King v. Smith et al, No. 3:2012cv00012 - Document 48 (E.D. Va. 2014)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 9/2/2014. Copies as directed to King and counsel of record.(cmcc, )
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IN THE UNITED FOR THE STATES DISTRICT ,£rMLJUn] COURT SEP - 22014 V) EASTERN DISTRICT OF VIRGINIA Richmond Division CLERK, U.S. DISTRICT COUR1 RICHMOND.VA JOE EDMOND KING, Plaintiff, v. Civil Action No. DAN SMITH, 3:12CV12 et al., Defendants. MEMORANDUM OPINION Joe Edmond King, a Virginia detainee currently in the custody of the Department of Behavioral Health and Developmental Services ("DBHDS"), proceeding pro se filed this 42 U.S.C. § 19831 complaint. Court on: Stewart, (1) III, Behavioral No. 30); in forma pauperis, The matter is before the the Motion to Dismiss filed by Defendant James W. the Health (2) and Commissioner and of the Developmental Virginia Services Department ("DBHDS") (ECF No. 23); Defendants Sheriff Dan Smith, (3) the Motion to Dismiss filed by Captain Darryl Smith, Lt. That statute provides, in pertinent part: Every person who, under color of any statute . . . of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law .... § (ECF the Motion to Dismiss filed by Defendant Dr. Glenn R. Miller, Jr. 42 U.S.C. of 1983. Keith Bocock, Sgt. Johnson, Deputy Eddie Thompson, (ECF Elbert Cassady, U.S.C. Hancock, and Steve Turner No. 37); §§ and Sgt. (4) the 1915(e)(2) & Barry Vipperman, Deputy Jason Handy, Court's evaluation King has No. 41.) For the reasons set forth below, Defendant Stewart's Miller's Motion to Dismiss, Deputy Sara ("Patrick County Jail Defendants")2 1915A. Motion Deputy Bobby to Dismiss, to responded. 28 (ECF the Court will grant will will deny the Defendants' Motions to Dismiss, pursuant grant Defendant Patrick County Jail and will summarily dismiss Claim Two. I. KING'S COMPLAINT In his Particularized Complaint the following allegations with ("Complaint"),3 King makes respect to the remaining4 defendants:5 2 The Court employs the spelling of Defendants' names provided in the Motion to Dismiss. Because King's original complaint failed to provide each defendant with fair notice of the facts and legal basis upon which his or her liability rested, by Memorandum Order entered 24, 2012, the Court directed King to file a on April particularized complaint. On May 9, 2012, King filed a Particularized Complaint (ECF No. 8), however, the Particularized Complaint only marginally improved the deficiencies of the original complaint. 4 The Court previously dismissed Defendant Ramona Baliles from the action. The capitalization, quotations (ECF No. 44.) Court corrects the and spelling, and from King's complaint. spacing, removes punctuation, emphasis from The Court believes "SVP" in (1). Mr. Joe King, Plaintiff herein, an ex-felon in the Commonwealth of Virginia, serving parole in Virginia, was prosecuted pursuant to § 37.2-900 et. seq. of the Code as a SVP. (2) . Mr. King was adjudicated to be a SVP pursuant [to] § 37.2-900, by an order dated November 24, 2009. Prior to being physically committed to the "Department" he was considered for conditional release as required by law. (3). Pursuant to § 37.2-909(A): [6] committed respondents: committed pursuant to placed in the custody control, care, alterations, for or ease of and treatment ..." King's submissions is short Because King's Complaint alterations Placement ". . . any respondent this Chapter shall be of the Department for of omissions for "Sexually Violent Predator." contains many omissions and reference, in bold. the All Court notes other all alterations appear in the Complaint. 6 Section 37.2-909(A) of the Virginia Code provides: Any respondent committed pursuant to this chapter shall be placed in the custody of [DBHDS] for control, care, and treatment until such time as the respondent's mental abnormality or personality disorder has so changed that the respondent will not present an undue risk to public safety. [DBHDS] shall provide such control, care, and treatment at a secure facility operated by it or may contract with private or public entities, in or outside of the Commonwealth, or with other states to provide comparable control, care, or treatment. At all times, respondents committed for control, care, and treatment by [DBHDS] pursuant to this chapter shall be kept in a secure facility. Respondents committed under this chapter shall be segregated by sight and sound