complaint. Rowe has now filed a Second Amended Complaint in the 2018 Case and Defendants have noted appearances therein. See Rowe, No. 3:18CV780 (E D. Va. filed Jan. 11, 2019); ECF Nos. 23, 24. The Court fails to discern why Rowe should be permitted to litigate a separate pro se action that is based on virtually the same facts and allegations as those in the 201E Case, that is filed against some of the same defendcnts in that case. Moreover, Rowe has now had an opportunity to amend his complaint in the 2018 Case to incorporate all claims and defendants. Accordingly, Rowe is directed to show good cause, within twenty (20) days of the date of entry hereof, why he should be permitted to litigate a second act;.on pro se while he has a similar action pending. must Rowi also demonstrate why allowing a second action to p roceed simultaneously furthers the interests of ju dicial economy and efficiency. {ECF No. 3.) Rowe responded, and stated as follows: 1. cf The 2018 Case concerns the censorship two of Rowe's political essays titled "Life at Sussex State Prison-Revisited" is and "Sussex 2 State Prison Potempkin Prison" which he attempted to send outside acquaintance via JPay electronic to a an secure messaging on or about June 1, 2018. The pro se 2019 Case concerns a positior. paper 2. which Rowe authored and attempted to mail to an c utside acquaintance via postal mail on or about May 8, 2018. 3. The two claims presented in the 2018 Ca se the violation of Rowe's First Amendment right are to free speech and his Fourteenth Amendment right to Due E rocess associated with the censorship of his political essays listed in paragraph 1. 4. The two claims presented in the pro se 2019 Case are government (i.e. Sussex II State Prison officials) retaliation against Rowe associated with his exercise of free speech in authoring a position paper that was highly critical of prison officials. The retaliatory actions taken against Rowe includes, among various other actions outlined in his pro se 2019 complaint, the censorship of the two essays listed in paragraph 1 above. These retaliatory actions, too, violated Rowe's First and Fourteenth Amendment rights (ECF No. 5, at 2-3.)3 By Memorandum Order entered cn September 25, 2019, the Court allowed the 2019 action to proceed. By Memorandum Opinion and Order entered on Janua]:y 22, 2020, the Court dismissed the Second Amended Complaint in tlie 2018 Case because he lacked standing to bring a claim for injunctive relief 3 Although he was not asked to file a response to Memorandum Order in this action, counsel for the the Court's 2018 Case submitted a letter indicating that he "do[es] not beli 2ve [the pro se case] is in any conflict with the case in wh; ch [he] is representing [Rowe]." (ECF No. 4, at 1.) and he failed to state a First or Fourteenth Amendment claim. See Rowe V. Clarke, No. 3:18CV780, 2020 WL 365103, at *1-31 (E.D. Va. Jan. 22, 2020), aff d 829 F. App'x 634 (4th Cir. 2020) Since the date when Court granted Rowe permission to proceed with this action, and after the Court dismissed all the claims in the 2018 Case, Rowe filed an Amended Complaint, and his clai ms expanded from two to eight. (ECF No. 25.) Many of the undeijlying facts are similar as to those alleged in the 2018 Case, and these cases are therefore, intertwined. To the extent that th«j Court has already found a similar claim lacking in the 2018 Casei, the Court will not engage in an extensive and repetitive discussion but will summarily dismiss the claim here as a matter of judicial economy, to avoid duplicitous litigation, and because the Court can consider a litigants past filings. Cf. Cochran v. Morris, 73 F.3d 1310, 1316 (4th Cir. 1996) ("A plaintiff's past litigious conduct should inform a district court's discretion under § 19^5[(e)(2)]." (citation omitted)). II. CONSIDERATION OF EXTRINSIC EVIDENCE It appears that Rowe's claims of retaliation derive almost entirely from information that he learned during discovery in the 2018 Case, and many of the facts alleged in his Conjiplaint come directly from the Deposition of Defendant Carpenter in that case. (See ECF No. 25-1.) Rowe attached the deposition to hi 3 Complaint, along with copies of his position papers, and copies 4 of various grievances he submitted. The parties rely on th<ise records extensively in their arguments. Notably, Defendants rely on Defendant Carpenter's deposition to argue that Rowe'is claims of retaliation lack merit. While the information in this deposition may ultimately be fatal to Rowe's claims, Defendants fail to offer any explanation as to why this Court can consider thiss extrinsic evidence in the context of a Motion to Dismiss. "If, on a motion under Rule 12{b)(6) . . . , matt[ers outside the pleadings are presented to and not excluded by the; court, the motion must be treated as one for summary judgment under Rule 56," and "[a]11 parties must be given a reasonable opportunity to present all the material that is pertinent to the mot;ion." Fed. R. Civ. P. 12(d); see Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 260-61 (4th Cir. 1998); Gay V. Wall, 761 F.2d 175, 177 (4th Cir. 1985). However, "a court may consider official public records, documents central to plaintiff's claim, and documents sufficiently referred to in the complaint [without converting a Rule 12(b)(6) motion into one for summary judgment] so long as the authenticity of these documents is not disputed." Witthohn V. Fed. Ins. Co., 164 F. App'x 395, 396-97 (4th Cir. 2006) (citations omitted). When reviewing a motion to dismiss, th4 Court may consider materials outside of the pleadings if the materials are "integral to and explicitly relied on in the complaint." Robinson V. Am. Honda Motor Co., 551 F.3d 218, 222 (4th Cir. 2009) (citation omitted). While the authenticity of the documents atta ched to the Complaint is not disputed, and the materials are "integral to and explicitly relied on in the complaint," see id., hot;h Defendants have Carpenter's deposition Defendants have cherry-picked failed as to it provide their any and from Defendant needs Because information serves Rowe argument, much less, persuasive argument, demonstrating that the Court mi^y consider 12(b)(6), Defendant Carpenter's deposition under Fed. R. Civ. P the Court must exclude any arguments relying specifically on the deposition at this juncture.^ III. STANDARD OF REVIEW Pursuant to the Prison Litigation Reform Act ("lPLRA") this Court must dismiss any action filed by a prisoner i: determines the action (1) "is frivolous" or (2) "failsi claim on which relief may be granted." see 28 U.S.C. § 1915A. the Court to state a 28 U.S.C. § 1915(e)(2); The first standard includes Claims based upon "'an indisputably meritless legal theory,'" or c:laims where Although the Court could convert this Motion to Dismiss into a Motion for Summary Judgment, it declines to do so sua sponte. "[C]onversion of a motion to dismiss to one for summeiry judgment requires that '[a]11 parties must be given a reasonable opportunity to present all the material that is pertinent to tt e motion.'" Bala V. Commonwealth of Virginia Dep't of ConNervation & Recreation, 532 F. App'x 332, 334 (4th Cir. 2013) (alteration in original) (citation omitted). Because the Court finds many of Rowe's claims fail to meet the standard to survive Fed 12(b)(6), the Court dismisses those here, and will th parties to file a motion for summairy judgment with respect to the remaining claims. the "^factual contentions are clearly baseless.'" Clay v. Yates, 809 F. Supp. 417, 427 (E.D. Va. 1992) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). The second standard is tjie familiar standard for a motion to dismiss under Fed. R. Civ. P. 12(b)(6). "A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a clsim, or the applicability of defenses." Republican Party of N.C V. Martin, 980 F.2d 943, 952 (4th Cir.1992) (citing 5A Charles \. