Trapp v. Fahey et al, No. 3:2010cv00134 - Document 18 (E.D. Va. 2011)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 7/10/11. Copy sent: Yes(tdai, )
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IN THE UNITED FOR THE STATES DISTRICT EASTERN DISTRICT COURT OF VIRGINIA Richmond Division MICHAEL D. TRAPP, SR., Plaintiff, v. Civil Action No. HELEN F. FAHEY, et 3:10CV134 al., Defendants. MEMORANDUM OPINION Michael U.S.C. § evaluation D. 1983 Trapp, Sr., action. pursuant a The to 28 Virginia matter U.S.C. inmate, is §§ before The Magistrate PROCEDURAL Judge made the 1915(e)(2) Jurisdiction is appropriate pursuant to 28 U.S.C. I. brings § this Court and 1343(a)(3). HISTORY the following findings Preliminary Review This Court must dismiss any action filed by a prisoner if the Court determines the action (1) "is frivolous" or (2) "fails to state a claim on which relief may be granted." 28 U.S.C. § 1915 (e) (2); see 28 U.S.C. § 1915A. The first standard includes claims based upon wvan indisputably meritless legal theory,'" or claims where the "'factual contentions are clearly baseless.7" Clav 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 the familiar standard for a motion to dismiss under Fed. R. Civ. P. 12(b)(6). to dismiss for 1915A. recommendations: "A motion 42 under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles A. Wright & Arthur R. Miller, and Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state 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. MyIan Labs.. Inc. v. Matkari. 7 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952. This principle only applies to factual allegations, however, and "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Icrbal, 129 S. Ct. 1937, 1950 (2009). The Federal Rules of Civil Procedure "require[] only '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) (quoting (1957)). Plaintiffs Conlev v. cannot Gibson, 355 satisfy this U.S. 41, 47 standard with complaints containing only "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Bell Atlantic Corp., 550 U.S. at 555 (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," id. at 570, rather than merely "conceivable." plausibility when the Id. plaintiff "A claim pleads has factual facial content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing- Bell Atl. Corp. , 550 U.S. at 556) . Therefore, in order for a claim or complaint to survive dismissal for failure to state a claim, the plaintiff must "allege 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 (4th Cir. 2003) 213 270, (citing Dickson v. (4th 281 Cir. 2002); (4th Microsoft Corp., F.2d 1147, 1151 F.3d 193, Iodice v. United States, 289 F.3d 2002)). Lastly, while the Court Cir. liberally construes pro se complaints, 574 309 (4th Cir. 1978), Gordon v. it does not Leeke, act as the inmate's advocate, sua sponte developing statutory and constitutional claims the inmate failed to clearly raise on the face of his complaint. See Brock v. Carroll, 107 concurring); 1278 F.3d 241, 243 Beaudett v. (4th Cir. 1985). (4th Cir. 1997) City of Hampton, (Luttig, 775 J., F.2d 1274, Summary of Allegations Trapp violation. appeared parole is incarcerated (Compl. before 3.) On the The review. Virginia VPB and Claims for a 1997 October Parole determined 8, probation 2009, Board that Trapp ("VPB") Trapp was for not suitable for release on parole. (Compl. Ex. A.) The VPB stated in writing its reason for denying parole: "Prior failure(s) under community supervision, therefore, unlikely to comply with conditions of parole." (Compl. Ex. A.) On December 11, 2 009 Trapp requested to know what information was provided by the institution to the VPB. (Compl. Ex. D2.) An institutional representative responded to Trapp, explaining information must be approved by that such release of "Mr. Martin" who would return to work on December 21, 2009. (Compl. Ex. D2.) Trapp appealed to the VPB the denial of his parole release.1 (Compl. Ex. F.) Trapp raises three claims: Claim A Defendants violated " [c]onstitutional Trapp's to Due and Equal Protection, by to afford [Trapp's] parole Process failing eligibility review and a right fully comprehensive (Compl. evaluation." 