at all times from prisoners in the custody of a correctional facility. The Commissioner may make treatment and management decisions regarding committed respondents in his custody without obtaining prior approval of or review by the committing court. Va. Code Ann. § 37.2-909(A) (West 2013). added admissions and (5) . On 11-24-2009, Mr. King was granted conditional release by the Circuit Court for Patrick County pursuant [to] the provisions of § 37.2-912 and § 37.2-913 of the Code. (6). On 7-9-2010 Ramona Baliles, Parole Officer, signed a Petition for an Emergency Custody Order accusing Mr. King of ". . . violating Sex Offender Special Instructions F, L and U . . . ." She did not accuse that Mr. King violated any criminal statute within the Code of Virginia. (7). Pursuant [to] the Emergency Custody Order authorized by Magistrate C.C. (unknown) in Patrick County, Ramona Baliles commanded that Mr. King [be arrested and], ". . . . must remain in custody pending [a] hearing in [the] Circuit Court . . . ." See EXHIBIT A (7-9-2010 Emerg. Custody Order). (8) . Ramona Baliles ordered that Mr. King be taken to the Patrick County Jail [after his arrest] for evaluation by a person designated by the D.B.H.D.S., the "Department." (9) . On the Custody Order petitioned for by Ramona Baliles, the command was/is, ". . . to deliver [Mr. King] into the custody of the Department of Behavioral Health and Developmental Services at the following location (fill in) . . ." for the [Va. Code Ann. § 37.2-913] evaluation . . . ." The blank line on the form was filed in [by Ramona Baliles] instructing the Patrick County Jail DEFENDANTS to keep Mr. King in their custody [at the jail] pending a hearing in the Circuit Court . . . , [instead of delivering [him] to the "Department" or V.C.B.R. whose address is 4901 Patrick Henry Hwy., Burkeville, VA]. (10) . The Custody Order issued by the magistrate at Ramona Baliles's request, commanded that Mr. King, ". . . shall the Department be placed in the custody of ..." (as defined in § 37.2-900 - definitions). (11) . As a result of the custody order requested by Ramona Baliles, Mr. King, who violated no law and committed no crime, was arrested and taken into punitive Jail . . environment . of the Patrick County . (12). On 7-8-10 Mr. King was in fact placed in punitive Restraints by the state police, like a common criminal, and taken to [the] Patrick County Jail, where custody of Mr. King was given to and taken by Captain Darryl Smith, who is known to Mr. King as the Chief Jailer (at PCJ) and the person in responsible charge of the jail, acting for the Sheriff. Captain Darrell Smith assigned Mr. King to be held in general population with dangerous convicted felons in violation of state law § 37.2-909(A). (14) . Mr. King was detained illegally in the punitive environment of the Patrick County Jail in general population violation of state law § 37-909(A) from 7-9-2010 to 2-14-2011. (15) . During this time the Commissioner [of the Department] knew Mr. King was in his "custody" and housed in the Patrick County Jail, illegally; and, took no action to have him (1) transported to V.C.B.R.; or (2) segregated away from dangerous criminals in the jail as required by § 37.2-909(A) of the Code. (16). Pursuant § 37.2-913 (B) Mr. King was supposed to be transported to a secure [hospital] facility specified by the Department where a person designated mental by health the Department examination. See shall § perform 73.2-913 of a the Code. (17) . Dr. Rex Miller was designated by the Commissioner/Department and he came to the Patrick County Jail where he observed Mr. King in the dangerous punitive environment and then interrogated him under those conditions instead of a proper clinical setting. Mr. King was not read his rights by law enforcement; was not charged with any crime; and, was denied consultation with an attorney by Dr. Rex Miller while he was acting as an agent for the office of the Attorney General. See § 37.2913(B). (18). On November 1, 2010, in the Circuit Court for Patrick County, Virginia, the Judge committed Mr. King, " . . . to the custody of the DBHDS for appropriate treatment and confinement in a secure facility designated by the Commissioner of the DBHDS . . . ." Mr. King's detainment at the Patrick County Jail continued, illegally, in general population, from 11-1-2010 to 9-19-2011 before he was taken to the VCBR in Burkeville, Virginia. . . . (19) . The Patrick County