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to sta te a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th see also Martin, 980 F.2d at 952. Cir. 1993); This principle app],ies only to factual allegations, however, and "a court considering a motion to dismiss can choose to begin by identifying pleadings tliat, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The Federal Rules of Civil Procedure "require[ ] o aly 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. V. Twombly, 550 U.S. 544, 555 (2007) (second alteration in original) (citation omitted). Plaintjiffs cannot satisfy this standard with complaints containing only "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Id. (citations omitted). Instead, a plaintiff must allege facts sufficient "to raise a right to relief above the speculative level," id. (citation omitted), stating a claim that is "plausible on its face," rather than merely "concei'^'-able." Id. at 570. "A claim has facial plausibility when the plairjitiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Igbal, 556 U.S. at 678 (citing Bell Atl. Corp., 550 U S. at 556). Therefore, in order for a claim or complaint to survi\ e dismissal for failure to state a claim, the plaintiff must "a liege facts sufficient to state all the elements of [his or] her claim." Bass V. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4t]l Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir, 2002); lodice v. United States, 289 F.3d 270, 281 (4th Cir. 2002)) Lastly, while the Court liberally constru<is pro se complaints, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), it does not act as the inmate's advocate, sua spontei developing statutory and constitutional claims the inmate failed to clearly raise on the face of his complaint. See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J., concurring); City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985) , Beaudett v, IV. SUMMARY OF ALLEGATIONS AND CLAIMS Rowe asserts that he "is a socially conscious and politically active prisoner who . . . writes essays and position papers that are often critical [of] prison conditions and prison officials." (ECF No. 25, at 3.)5 Rowe alleges that one of his posit ion papers, titled, "A Call To Action" and was "dated May 8, 2018, contained a detailed description of what [Rowe] beli eved were unconstitutional and inhumane conditions at [Sussex] including, "dirty and potentially contaminated drinking water, substandard food, arbitrary group punishment, critical understaffing levels, and the preventable deaths of over 12 prisoners due tc- deliberate (Id. at 5 ) Notably, indifference, neglect, and drug overdoses." "the position paper also contained a recommendation tha:a peaceful rally be held at the headquarters of the Department of Corrections (VDOC) in Richmond, Virginia in order to raise publi c awareness about the issues detailed in the position and to pij^essure officials to remedy those issues." (Id.) VDOC Rowe "rout.inely mails his writings to outside acquaintances via U.S. post a,l mail and JPay and secure "acquaintances electronic then messaging post (JPay them https://consciousprisoner.wordpress.com emails) on in an his effort blog to s The Court corrects the punctuation, spelling, capitalization in quotations from Rowe's submissions. his at raise and public awareness about what [Rowe] believes to be inhumane prison conditions." (Id. at 4.) According to Rowe, in February or March of 2018, Defendants Carpenter and Perkenson learned that Rowe had a blog, arjid Defendant Carpenter advised Defendant Perkerson to speak with Defendant Birckhead about how to "obtain a mail cover that will allow them to monitor, open and read [Rowe's] incoming and outgoing mail."® (Id. (citation omitted.)) "Defendant instructed Birckhead Defendants Carpenter and Perkerson on how to request ths mail cover from Defendant Ray" and Defendant Ray granted the request "without inquiring why the mail cover was needed." omitted).) (Id. at 4- 5 (citation On May 8, 2018, Defendants Carpenter an d Perkenson intercepted an outgoing letter of Rowe's that contained the position paper. [Rowe's] cell (Id. at 5.) was searched "On the morning of Ma/ 10, 2018, by two subordinate intelligence officers who were, upon information and belief, actir g under the direction of Defendant Carpenter." (Id.) After the cell search. Rowe was moved to the Restrictive Housing Unit ("RHU"). (Id. at 5-6.) ® As explained in the 2018 Case, "A 'mail co*'rer' is the 'process by which a nonconsensual record is made 6f any data appearing on the outside cover of any sealed or unsea ed class of mail matter, or by which a record is made of the conl^ents of any unsealed class of mail matter as allowed by law, to obtain information . . . .'" Rowe, 2020 WL 365103, at *2 n.! (citing 39 C.F.R. § 233.3(c)(1)). 10 In RHU, Rowe was issued an Institutional Cla ssification Authority ("ICA") Hearing Notification Form notifying Fowe that he was scheduled to appear at hearing on or after May 15, 2018. (Id. at 6.) Rowe "checked the box on the ICA form indicatinc his desire to attend the hearing, [but] he was denied the right tc do so when Defendant Perkins conducted the hearing without Plaintiff being present." (Id.) Rowe indicates that on May 15, 2(18, he was interviewed by Defendants Carpenter and Perkerson who informed him that he would stay in RHU until the end of their investigation (Id.) It is unclear whether Rowe was charged with any offense at that time. On May 24, 2018, Rowe was released back into General Population and was provided with "his personal property that had been inventoried and stored by Defendant Coleman, and "noticed that several of his political books and magazines Rowe were missing and had been either stolen or confiscated b y Defendant Coleman." (Id. at 6-7.) On May 28, 2018, Rowe reported to his work assignment as a Department of Education aide, but Defendant Bradley informed him that he had been terminated and that "[t]he decision came down from up top." (r^ at 7.) On May 30, 2018, Defendants Shaw and Bradley approved Defendant Bradley's termination request without a hearing. (Id. at 7-8.) In response to several inmate requests submitted by Rowe, Defendant Shaw informed Rowe that the she was instructed by the Administration that Rowe was not permitted to 11 work in the education area of the prison. (Id. at 8.) Rowe also requested to see the "a copy