4.)2 Claim B Defendants "statutory violated right consideration" to when "failed to conduct 8, 2009] requirements (Compl. 4.) 1 Trapp provided appeal cover sheets, Attachment," and "See Grounds for Appeal." however, the Court which (Compl. Exs. in statutory policy's Attachments October interview with and parole Defendants [Trapp's parole accordance Trapp7s fair with merely [sic]." copies state, outlining B, F.) of the "See supporting Trapp failed, to submit a copy of the substance of his appeal. 2 Trapp uses the phrase "parole eligibility," but he actually complains about the denial of his release on parole. Claim C w[Trapp's] on the parole statutory [Trapp] liable, denial was based offense for which had been found criminally instead of and assembly of accurate and sufficient Educational, Rehabilitative, (Compl. and Sentence Data." 4.) Trapp requests an award amounting to two million dollars for emotional distress, pain, and suffering. Trapp also requests that the VPB reconsider him for parole release, taking into consideration his "Educaitional [sic], Rehabilitative, and Sentence Data as Outlined by Statutory Parole Decision Factors as well as Institutional Adjustment factors during Plaintiff's twelve (12) year Federal Sentence." (Compl. 4.) Analysis In order to state a viable claim under 42 U.S.C. § 1983, a plaintiff must allege facts that indicate a person acting under color of state law deprived 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 Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998). As explained below, Trapp fails to allege how the VPB deprived him of a constitutional right or a right conferred by a law of the United States. A. Claim A: Due Process Claim Trapp claims that he was denied due process because the VPB failed "to afford [Trapp's] parole eligibility a fully comprehensive review and evaluation." (Compl. 4.) As a Virginia inmate, Trapp's limited liberty interest in his parole release determination at most entitles him to a written reason explaining why he was denied parole. See Vann v. Angelone, 73 F.3d 519, 522 (4th Cir. 1996); Franklin v. Shields, 569 F.2d 784, 797 (4th Cir. 1977) (en bane); Burnette 4279403, at Circuit has repeatedly *8 v. (E.D. examined held that Fahey, Va. Oct. the it No. 25, 3:10cv70, 2010) [statutory] does not ("The 2010 Fourth language create a WL and liberty interest in parole release." (alteration in original) (internal quotation marks and citation omitted)).3 Trapp 3 "Virginia courts have made clear that the Virginia 'given absolute discretion in matters of Parole Board is acknowledges that he received all the 4279403, *8. Trapp's at was due. also it Thus, Burnette, is Trapp 2010 RECOMMENDED WL that claim be DISMISSED. Claim A: Trapp he Accordingly, due process B. received such notice. process Equal Protection Claim complains that the parole procedure violated his equal protection rights.4 (Compl. 4.) Trapp fails to support this allegation with any facts that suggest that the VPB has treated him differently from any person similarly situated to him. Kaine, No. 3:08cv490, Mar. 11, 2010) 551 (4th Cir. that Trapp's C. 2010 WL 883807, (citing Townes 2009)). v. Patterson v. at *7 557 Jarvis, Accordingly, it (E.D. F.3d is Va. 543, RECOMMENDED equal protection claim be DISMISSED. Claim B: Violation of Statutory Requirements In Claim B, Trapp complains that the VPB violated Trapp's "statutory right to fair parole consideration" when it "failed to conduct [Trapp's October 8, 2009] parole interview in accordance with statutory requirements and policy's [sic]." (Compl. 