Court further ordered that Mr. King, ". . . shall have an annual review of his civil a.m.; commitment on November 1, and, . . ." this due established by statute law 2011, at 9:00 process right . . . was completely ignored by the defendants herein. (21) . During the time Mr. King spent in environment of the Patrick County told by "Jail Captain Barber," Darryl and cut Smith hair he of the punitive Jail he was would the be the inmates and convicted prisoners in the jail. (22) . . . . [N]ow the defendants had assigned him to work with tools and in personal physical contact with prisoners as he cut hair which clearly violated § 37-909(A) of the Code of Virginia. (23) . The Patrick County Court's Order on 11-1-2010 further stated that, ". . . the Commissioner of DBHDS shall provide a report to the Court, the OAG, and Mr. King's attorney no later than sixty (60) days prior to the hearing . . ." which was ordered to be held on 11-1-2011 at 9 a.m. . . . (24). Sixty days prior to 11-1-2011 Mr. King asked Therapist Ms. Short and VCBR Facility Director Ms. Kimberly H, Runion about his progress report. Pamela Sargent, with OAG, had not scheduled transportation for the hearing that was ordered by the Court; and, instructed Ms. Runion to not do Mr. King's evaluation until Oct. 2012. (Compl. at 1-4.) The Court generously construes King to raise the following claims for relief: Claim One: Defendant Stewart Amendment due violated process King's rights7 by Fourteenth failing to transfer King from the Patrick County Jail to the "No State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const, amend. XIV, § 1. custody of the Virginia Center for Behavioral Rehabilitation ("VCBR") and housing King in general population of the Patrick County Jail. Claim Two: Defendants Captain Darryl Smith and Sheriff Dan Smith violated King's Fifth Amendment rights8 by admitting King to the Patrick County Jail in handcuffs and housing King in general population in violation of section 37.2-909(A) of the Virginia Code. Claim Three: The Patrick County Jail King's due process rights Defendants violated by housing King in general population and failing to transfer King from the Patrick County Jail to the custody of the VCBR despite his repeated complaints. Claim Four: Defendant Captain Darryl Smith violated King's due process rights by assigning King to work as a barber, placing him contact with inmates in violation of section 37.2-909(A) of the Virginia Code. Claim Five: Defendant Miller violated King's due process rights because he "knew it was illegal to detain Mr. King in a jail/prison general population . . . but willfully allowed" King to remain in the jail instead of transferring him to the VCBR. (Id. at 6.) 8 The Fifth Amendment provides: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. U.S. Const, amend. V. Claim Six: Defendant Miller violated King's due process rights when Defendant Miller "interrogated" King when King "was not read his rights, . . . was not charged with any crime, and was denied consultation with an attorney . . . ." (Id. at 3.) For the reasons stated below, Claims One, Two, Five, and Six about the will be dismissed with prejudice. II. Because of PROCEDURAL HISTORY King's lack of candor with the Court reason for at least a portion of his detention, the Court first summarizes the procedural background leading to King's detention as provided by record. No. (See Defendant Stewart's 31-1 through 31-6); Cir. (citation 2009) court may consider from prior state 12(b)(6) motion" Stewart Mem. and available Supp. Mot. matters court and of Exs. 1-6, ECF 589 F.3d 127, Walker v. Kelly, omitted) Dismiss 139 (4th (explaining public proceedings "without that record in from the public "[a] such as conjunction having to federal documents with convert a Rule the Rule 12(b) (6) motion to one for summary judgment . . .") . On July 20, ("Circuit Court") house with twenty-five 1993, Nos. CR92009665-00 Circuit Court for Patrick County convicted King of rape and entering a dwelling the intention years the of to commit a incarceration. and CR92009667-00 8 rape See and sentenced him to Commonwealth (Va. Cir. Ct. v. King, July 20, 1993).9 On November 24, 2009, the Circuit Court found King to be an but SVP, nonetheless conditional release, involuntary secure pursuant the to determined the less impatient Sexually that King was treatment Violent for alternative restrictive suitable to and Predator hospitalization Act, Virginia section 37.900 et seq. Commonwealth v. King, No. (Va. November The Cir. accepted Ct. entered the conditional restrictions on incarceration to Id. at On King's the 24, 2009). release release, supervision plan, and of 08-196, released Patrick at Circuit added 1-6 Court further King County Code from probation. 