of the Incident Report that would reflect the specific reason(s) why he was terminated frim his job," but Defendant Clark denied that request noting that, "[ri] o incident reports will be forwarded to offenders," and that c.s Chief of Security, he can choose which inmates work in certain areas and that he "did not choose [Rowe] at that time." (Id. atj 8-9.) Rowe next repeats the summarized briefly as follows. allegations from the 2018 Case, On June 1, 2018, Rowe s.ttempted to send out two political essays by JPay email, however, the essays were intercepted and censored due to the mail cover. Id. at 10.) On June 6, 20, and 21, 2018, Rowe received ten ndtifications advising him that "the JPay e-mails containing the above two essays had been censored due to a * violation of COPD, Law, or DOC Policy." (Id.) The parties have agreed that Rowe's claims are as follows ("Statement of Claims"):'' Rowe adopts this statement of his claims provided by Defendants. (ECF No. 45, at 1-3.) This statement of Rowe's claims excludes any mention of the Fourteenth Amendment in his retaliation claims (Claims One, Two, Three, Five, Six, Seven, and Eight) and, therefore, the Court will not consider these as allsging such a violation. Even if Rowe had insisted that these clains alleged a Fourteenth Amendment violation too, he cannot assert a substantive due process claim of retaliation under the Fourteenth Amendment because the explicit text of the First Amendment p rotects rights. rignts. see See city City of or sacramenco Sacramento v. v. Lewis, uewis, 523 his 842 (1998) U.S. u.o. 833 ojo , ("Where a particular Amendment provides an explicit textual source of a constitutional protection against a particular sort of government behavior, that Amendment, not the more general notion 12 Claim One; On May 8, 2018, Defendants Carpenter, Perkerson, and Birckhead violated Rowe's First Amendment rights when they intercepted and censored his outgoing postal mail containing his position paper. Claim Two; (Id. at 11.) Defendants Carpenter and Perkersor , under the a) reliated direction of Defendant Birckhead, against Rowe in violation of Amendment, and (b) subjected him the First t o cruel and unusual punishment under the Eight h Amendment when they housed him in the RHU for fourteen days. (Id.) Claim Three; Defendant Coleman Ro ve's violated First Amendment rights when he retalia ted against Rowe by confiscating or destroying his reading materials. (Id. at 11-12.) Claim Four: Defendant Perkins violated Rowe's (a) Eighth, and (b) Fourteenth Amendment rights when he did not allow Rowe to attend the formal due process hearing. Claim Five; (Id. at 12.) Defendants Bradley, Shaw, and Ta ylor, under the direction Rowe's of First Defendant Amendment Clar c, rights violated when they retaliated against him by terminatjLng his job assignment. Claim Six: him from (Id.) and In June 2018, Defendants Carpenter Perkerson, under the direction of Defendant Birckhead, retaliated against Rowe in they ling his two intercepted his JPay emails contai violation of the political essays. Claim Seven: Defendant Ray violation of First Amendment; when (Id. at 12-13. retaliated the First againSt Rowe in Amendme It when he granted Defendant Carpenter's re(juest for a mail cover. (Id. at 13.) of sxibstantive due process, must be the guide for ana yzing these claims." (quoting Albright v. Oliver, 510 U.S. 266, 273 (1994) (Rehnquist, C.J.) (plurality opinion))). Accordingly , the Court will only address the retaliation claims under the Firs t Amendment. 13 Claim Eight; Defendant Clark retaliated against Rowe in violation of the First Amendment when he directed Defendants Bradley, Taylor, and Shaw to terminate Rowe from his work assignment. (Id.) Rowe demands monetary damages and declaratory relief. (Id. at 33- 34.) and are not Rowe's claims are pled in a disjointed manner, easily addressed in order, by type of claim, or tempo)rally. The Court first addresses the First Amendment retaliat|.on claims, which requires some unavoidable repetition, and then addresses the Due Process and Eighth Amendment claims the Court addresses Rowe's allegations of an ubsequently Finally, overarching conspiracy. V. A. ANALYSIS No Physical Injury Defendants first argue that Rowe fails to demonstrate any entitlement to relief because he alleges no physical injury as required to recover damages by the Prison Litigation ("PLRA"), 42 U.S.C. § 1997e(e). Reform Act The pertinent statut.e provides: "No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, fot mental or emotional injury suffered while in custody without a p :ior showing of physical injury." Id. However, Rowe's claims do not involve mental or emotional injury, but seeks compensatory < nd punitive damages, and Defendants fail to sufficiently address ^ i7hy the PLRA should limit other types of recovery such as nominal or punitive 14 damages. Indeed, courts have found that "Congress did not intend section 1997e{e) to bar recovery for all forms of relief." Royal V. Kautzky, 375 F.3d 720, 723 {8th Cir. 2004) (citations omitted) (allowing recovery for nominal and punitive damages under § 1983); see also Logan v. Hall, 604 F. App'x 838, 840 (11th Cir. 2015) (explaining that while "§ 1997e(e) foreclosed clains for both compensatory and punitive damages[,] . . . . [n]omi4al damages, however, are not precluded"). Moreover, Rowe brings the majority of his claiir s under the Defendants also fail to adequately address the First Amendment.® applicability of § 1997e(e) to First Amendment claimd. See King V. Zamiara, 788 F.3d 207, 211-17 (6th Cir. 2015) (dii^cussing the applicability concluding of that § 1997e(e) "deprivations to of First Amendment claims and First Amendment rights are themselves injuries, apart from any mental, emotional or physical injury that might arise from the deprivation, and thai: § 1997e(e) does not bar all relief for injuries to First Amendment rights") But see Logan, 604 F. App'x at 840-41 (finding no entitlement to compensatory or punitive damages for First Amendment c Laim because no allegation of physical injury). Accordingly, inadequacy of the current briefing, the Motion to given Dismiss the the Complaint because Rowe alleged no physical injury will be denied ® "Congress shall make no law respecting an estalj)lishment religion, or prohibiting the free exercise thereof U.S. Const, amend. I. 15 of B. Claim One Is Too Conclusory A "prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the systems." legitimate penological objectives of the correction Pell V. Procunier, 417 U.S. 817, 822 {1974). As the Supreme Court explained: [Clensorship of prisoner mail is justified ;.f the following criteria are met. First, the regulation or practice in question must further an important or substantial governmental interest suppression of expression. unrelated the Prison officials may not censor inmate correspondence simply unflattering or unwelcome opinions inaccurate statements. t;o to or eld.minate factually Rather, they must show that a regulation authorizing mail censorship furthers one or more its of of the security, limitation substantial order, of and First governmental rehabilitation. Amendment freedoms intere Second, must the be no greater than is necessary or essential to the prol^ection of the particular governmental interest involved Procunier v. Martinez, 416 U.S. 396, 413-14 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (:.989) In Claim One, Rowe argues that on May 8, 2018, Defendants Carpenter, Perkerson, and Birckhead violated his Fir^t Amendment rights when they intercepted and censored his outgoing postal mail containing his position paper. (ECF No. 30, at 11.) Rowe contends that "[o]n information and belief, on or about Maiy 8, 2018, Defendants Carpenter and Perkerson, at the direction of Defendant Birckhead, intercepted one of Plaintiff's outgocng containing a position paper he authorized entitled. Action.'" (ECF No. 25, at 5.) 