4.) Trapp does not otherwise elaborate on this claim or provide the statutory authority on which he relies. Moreover, Trapp's assertion that the VPB failed to abide by state law does not give rise to a federal claim. Any "alleged deviation involves at most a state procedural requirement that would be required to be enforced in the Virginia courts, under Virginia law." Burnette, 2010 WL 4279403, at *10 (citing Hill v. Jackson, 64 F.3d 163, Cir. 1995); Riccio v. Cnty. of Fairfax, Va. , 1459, 1469 ("If state (4th Cir. law 1990) ) ; grants abide by parole.'" (E.D. Va. 2005) discretion 907 F.2d at 1469 procedural rights 4 than the a state's failure the F. Garrett v. Supp. when Robinson. due 368, 371 415 has ruled that upon acting 863 2d process Commonwealth, Court "impinge [] Board James v. federal 3 66 This not a F. the on Supp. the absolute parole 275, 277 1994). "No State shall jurisdiction Const, do not Fahey, (1992)). of applications." Va. is (quoting 247 regulations (E.D. law Robinson v. S.E.2d 245, VPB's that (4th F.2d see Riccio, more Constitution would otherwise require, to 171 907 amend. the equal XIV7 § 1. . . . deny to any person within its protection of the laws." U.S. issue.") ; Swarthout v. Cooke, 131 S. Ct. 859, 863 (2011) . Trapp fails to offer any facts which plausibly suggest that he is RECOMMENDED D. In entitled that Claim C: Claim to Claim B C, relief. be Failure Trapp Accordingly, it is DISMISSED. to admits Consider Various that the VPB Factors denied him parole because he had previously failed community supervision. Trapp argues that the VPB should have considered other factors, such as "Educational, Rehabilitative, and Sentence Data."5 (Compl. 4.) The United States Court of Appeals for the Fourth Circuit has held that "inmates are entitled to no more than minimal procedure," Vann, 73 F.3d at 522, which requires only that the parole authority furnish to the prisoner a "written statement of its reasons for denying parole." Franklin, at *8. 569 F.2d at 797; see Burnette, "[W] here the denial of parole 2010 WL 4279403, . . . rests on one constitutionally valid ground, the Board's consideration of an allegedly invalid ground would not violate a constitutional right." Bloodgood v. Garraghty, 783 F.2d 470, 475 {4th Cir. 1986) . Denial based on previous failure to adhere to community supervision is a valid ground. See, e.g., Fleming v. Murray, 888 F. Supp. 734, 736-37, 741 (E.D. Va. 1994). Trapp has not shown that the VPB violated any constitutionally protected interest. Accordingly, it is RECOMMENDED that Claim C be DISMISSED. (Apr. 11, that he fourteen 2011 Report and Recommendation.) could (14) file days objections of the date or of an The Court advised Trapp amended entry complaint thereof. Trapp within has not responded. II. "The magistrate The makes recommendation has 5 for the factors. STANDARD only a no OF recommendation presumptive Trapp does not provide proposition that REVIEW the to this weight, court. and the Court with authority VPB must consider these the responsibility court." to make Estrada v. (citing Mathews v. a final Witkowski, Weber, determination 816 F. 423 U.S. Supp. 261, remains 408, 270-71 410 with (D.S.C. (1976)). this 1993) This Court "shall make a de novo determination of those portions of the report or specified objection is objections proposed made." findings 28 to a magistrate's focus attention on those heart of the parties' (1985). of U.S.C. enables and Thomas v. "The to which filing the district judge legal-that Arn, 474 are U.S. of to at the 140, 147 This Court may adopt without de novo review any portion Ins. Co.. recommendation to which Petitioner does objection. 416 There being no Clerk will 28 AND objections be ADOPTED, DIRECTED U.S.C. § to and (4th Cir. 2005). and upon review of the record and the Report and Recommendation will the note 1915(g). 316 Colonial Life & CONCLUSION the Report and Recommendation, ACCEPTED See Diamond v. F.3d 310, III. purposes 636(b)(l). report dispute." not raise a specific be § recommendations issues-factual the magistrate judge's Accident or action the will be disposition of DISMISSED. the action The for The Clerk is DIRECTED to send a copy of the Memorandum Opinion to Trapp. An appropriate Order will issue. /a/ Robert E. Payne Senior United States District Judge Date : Richmond;
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