2-6. June 22, 2010, police arrested King in Patrick County and charged him with entering school property after a conviction of a sexually violent offense on May 19, section 18.2-370.5 of the Virginia Code.10 Supp. Mot. 2010, a felony under (See Stewart's Mem. Dismiss Ex. 2, at 1-2.) 9 See http://www.courts.state.va.us (select "Case Status and Information;" select "Circuit Court" from drop-down menu; select hyperlink for "Case Information"; select "Patrick Circuit Court" from drop-down menu and follow "Begin" button; type "King, Joe," and then follow "Search by Name" button; then follow hyperlink for "CR92009665-00" and "CR92009667-00"). 10 "Every adult who is convicted of a sexually violent offense . . . shall be prohibited from entering or being present (i) during school hours . . . upon any property he knows or has reason to know is a public or private elementary school or child day center property . . . ." Va. Code Ann. § 18.2-370.5 (A) (West 2014). On July Emergency 2010, Custody probation violated 9, Order officer, several a Patrick based Ramona terms of County upon a issued petition filed by stating Baliles, his magistrate that King conditional release, an King's had including entering school property during school hours or during hours of school-related activity. 9, 2010, 1.) (See id. Ex. 3, at 1-2.) As King was housed in the Patrick County Jail. The Emergency Custody Order commanded that of July (See id. at "ANY AUTHORIZED OFFICER" take King into custody and transport him to the Patrick County Jail where King "must remain in custody pending hearing in Circuit Court." (Id.) On November 1, 2010, his King appeared in the Circuit Court for conditional release violation hearing. King, No. CL-08-196, at 1-4 (Va. Cir. See Commonwealth v. Ct. Nov. 1, 2010). The Circuit Court found that King had violated the conditions of his release, revoked was his no longer conditional ordered that King for appropriate "be suitable County Jail Mem. treatment and November 1, 2010, because of the Supp. Mot. at committed to the designated by the Commissioner hearing on conditional Id. release. for 2. . . . ." was pending Dismiss 3; see id. 10 Circuit custody of the confinement King The release, and Court [DBHDS] in a secure facility (Id.) Following the returned to the felony charge. Ex. 2, at 1). Patrick (Stewart's The Circuit Court found King guilty of entering school property after having been adjudged a sexually violent offender, and on February two years and 28, 2011, six the Circuit months of imprisonment Virginia Department of Corrections three months of of the incarceration CR10019122-00, On that King three at 1-2 (Va. Cir. 16, could be 2011, released September 19, 2011. at 1.) 2011. months. to the custody of leaving an active v. term King, No. Feb. 28, 2011). Virginia the (Stewart's Mem. Parole custody Supp. Board of VCBR on Dismiss Ex. Mot. the ordered 6, King moved into the custody of the VCBR on September 19, (Compl. 3.) III. Pursuant STANDARD OF REVIEW to the Prison Litigation Reform Act Court must dismiss any action filed by determines the action (1) a on relief claim § 1915(e)(2); includes which see claims 28 based "is U.S.C. upon a prisoner if the frivolous" or may § H,an be ("PLRA") (2) "fails to granted." 1915A. The indisputably 28 first baseless.'" Clay v. (quoting Neitzke Yates, v. 809 F. Williams, 11 Supp. 490 417, U.S. 319, 327 Court state U.S.C. meritless 427 this standard theory,'" or claims where the "'factual contentions are 1992) to with two years and Commonwealth Ct. the sentenced King in ("VDOC"), sentence suspended, of September Court legal clearly (E.D. Va. (1989)). The second standard dismiss under Fed. "A motion sufficiency contests is R. Civ. to of a the familiar P. under complaint; the Arthur R. 952 facts, (4th Cir. Miller, Federal Rule a motion 12(b) (6) importantly, applicability of defenses." 