16 Rowe argues 'A letters Call that to they "deliberately, maliciously, and wantonly intercepted a nd his outgoing U.S. postal mail . . . •" censored Much like (Id. at 11.) with the First Amendment claim in the 2018 Case,^ thus claim is too vague as alleged to state a claim for relief. As a preliminary matter, "'inmates' outgoing m ail may be opened and inspected by prison officials' because '[o]therwise, a prison official would never know that a letter contained the very censored." type of material that . . . could rightfully be Matherly v. Andrews, 859 F.3d 264, 281 (4th Cir. 201'7) (quoting Altizer V. Deeds, 191 F.3d 540, 548 (4th Cir. 1999)) (alteration and omission in original). Thus, to the extent Rowe c.lieges that Defendants violated his First Amendment rights by inte^rcepting and opening his mail, that contention fails to state a claim for relief on its face. However, it is settled that "[p]rison olificials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements." Martinez, 416 U.S. at 413. At most, Rowe contends that "[o]n information an<l belief, on or about May 8, 2018, Defendants Carpenter and Perkerson, at the direction of Defendant Birckhead, intercepted one of Plaintiff s outgoing letters containing a position paper" (ECF No. 30, at 5), 9 In the 2018 Case, Rowe alleged that "Defendants violated Rowe's First Amendment rights under the U.S. Cons titution by preventing him 'from correspond[ing] with non-priso ners form of essays.'" Rowe, 2020 WL 365103, at *2 original)(citation omitted). 17 in the (a. teration in and it was "censored." Rowe twice before, (Id. at 11.} his "use of As has been explained to [the] terra [* censor' or * censorship'] is a legal conclusion, which the Court need not take as true under Rule 12(b)(6) Rowe, 2020 WL 3651C3, at *10 Because this allegation is merely a legal conclusion, Claim One fails to state a claim against Defendants Birckhead, Carpenter, and Perkerson. Accordingly, Claim One will be dismissed without prejudice. C. First Amendment Retaliation Claims Three, and Five Through Eight) (Claim5 Two (a), Claims of retaliation by inmates are generally treated with skepticism because "tejvery act of discipline by prison officials is by definition retaliatory in the sense that it responds to prisoner misconduct." Cochran v. Morris, 73 F.3d I31(i, 1317 {4th Cir. 1996) (quoting Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994)) (some internal quotation marks omitted). "[P]laintif J:s who claim that their constitutional rights have been violated by official retaliation must present more than naked allegations of reprisal , . . ." Adams, 40 F.3d at 74. Instead, a plaintiff must allege facts that plausibly show "either that the retaliatory act was taken in response to the exercise of a constitutionally protected right or that the act itself violated such a right." Id. at 75. To state a claim for retaliation in violation qf the First Amendment, a plaintiff "must allege that (1) [he or] she engaged in protected First Amendment activity, (2) the defendants took 18 some action that adversely affected plaintiff's] [the First Amendment rights, and (3) there was a causal relations hip between [the plaintiff's] protected activity and the defendants' conduct." Constantine v. Rectors & Visitors of George Mason Univ , 411 F.3d 474, 499 (4th Cir. 2005) (citation omitted). As to the first factor, the United States Court of Appeals for the Fourth Circuit has held that inmates engage in protected First Amendment activity when they write grievances lawsuits. and file See Booker v. S.C. Dep't of Corr., 855 F.3d 533, 544- 46 (4th Cir. 2017). determination as to With respect to the second factor, the whether a defendant's actions "adversely affected [the plaintiff's] First Amendment rights," Constantine, 411 F.3d at 499 (citation omitted), is a fact-specific inquiry, which takes relationships. into account the actors involved and See Bait. Sun Co. v. Ehrlich, 437 F.3d their 410, 416 (4th Cir. 2006). The United States Court of Appeals for the Fourth Circuit has explained "adverse effect" as follows: First Amendment retaliation is actionable because "retaliatory actions may tend to chill individuals' exercise of constitutional rights." ACLU of Md, , Inc V. Wicomico County, Md., 999 F.2d 78~o"i 785 (4tih Cir. 1993). Not all retaliatory conduct tends to chill First Amendment activity, however, DiMeglio v. Haines, 45 F.3d 790, 806 (4th Cir.1995), and a plaintiff seeking to recover for retaliation must show that the defendant's conduct resulted in something more than a inconvenience" to her exercise of First rights, ACLU of Md., 999 F.2d at 786 n.6. conduct that tends to chill the minimis Amendment Of course. exercise of constitutional rights might not itself depriv e such rights, and a plaintiff need not actually be depr Lved of 19 First her First Amendment rights in order to establish Amendment retaliation. Id. Constantine, 411 F.3d at 500. "[A] plaintiff suffers adverse action" for the purposes of a First Amendment retali ition claim "if the defendant's allegedly retaliatory conduct w'ould likely deter 'a person of ordinary firmness' from the exercise Amendment rights." of First See id. (citations omitted). As to the third factor - causation - a plaintiff must allege facts sufficient to show a causal connection betweeiii See Amendment activity and the alleged adverse action. 501. the First id. at "In order to establish this causal connection, a plaintiff in a retaliation case must show, at the very least: defendant activity." was aware of [his or] Id. (citation omitted). . . . 'does not establish a her engaging iIL that the protected However, "[k]nov ledge alone causal connection ]Detween the protected activity and the adverse action." Id. (quot:Lng Price v. Thompson, 380 F.3d 209, 213 (4th Cir. 2004)). There must also be circumstantial evidence, such as evidence that the retaliation took place within some "temporal proximity" of ths protected activity, or direct evidence of a retaliatory motive Hill V. Lappin, 630 F.3d 468, 475-76 (6th Cir. 2010) 20 Id.; see As a preliminary matter. Defendants concede for t he purposes of the Motion to Dismiss, "that Rowe's writings wers protected conduct under the First Amendment," and therefore, h e satisfies factor one. (ECF No. 42, at 9); see Trulock v. Free h, 275 F.3d 391, 404-05 {4th Cir. 2001). The Court now turns to the second As discussed and third factors for Rowe's retaliation claims. below, Rowe's Complaint "charge[s] that every singl^ action by prison officials represented either a conspiracy or a ifetaliation" and "[t] his extended litany of conspiratorial serious doubts on [Rowe's] claims." 