980 F.2d 943, for to 12(b)(6). dismiss surrounding standard the it merits does of a tests not 1992) resolve claim, Republican Party of N.C. the or the v. Martin, (citing 5A Charles A. Wright & 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 plaintiff. Cir. in Mylan Labs., 1993); applies viewed see only to factual a identifying pleadings motion are Ashcroft v. Igbal, The Inc. also Martin, considering conclusions, the not light most v. Matkari, 980 F.2d to dismiss that, 556 U.S. to 662, 952. This to the 1134 (4th principle however, and "a choose to begin can because entitled 7 F.3d 1130, at allegations, favorable they the are no assumption court more of by than truth." 679 (2009). 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, (second alteration in original) 12 550 U.S. 544, 555 (quoting Conley v. (2007) Gibson, 355 U.S. 41, 47 with complaints "formulaic Id. (1957)). Plaintiffs containing recitation of the (citations omitted). sufficient level," "to id. raise only cannot "labels elements Instead, a right (citation satisfy and of this standard conclusions" a cause of or action." a plaintiff must allege facts to relief omitted), above stating the a speculative claim that "plausible on its face," rather than merely "conceivable." at 570. pleads "A claim factual reasonable has content inference misconduct Corp., U.S. at plausibility that that alleged." 550 facial allows the Igbal, is Id. defendant the plaintiff court the when to draw the for the is liable 556 U.S. at 678 Therefore, 556). a (citing Bell Atl. in order for a claim or complaint to survive dismissal for failure to state a claim, the plaintiff the must "allege elements of [his or] & F.3d Co., 324 Microsoft United Corp., States, sufficient her claim." 761, 309 289 facts 765 F.3d F.3d Bass v. (4th 193, 270, Cir. 213 281 to E.I. 2003) (4th (4th state all DuPont de Nemours (citing Cir. 2002); Cir. 2002)). Dickson v. Iodice v. Lastly, while the Court liberally construes pro se complaints, Gordon v. Leeke, the 574 F.2d inmate's 1147, 1151 advocate, (4th Cir. sua sponte 1978), it does developing not act statutory as and constitutional claims the inmate failed to clearly raise on the face of his complaint. See Brock v. Carroll, 13 107 F.3d 241, 243 (4th Cir. Hampton, 1997) (Luttig, 775 F.2d 1274, J., 1278 concurring); (4th Cir. IV. Beaudett v. City of 1985). ANALYSIS 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 deprived him or her of a constitutional right or of a right conferred by a law of the United States. Action Against Poverty in Roanoke Valley, Cir. 1998) vicarious (citing liability plaintiff must through the that is § 1983). inapplicable Furthermore, to doctrine 550 of v. ... § Total 658 (4th "[b]ecause 1983 suits, a that each Government-official defendant, Ashcroft Gibbs, Dowe 145 F.3d 653, official's own individual actions, v. the U.S.C. [allege] Constitution." Vinnedge 42 See v. Igbal, F.2d 926, 556 928 respondeat has violated the U.S. (4th 662, superior is (2009); 1977) Cir. 676 (noting inapplicable to § 1983 actions). King committee, generally contends Defendants that improperly as an detained SVP him County Jail, in general population, from his 2010 September 2011. King Code required through 37.2-909(A) of 19, the Virginia and in a the civil Patrick arrest on July 8, believes that Defendants to section detain King either in the VCBR or "segregated by sight and sound at all 14 times from prisoners in the custody of a correctional facility." Va. Code Ann. A. § 37.2-909(A). Defendant Stewart In Claim One, to due King argues that process when he the punitive failed to environment of Stewart violated his right have the King Patrick transferred out County Jail of into the custody of the VCBR, in violation of Virginia Code section 37.2909(A). The Due deprives an interest. 564, Process Clause individual of See Bd. 569-70 a applies when legitimate government liberty of Regents of State Colls, (1972). Thus, the first v. step or action property Roth, 408 U.S. in analyzing a procedural due process claim is to identify whether the alleged conduct affects a Beverati v. Smith, omitted). itself, protected 120 A liberty F.3d 500, 502 interest may or property (4th Cir. 1997) interest. (citations arise from the Constitution or from state laws and policies. Wilkinson v. Austin, 545 U.S. 209, 220-21 (2005) King interest liberty fails in to allege being (citations omitted). that detained he had a somewhere legitimate other than liberty general population of the Patrick County Jail between his arrest for a new felony charge on June 22, 2010 and his sentencing for his conviction of that charge on February 28, 2011. While King alleges that he "violated no law and committed no crime, 15 [and] was arrested and taken Patrick County Jail" wholly omits proceedings any or into (Compl. the environment of 2), King misstates the truth. reference his punitive to his lawful detention in concurrent the the King criminal Patrick County Jail for that felony charge and conviction. Stewart Complaint, has King shown was that at detained new criminal charge, all in the times relevant Patrick County Jail not as a civil detainee. has demonstrated that, on June 22, to 2010, the for a Defendant Stewart police arrested King for his commission of a new felony - entering school property as a sexually violent offender. The Magistrate ordered King detained in the Patrick County Jail pending his criminal trial, the Circuit Court convicted King of the offense, King to an active February 28, 2011. term of three months of and sentenced imprisonment on Nevertheless, King argues that he improperly remained in the punitive environment until September 19, 2011. Based on the public record, King would have completed his three-month active criminal sentence, at the latest, by May 28, 2011. Thus, Stewart has failed to demonstrate that King's detention in the Patrick County Jail after May 28, 2011, flowed from his criminal civil commitment. that King was charge, While conviction, and Stewart's argument detained entirely 16 on sentence, and not a fails to establish criminal charges, nevertheless, as explained below, King failed to state a claim for relief against Stewart. Stewart's alternative argument is that King fails to allege facts that Stewart was personally involved in the deprivation of King's constitutional rights. that Stewart, housed in the the Stewart is correct. Commissioner Patrick of County DBHDS, Jail. However, action to remove him from the jail. allege in that the Stewart bears Patrick County any fall that King's Jail. Stewart knew of short that knowledge'" vague without no vague the and conclusion in the Patrick County 684 F.3d 435, See Walters v. McMahen, (holding took was his detention King's of permitting detention King King fails to responsibility for Instead, that Stewart (Compl. 3.) Jail. conclusory allegations "knew" King alleges 442 (4th Cir. 2012) allegation "factual that basis defendant to support had the "'actual statement" failed to render the allegation plausible under Igbal); Mayfield Nat'l Ass'n Stock Car Auto Racing, Cir. that 2012) is Corp. (explaining that a conclusory assertion of knowledge nothing standard-is v. Inc., 674 F.3d 369, 378 (4th more than precisely the Twombly, 550 "a mere recitation sort of allegations U.S. 544, 555 of that (2007)] the legal [Bell Atl. and Igbal rejected"). King's vague fail to "produce factual an allegations against inference of 17 liability Defendant Stewart strong enough to nudge to plaintiff's plausible.'" Inc., at the Nemet 591 F.3d 250, 683). Thus, participated in claims Chevrolet, 256 (4th Cir. King or 'across fails was aware King's constitutional rights. to the Ltd. 2009) allege of any line v. from conceivable Consumeraffairs.com, (quoting Igbal, that Stewart purported 556 U.S. personally deprivation Stewart's Motion to of Dismiss will be granted and Claim One will be dismissed.11 B. Defendant Miller In Claims performed 11 Five and Six, a psychiatric King mentions King faults evaluation of the Equal Dr. King Miller because he under section Protection Clause in 37.2- his Complaint, but provides no allegations to support this claim. While none of the defendants address King's vague equal protection claim, the Court reviews this claim pursuant to its obligations under 28 U.S.C. § 1915(e)(2). The Equal Protection Clause of the Fourteenth Amendment commands that similarly situated persons be treated alike. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). In order to state an Equal Protection Clause claim, King must allege: (1) "that he has been treated differently from others with whom he is similarly situated"; and, (2) that the differing treatment resulted from intentional discrimination. Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001) . King fails to allege any facts that indicate that the defendants discriminated against him or treated him differently than any other similarly situated inmate. To the extent King alleges a violation of equal protection, such claim will be summarily dismissed. King also makes a passing reference to Defendant Stewart's failure to file a "report ordered by the Court" on November 11, 2011. (Compl. 6.) However, King fails to allege how this vague, unsupported allegation pertains factually or temporally to the remainder of his claims alleging a purportedly illegal detention in the Patrick County Jail through September 19, 2011. 18 913(B)12 of the Virginia Code in the Patrick County Jail instead of in a "proper clinical setting." (Compl. 3.) King argues that Dr. Miller "an expert in the handling and care" of civilly committed SVPs, violated King's right to due process because he "knew that it was illegal to detain Mr. King in a jail/prison general population . . . but willfully allowed that violation of Mr. King's rights to continue." To the failure to extent that King suggests that Dr. Miller's alleged follow state law violated his King's claim lacks merit. Dr. Miller had personal place of detention or right to due involvement in the the location where section 37.2-913(B) that Miller's interview selection of King's he interviewed King. of the Virginia Code requires only take place in a "secure not a "proper clinical setting" as King suggests. Ann. § 37.2-913(B). process, King fails to adequately allege that Moreover, Dr. (Id. at 6.) The Patrick County Jail facility" See Va. Code is certainly a 12 Section 37.2-913(B) provides in relevant part: The respondent shall be transported to a secure facility specified by the Department where a person designated by the Department who is skilled in the diagnosis and risk knowledgeable about assessment of sex the treatment of offenders and sex offenders shall as soon as practicable, perform a mental health examination of the respondent, including a personal interview. Va. Code Ann. § 37.2-913(B). Contrary to King's assertion the statute contains no requirement that the interview take place in a "proper clinical setting." (Compl. 3.) 19 "secure facility." Claim Five lacks merit and will be dismissed. In Claim Six, King argues that Dr. "interrogated" King, but King "was not with any and, was denied (Compl. 3.) King wholly fails to allege how crime; attorney . . . ." read his rights Miller . . . was not charged consultation with an the Court-ordered psychological evaluation of King violated his rights to due dismissed. C. In process. Claim Six lacks merit and will be Dr. Miller's Motion to Dismiss will be granted. Patrick County Jail Defendants Claims Two, Three, and Four, King Patrick County Jail Defendants violated his Amendment rights. In response, the alleges that the Fifth and Fourteenth Patrick County Jail Defendants argue that King's claims are legally frivolous under Heck v. Humphrey, 512 violations of state law claim. 3.) U.S. (Patrick County Jail Nevertheless, the Two for failure to state a 1. Defs.' Court Mem. and alleged for a due process Supp. Mot. Dismiss 2- the Motion to Dismiss will be will summarily dismiss Claim claim. King contends that Captain Darryl Smith and Dan Smith violated his Fifth Amendment alleges that Fifth Amendment In Claim Two, Sheriff (1994) cannot be the basis For the reasons stated below, denied. Two 477 that Captain Darryl 20 Smith rights. "violated Mr. Claim King's rights when State Police jail's [Smith] and general Sheriff other he Dan made jail in under his with to how King from to detain Mr. 5.) King allowed and (2) then felons." conduct of or the King (Id.) Captain in the that negligently permitted King to be be Virginia claims and supervision to allowed Mr. convicted the Mr. (Compl. control (1) handcuffs; population allege decision "decided or King's rights when he his a population." Smith persons 'received' violate escorted into assigned into However, Darryl Mr. Smith general King and fails Sheriff Dan Smith in transporting King in handcuffs or detaining him in the general population of the Patrick County Jail implicates the Fifth Amendment.13 2. King improperly Accordingly, Claim Two will be dismissed. Fourteenth Amendment contends that detained in as the an SVP, Patrick a civil County committee, he Jail, general in was 13 At the beginning of King's Fifth Amendment section he contends that he had a "5th Amendment right to not be detained by authorities (1) without a warrant; or (2) without a Grand Jury Indictment." (Compl. 