1. act:Lvity casts Cochran, 73 F.3d a t 1317-18." Claim Two (a) In Claim Two (a), Rowe contends that Defendants C^rpenter and Perkerson, under the direction of Defendant Birckhead, retaliated against Rowe in violation of the First Amendment, when they housed him in the RHU for fourteen days after intercepting 1 is position paper. (ECF No. 30, at 11.) ( ECF No. 25, Rowe's letter was intercepted on May 8, 2018. at 5.) Rowe was placed in the RHU on May 10, 2018. (Id. at 5- 6.) On May 15, 2018, Defendant Carpenter and Perkersoiji questioned Rowe "concerning the issues raised in his position pape r, the rally it recommended and the writings on his blog," ani Defendant Carpenter "informed [Rowe] he would remain in the RP:u until the "The Court will address Rowe's allegations of an overarching conspiracy in Part V.F. 21 completition [of] her investigation." (Id. 6.) at Such allegations are sufficient to satisfy the second and tljird factors of a retaliation claim. Accordingly, the Motion to Djismiss will be denied with respect to Claim Two (a) 2. Claim Three In Claim Three, Rowe contends that Defendant Colenjian violated Howe's First Amendment rights when he retaliated agai nst Rowe by confiscating or destroying Rowe's reading materials, at 11-12.) ECF No. 30, In sum, Rowe provides: On May 24, 2018, [Rowe] was released from tjhe RHU back to General Population and was assigned his personal property that had been inventoried and stoied by Defendant Coleman. Upon examining his personal property. Plaintiff noticed that several of his political books and magazines were missing and had either been stolen or confiscated by Defendant Coleman, including The Insurrectionist, Cointelpro: The FBI's Secret War on Political Freedom, Queer (In)Jijistice, Fundamental Political Line of the Internationalist Ministry of Prisons, [and] International Ministry (MIM) Theory [2-10]. Maoist Maiost (Id. at 7 (paragraph structure omitted).) Rowe fails to allege facts that would suggest th^t Defendant Coleman's confiscation of his reading materials would liave chilled a reasonable person's exercise of his First Amendment rights, or that there was a causal connection between his exercise of his First Amendment rights with respect to the May 8, 2C18 position paper and the missing reading materials. Rather, Rowe merely speculates that his materials were taken in retaliat ion for his exercise of his First Amendment rights without any fac :ual support 22 to back up that contention. Amendment Accordingly, the First: See Adams, retaliation aspect of Claim Three fails at the start. 40 F.3d at 74 ("[P]laintiffs who claim that their constitutional rights have been violated by official retaliation mlist more than naked allegations of reprisal . . . ."). present Instead, this claim appears to be more of a grievance that he was deprived of his property. Although off subject, for the sake of efficiency, the Court discusses this aspect of Claim Three below. The Due Process Clause applies only when governnent action deprives an 569 (1972). is legitimate liberty c >r property Bd. of Regents of State Colls, v. Roth, 408 U.S. 564, interest. claim individual of a The first step in analyzing a procedural due process to identify protected interest. whether the alleged conduct affects a Beverati v. Smith, 120 F.3d 50 ), 502 (4th Cir. 1997) (citing cases). The Court generously consti:ues Rowe to argue that when Defendant Coleman inventoried and mad ntained his papers and books and failed to return all of the materials to him. he was deprived of due process of law. In his Response, Rowe states: "Because this cods of culture and silence and secrecy existed among the Defendant who retaliated against Rowe for blowing the whistle on conditions at the prison. it is impossible for Rowe to provide a clear link betweisn Defendant Coleman and Rowe's writings . . . (ECF No. 45, at 8.) Rowe had an attorney in the 2018 Case and that case clearly had discovery and depositions of the Defendants involved in this case pertaining to the same conduct. All of the alleged retaliatory already taken place while that lawsuit was pending in Rowe had ample opportunities to obtain sufficient fac:ts to plead this claim. 23 First, the Due Process Clause is not implicated by a negligent act of state official causing unintended loss of property. Daniels V. Williams, 474 U.S. 327, 328 (1986). Negligent and intentional deprivations of property "do not violate [the Due Process] Clause provided . . . that adequate state post-deprivation remedies are available." Hudson v. Palmer, 468 U.S. 517, 533 (19^4) (finding due process satisfied by post-deprivation remedy to redress intentional destruction of personal property by p:jrison guard during a shakedown). Moreover, Virginia's provision of adequate post-deprivation remedies forecloses Rowe's due process claim for the deprivation of See property. id.; Molby, Wilson No. I:12cv42 (JCC/JFA), 2012 WL 1895793, at *6-7 (E.D. Va. May 23, 2012); Henderson v. Virginia, No. 7;07-cv-00266, 2008 WL 204480, at *10 n.7 (W.D. Va. Jan. 23, 2008) Virginia has provided adequate post-deprivation i-emedies for deprivations caused by state employees. Under the Vj^rginia Tort Claims Act, Virginia has waived sovereign immunity for damages for "negligent or wrongful" acts of state employees acting within the Va. Code Ann. § 8.01-195.3 (W est 2021).12 The United States Court of Appeals for the Fourth Circ lit has held scope of employment. that the Virginia Tort Claims Act and Virginia tort law provide 12 tt[T]he Commonwealth shall be liable for claims for money. . . on account of damage to or loss of property or personal injury or death caused by the negligent or wrongful act or omission his of any employee while acting within the sco'pe of employment . . . ." Va. Code Ann. § 8.01-195.3 (West 24 2021). adequate post-deprivation remedies for torts committed by state employees. 1985). See Wadhams v. Procunier, 772 F.2d 75, 77-78 (4th Cir. Because the availability of a tort action in state court fully satisfies the requirement of a meaningful post deprivation process, Rowe cannot state a claim for the loss of fc is property See Wilson, 2012 WL 1895793, at under the Fourteenth Amendment. *6-7; Henderson, 2008 WL 204480, at *10 n.7. Accor dingly, the remaining portion of Claim Three will be dismissed a s frivolous and for failure to state a claim. 3. Claims Five and Eight In Claim Five, Rowe contends that Defendants Br adley, Shaw and Taylor, under the direction of Defendant Clark, vio First Amendment rights when they retaliated terminating him from his job assignment. ated Rowe's agai|ist (ECF No him by 25, at 12.) Similarly, in Claim Eight, Rowe argues that Defejndant Clark retaliated against Rowe in violation of the First Am<€ I ndment when he directed Defendants Bradley, Taylor, and Shaw to teinninate Rowe from his work assignment. (Id. at 13.) It is unclear terse allegations whether this was a work assignment from Rowe's that he had merely been recommended for or whether this was a job that he already had, and that ambiguity makes this claim d ifficult to assess. In support of these claims, Rowe argues that, on 4ay 8, 2018, Defendant Bradley recommended Rowe for the job as a Department of 25 Education aide. (Id. at 7.) Rowe was placed in the RHU on May 10, 2018, and, was released on May 24, 2018. (Id. at E-6.) Thus, it appears that Rowe did not actually perform this j Db, but had merely been approved for a new work assignment. On May 28, 2018, Rowe reported to the work assignment, but Defendant Bradley "informed him that he was terminated from his work assignment" and (Id. at 7 (citation that "the decision came down from up top." omitted).} Rowe alleges that, "[o]n May 30, 2018, Defendants Shaw and Taylor approved Defendant Bradley's without conducting a . . . [h]earing." terminati^on (Id. at 7.) request In response to several inmate requests submitted by Rowe, Defendant Shaw informed Rowe that the she was instructed by the Administration that Rowe was "not to work" in the education area of the prison. (Id. at 8.) Defendant Shaw noted that the requesit would be forwarded to Defendant Clark for his response. (Id. at 8.) Rowe also requested to see the "a copy of the Incident Repor:: that would reflect the specific reason(s) why he was terminated frDm his job," but Defendant Clark denied that request noting that, "[:i]o incident reports will be forwarded to offenders," and that, as Chief of Security, he selects which inmates can work in certain areas and that he "did not choose [Rowe] at that time." (Id. ai: 8-9.) As a preliminary matter, Rowe has failed to allege facts indicating that Defendant Bradley, Taylor, or Shaw had any role in the decision to terminate Rowe from his work assignmen t. 26 In order to state a viable claim under 42 U.S.C. § 1983, a plaintiff must allege that a person acting under color of state law cieprived him or her of a constitutional right or of a right conferred by a law of the United States. See Dowe v. Total Action Against. Poverty in To state Roanoke Valley, 145 F.3d 653, 658 {4th Cir. 1998). a legally sufficient claim for an alleged violation oi: a federal constitutional right, Government-official "[a] plaintiff defendant, through must the plead that official's individual actions, has violated the Constitution." each own Ashcroft V. Iqbal, 556 U.S. 662, 676 (2009) (citations omitted). ^.ccordingly, the plaintiff must allege facts that affirmatively show "that the official charged acted personally in the deprivation of the plaintiff['s] rights. Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (internal quotation marks omitted). Rowe's own allegations provide that Defendant Clark acted alone in discontinuing Rowe's work assignment in the education department. To the extent that Rowe faults Defendants Bradley, Taylor, or Shaw for conveying the information that he had (ECF No. 5, at 9.) been terminated or for denying his grievance complaining about the termination, that is insufficient to state a claim for relief. DePaola v. Ray, No. 7:12cv00139, 2013 WL 4451236, at *8 (W.D. Va. July 22, 2013) (observing that the-fact denial of a grievance falls far short of establishing § 1983 liability." (citing Brooks v. Beard, 167 F. Apji'x 923, 925 27 (3rd Cir. 2006))). Rowe fails to allege facts that Defendants Bradley, Taylor, or Shaw were personally involved in terminating him from the work assignment, and therefore, could not have retaliated against Rowe for exercising his First Amendment rights Thus, Claim Five will be dismissed for as legally insu:^ficient and as frivolous What remains is Rowe's contention that Deferjidant Clark terminated him from his position as a Department of Education aide in retaliation for Rowe's exercise of his First Amendment rights with respect to the May 8, 2018 position paper. claim of retaliation is weak, at best. the timing of the termination, at As pled, this Nevertheless, because of this juncture Rowe has sufficiently pled a claim to survive Fed. R. Civ. E,, 12(b)(6). Accordingly, Claim Eight remain with respect to Defenc^ant Clark." 4. Claim Six In Claim Six, Rowe contends that in June 2018, Carpenter and Perkerson, under the direction Defendants ol; Defendant Birckhead, retaliated against Rowe in violation of the First Amendment when they intercepted his JPay email containing his two political essays. (ECF No. 25, at 12-13.) Rowe contends that, on 1 essays by June 1, 2018, he attempted to send out two politics] If Rowe also intended to name Defendants Brad;.ey, Taylor, and Shaw in Claim Eight, any claim against those Defendants will be dismissed for the same reason as Claim Five. 28 JPay email, however, the essays were intercepted and censored due to the mail cover. (Id. at 10.) On June 6, 20, and 21, 2018, Rowe received ten notifications advising him that "t;he JPay e- mails containing the above two essays had been censor5d due to a 'violation of COPD, Law, or DOC Policy.'" (Id.) The Court fails to discern, and Rowe fails to explain with specificity, what protected activity he engaged in that caused Deiendants to allegedly retaliate against him with respect to the June 1, 2018 JPay email. Nevertheless, the Court assumes that Rowe intends to allege that Defendants blocked his JPay email on June 1, 2018, in retaliation for exercising his First Amendment rights v?ith respect to the May 8, 2018 intercepted letter and position pajier, and his blog. On the facts alleged in the Complaint, Rowe has £:ufficiently pled a claim to survive Fed. R. Civ. P. 12(b)(6). 5. Claim Seven In Claim Seven, Rowe contends that Defendant Ra^ retaliated against Rowe in violation of the First Amendment wher he granted Defendant Carpenter's request for a mail cover in Maich of 2018. (ECF No. 25, at 13.) Rowe admits that Defendant Ra^^ issued the mail cover "without inquiring why the mail cover was needed and without having been provided with any evidence that [Rowe] used his correspondence activities." (Id. at 4-5.) to engage in illegal or had criminal This mail cover was appro /ed prior to any conduct that Rowe claims was retaliatory and he concedes that 29 Defendant Ray issued it without any knowledge of why it was needed, thus, Howe fails to allege facts indicating that De iendant Ray issued the mail cover with a retaliatory motive." In Rowe's Response, he states, "[f]or purposes of this Opposition brief only, Rowe concedes that Defendant Ray is not liable as d ascribed this count and that it should be dismissed." in {ECF No. 45, at 13.) Accordingly, Claim Seven is legally insufficient a nd will be dismissed. D. Due Process Claim (Claim Pour (b)) In Claim Four (b), Rowe contends that Defendk.nt Perkins violated his Fourteenth Amendment rights when he conducted formal due process hearing without Rowe present. The the Due Process Clause of the Fourteenth Amendment prohibits a state from depriving an individual of life, liberty, or property without du^ law. See U.S. Const, amend. XIV, § 1. process of As discussed previously, the first step in analyzing a procedural due process claim is to identify whether the alleged conduct affects a protec ted liberty or property interest. omitted). Beverati, 120 F.3d at 502 (citations Presumably, Rowe argues that he was entitlesd his due process hearing and when the hearing was to attend condui:ted without "In the 2018 Case, the Court already found that he approval of the mail cover did not violate Rowe's constituti*d>nal rights. See Rowe, 2020 WL 365103, at *7. 30 him present. Defendant Perkins denied him the due process of law However, Rowe does not allege that the conduct violat ed either a protected property or liberty interest, and thus, he has failed to state a viable due process claim. Even so, "the inability to attend one's disciplinery hearing, does not, standing alone, constitute a due process violation." Proctor V. Hamilton, No. 1:19CV275 (TSE/MSN), 2021 WL 67353, at *2 (E.D. Va. Jan. 7, 2021) (citation omitted) Accorc.ingly, Rowe fails to allege facts indicating that Defendant Perkd ns his due process rights. violated Claim Four (b) will be d israissed as legally insufficient and as frivolous.^® Under Wolff v Supreme Court has McDonnell, 418 U.S 539, 560-61 (1974), the facing a when an inmate is held that, disciplinary hearing that may result in the loss op a liberty interest, such as good conduct credits, an inmate is entitled to the following protections: (1) an impartial tribunal; (2) written notjice of the charges prior to the hearing; (3) an opportunity to call witnesses and present documentary evidence; (4) aid from a fellow inmate or staff representative if the issues are complex; and, (5) a written statement by the fact finder describing the evidence relied upon and the reasons for taking disciplinary action. Coor V. Stansberry, No. 3:08CV61, 2008 WL 8289490, at "2 (E.D Va. Dec. 31, 2008) (citing Wolff, 418 U.S. at 563-71). However, the procedures outlined in Wolff are not themselves libert;T interests; they are merely protections afforded to inmates whos cognizable liberty interests are denied." Proctor, 2021 WL 67353 (emphasis added). Thus, despite what Rowe appears to suggest, WojLff provides Rowe no liberty interest in attending a hearing. In the agreed upon Statement of Claims, Defendants did not include a First Amendment retaliation claim as a component of Claim Four. Although Rowe agreed to this omission, nevert;heless, the Court believes Rowe intended to raise such a claiip, 31 albeit E. Eighth Amendment Claim (Claims Two (b) and E'our (a)) To allege an Eighth Amendment claim, an inmate must allege facts showing: (1) objectively that the deprivation suffered or harm inflicted "was 'sufficiently serious,' to the inmate; and (2) subjectively that the prison officials acted with a 'siufficiently culpable state of mind.'" Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir. 1998) (quoting Wilson v. Seiter, 501 U.£i. 294, 298 (1991)). Under the objective facet of the test, the allege facts showing that the deprivation complained of inmate must was extreme and amounted to more than the "routine discomfort" that is "part of the penalty that criminal offenders pay for their against society." offenses Strickler v. Waters, 989 F.2d 1375, 1380 n.3 (quoting Hudson v. McMillian, 503 U.S. l, 9 (1992)). "Only extreme deprivations are adequate to satisfy the objective com]ponent of an Eighth Amendment claim regarding conditions of confinement." De'Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003) (citation omitted). To successfully plead such extreme depri-vation, Rowe vaguely pled claim. (See ECF No. 25, at 12.) Thereiiore, in the abvindance of caution, the Court addresses that claim The Court construes Rowe to argue that Defend ant Perkins retaliated against Rowe for exercising his First Amendi.ment rights when he conducted the formal due process hearing w ithout Rowe present. (Id.) Rowe fails to allege facts that plans:Lbly suggest any causal connection between his exercise of his Fir^t Amendment rights and Defendant Perkins holding the formal due process hearing without Rowe in attendance. Accordingly, Rowe fails to state a claim for relief against Defendant Perkins on this gro ind, and any such allegation in Claim Four will be dismissed. 32 "must allege 'a serious or significant physical or emotional injury resulting from the challenged conditions.'" Id. at 634 (quoting Strickler, 989 F.2d at 1381). The subjective facet of the test requires the plaintiff allege facts showing that a deliberate indifference. particular defendant acted to with See Farmer v. Brennan, 511 U S. 825, 837 (1994). "Deliberate indifference is a very high standard—a showing of mere negligence will not meet it." Grayson v. Pee d, 195 F.3d 692, 695 (4th Cir. 1999) (citing Estelle v. Gamble, 429 U.S. 97, 105-06 (1976)) [A] prison official cannot be found liable und sr the Eighth Amendment for denying an inmate humane conciitions of confinement unless the official knows cf and disregards an excessive risk to inmate health or siafety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference Farmer, 511 U.S. at 837. Farmer teaches "that gener4l knowledge of facts creating a substantial risk of harm is not dnough. The prison official must also draw the inference between those general facts and the specific risk of harm confronting the inmate." Quinones, 145 F.3d at 168 (citing Farmer, 511 U.S. at 837); see Rich V. Bruce, 129 F.3d 336, 338 (4th Cir. 1997) (steiting same). Thus, the deliberate indifference standard requires a ]3laintiff to assert facts sufficient to permit an inference that "the official in question stibjactively recognized a substantial rijsk of harm" and "that the official in question subjectively recognized that 33 his actions were 'inappropriate in light of that risk ex rel. Lee v. Cleveland, 372 F.3d 294, 303 {4th Parrish Cir. 2004) (quoting Rich, 129 F.3d at 340 n.2). 1. Claim Two (b) In Claim Two (b), Rowe contends that Defendants Carpenter and Perkerson, under the direction of Defendant Birckheac., subjected him to cruel and unusual punishment under the Eighth when they housed him in the RHU for fourteen days. at 11.) Amendment (ECF No. 25, In support of this claim, at most, Rowe alleges that he was subjected to "14 days in an isolation cell in the ]IHU, for 22 24 hours a day where torture." (Id. at 11.) he suffered physical and psychological However, Rowe's vague complaints about the conditions of his confinement amount to no more than "'routine discomfort [that] is part of the penalty that crimincil offenders pay for their offenses against society.'" Strickler, 1380 n.3 (quoting Hudson, 503 U.S. at 9). 989 F.2d at As to the objective facet, Rowe fails to allege that he sustained any injury, much less a "a serious or significant physical or emotional injury resulting from the challenged conditions.'" Id. at this reason alone, his claim may be dismissed. However, Rowe also fails to allege facts that suggest that Defendants 1381. knew of For and disregarded a substantial risk of serious harm to Rowe from simply 34 housing him in the RHU for fourteen days.^'' Rowe fails to satisfy either facet of the Eighth Amendment. Accordingly, C1 aim Two (b) will be dismissed for failure to state a claim and as frivolous. 2. Claim Four (a) In Claim Four (a), Rowe contends that Defend^.nt violated his Eighth Amendment rights when he conductec, due process hearing without Rowe present. frivolous. Perkins the formal This claim is entirely Again, Rowe fails to allege facts that wculd suggest that he sustained any injury, much less, "a serious or significant physical or emotional injury resulting from" the alle^ed Id. at 1381. Rowe also fails to plausibly suggest th conduct, t Defendant Perkins knew of and disregarded a substantial risk of serious harm to Rowe by holding the hearing without Rowe present, Claim Four (a) will be summarily dismissed for failure to state a claim and as frivolous. 1'' The Court recognizes that long-term isolation in solitary confinement under certain conditions may amount tc cruel and 923 F.3d 348, unusual punishment. See, e.g., Porter v. Clarke, 364 (4th Cir. 2019). Those circumstances are not allsged here. Although not alleged in the Statement of Claims agreed upon by the parties, to the extent Rowe somehow suggests 1|:hat housing him in the RHU violates due process, that claim would fail. conditions that do not impose an atypical and Prison signifiednt hardship on a prisoner in relation to the ordinary incidents of prison life See are not protected interests under the Due Process Clause. Sandin v. Conner, 515 U.S. 472, 484 (1985) (h(}3Iding that disciplinary segregation does not present the type of atypical, significant deprivation in which the state might crea ze a liberty interest). 35 F. Allegations Of An Overarching Conspiracy The Court notes that the Statement of the Claims agreed upon by the parties, does not include a conspiracy claim. Nevertheless, in his Complaint, and in his Response, Rowe contend 3 that each action taken against him is evidence of a "'larger conspiracy' among Defendants 'to retaliate against him for hi 5 speech." protected (See ECF No. 25, at 11-12; ECF No. 45, at 8.) Rowe apparently believes that his mere allegation that a conspiracy existed somehow alleviates him of the necessity to plausible claim for relief against the named Defendants. plead a That is not so. Moreover, as discussed below, Rowe has failed fo plausibly allege that a conspiracy exists To establish a civil conspiracy under § 1983, Rowe must allege facts indicating that the Defendants "acted jointly in concert and that some overt act was done in furtherance of the conspiracy which resulted in [the] deprivation of a constitutional right." Hinkle V. City of Clarksburg, W.Va., 81 F.3d 416, 421 (4th Cir. 1996) (citing Hafner v. Brown, 983 F.2d 570, 577 (4th Cir. 1992)). this suggest end, Rowe must allege facts that plausibly agreement or a 'meeting of the minds' by defendants to claimant's constitutional rights." To "an violate the Simmons v. Poe, 4'' F.3d 1370, 1377 (4th Cir. 1995) (quoting Caldeira v. Cty. of Kauai, 866 F.2d 1175, 1181 (9th Cir. 1989)). "Where the complaint makes only conclusory allegations of a conspiracy under § 1983 ^nd fails to 36 demonstrate any agreement or meeting of the minds among the defendants, the court may properly dismiss the complaint." Brown V. Angelone, 938 F. Supp. 340, 346 {W.D. Va. 1996) (citations omitted) Other than insisting that every action taken against him was part of a conspiracy to retaliate against him for ex€:rcising his First Amendment rights, Rowe fails to allege facts that suggest that Defendants all agreed to retaliate against Rowe. Nowhere in his Complaint does Rowe provide any facts that plausibly suggest that these Defendants "formed any type of agreement concert to injure him." Id. In support of or acted this conspiracy, Rowe contends that a conspiracy existed claim because in of all the adverse actions occurred "within a span of ju^t 28 days" (Compl. 14), and that the "individual adverse actions t^ken against him by Defendants were a coordinated effort to punish him for the criticisms of the conditions and officials at [Sussex (Id. at 15.) Rowe later states that "his allegation of consp racy should be sufficient enough to establish a link" between the Defendants and the alleged retaliation. (ECF No. 45, at 9.) cannot just explain away all actions taken against hitji a conspiracy without supplying and facts to support of a conspiracy. actions of Rowe as part of tile existence See Cochran, 73 F.3d at 1318 (expla ning that a complaint "charg[ing] that every single action by pris an represented either a conspiracy or retaliation," must. 37 officials be treated with skepticism, and "[t]his extended litany of conspiratorial activity casts serious doubts" on such claims (citin<j Adams, 40 F.3d at 74-75)). In other words, to state a claim Eor relief, Rowe cannot simply guess that a conspiracy existed to deprive him of his rights. Nor can Rowe offer a blanket assertion that a conspiracy must exist because it is the only explanation for Defendants' actions. By Rowe's definition, any coordinated action taken by prison officials would amount to a conspirac y, and that is simply not the case. Rather, "[t]he mere fact t lat each of these actors played a part in the events is not suffici.ent to show such a unity of purpose." Brown, 938 F. Supp. at 34 5. In sum. Rowe fails to allege facts that plausibly suggest the existence of a conspiracy amongst the Defendants to violate his rights. Id. Therefore, Rowe's claims alleging that an overarching conspiracy frivolous existed will be dismissed as legally insufficient and 19 19 Rowe also suggests that this alleged conspiracy essentially makes it impossible to create a causal connect; on between and that he Defendants actions and the alleged retaliatory conduct should be permitted to "flesh out the details of the: conspiracy (See, and what role each Defendant played in the conspiracy." e.g., ECF No. 45, at 8 (suggesting that the conspira cy makes it "impossible for Rowe to provide a clear link" between the actions taken against Rowe)). Between the filing of the 2018 Case and now, Rowe had discovery, and an attorney, which is siignificantly more than most pro se litigants. It was incumbent state a plausible claim for relief of a conspiracy through the Court's screening obligations under 28 U (e)(2), and at this juncture, he has failed to do so. 38 pon Rowe to v; to make it S.C. § 1915 VI. CONCLUSION The Motion to Dismiss (ECF No. 41) will be granted in part and denied prejudice. in part. Claims One will be dismissed without Claims Two (b), Three, Four, Seven, Eiglit, and any claim of a conspiracy will be dismissed with prejudice as legally insufficient and frivolous. Claims Two (a). Claim Five against Defendant Clark only, and Claim Six remain. Defender ts Coleman, Perkins, Bradley, Shaw, Taylor, and Ray will be d Lsmissed parties to the action. Any party wishing to file a as motion for summary judgment will be directed to do so within fortjy-five (45) days from the date of entry hereof. The Clerk is directed to send a copy of the Memoi}"andum Order to Rowe and counsel of record. It is so ORDERED. /s/ Robert E. Payne Senior Uhited States District Judge Richmond, Virginia Date: 2021 39
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