4.) King fails to allege that either Defendant Captain Darryl Smith or Defendant Sheriff Dan Smith had any personal involvement in ordering his arrest and detention. Instead, the record shows that, after King's arrest for a new felony charge, a magistrate ordered his detention in the Patrick County Jail. (See Stewart's Mem. Supp. Mot. Dismiss Ex. 3, at 1-2.) Moreover, the Fifth Amendment's "'requirement of a grand jury indictment is not applicable to the states.'" Robinson v. Stewart, No. 3:11CV63, 2012 WL 3151535, at *3 (E.D. Va. Aug. 2, 2012) (some internal quotation marks omitted) (quoting Bae v. Peters, 950 F.2d 469, 477-78 (7th Cir. 21 1991)). population, 19, 2011. between his arrest on July 8, 2010 through September In King's view, section § 37.2-909(A) of the Virginia Code required the Patrick County Jail Defendants to detain King either in the VCBR or "segregated by sight and sound at all times from prisoners in the custody of a correctional facility," Va. Code Ann. King in § 37.2-909 (A), compliance with King argues rights. also and that the failure to state law violated his that his assignment segregate due as process jail barber violated his due process rights because it placed him in contact with inmates. The extent Patrick King 'seeks incarceration frivolous related of such under his Defendants damages via 42 v. Supp. civil No. 3:11CV534, Mot. 1983 U.S. 512 detention Jail 2012 or 477 Dismiss continued civil Defendants frivolous However, WL under are correct, Heck. 2374016, King also at and See the improper is legally (1994) 2 and (citation *2-3 seeks money (E.D. damages he was in environment detention punitive rights. The and that Patrick 22 County detention, the King's claims McVey as a civil detainee, process "to from § argument that, a that stemming U.S.C. Humphrey, (Mem. argue To the extent that King seeks damages based on the legally 2012). money Heck Patrick County are Jail attempt cases.'" omitted).) fact County v. Runion, Va. Feb. 21, based on his improperly detained violated Defendants his have due not explained how his Heck bars detention should have in a been King's claims punitive detained as for monetary damages environment, a as committee civil if, at for alleged, the he relevant time. The Patrick violations of state process claim. the County 171, 181 cursory Ann. § law itself, 545 U.S. at (4th Cir. argument Defendants cannot Nevertheless, Constitution Wilkinson, Jail from 220-21; analysis 37.2-909(A) creates denied Three without and Four, prejudice for to state laws and that a due fail a to address protected policies. Fahey, Patrick County Jail Because the Patrick County Jail Claims basis see Burnette v. The and address the suggest a liberty interest may arise from or 2012) . provide also 687 F.3d Defendants' whether Va. liberty Code interest. Defendants failed to adequately their Motion raising the to Dismiss issue on will be summary judgment should they choose to do so on a thorough presentation of applicable law. V. FAILURE TO SERVE DEFENDANTS Pursuant to Federal Rule of Civil Procedure 4(m), King had one hundred and twenty (120) days complaint to serve the Defendants. on June 14, 2013. street address for from the filing of the Here, that period commenced The Court directed King to promptly provide a the Defendants 23 if he desired the Court's assistance in effecting service. King provided addresses for some defendants and by Memorandum Order entered October 2, 2013, the Court named directed defendants Marshal Taylor filed with and an the the Clerk for the unexecuted Court to on issue process Marshal return October to for 4, for effect service. Defendants 2013 and the certain The Sargent April 28, and 2014 indicating that these defendants no longer work at the addresses provided by King. (See ECF Nos. 27, 45. }14 to provide sufficient on the Unknown King has also failed identifying information to Defendant 1, a Trooper with the effect service Virginia State Police. By Memorandum Order entered May 8, King to show cause, within eleven (11) thereof, action prejudice why the against Defendant 1. should Defendants 2014, the Court ordered days of the date of entry not Sargent, be dismissed Taylor, and without Unknown King has responded. Rule 4 (m) requires that, absent a showing of good cause, the Court must dismiss without prejudice any complaint in which the plaintiff fails 120-day period. to serve Fed. R. Civ. the defendant within the allotted P. 4(m). Courts within the Fourth Circuit found good cause to extend the 120-day time period when the plaintiff has made "'reasonable, diligent efforts to effect 14 The Marshal sent King notice that he could not serve Defendants Sargent and Taylor at the addresses provided by King. 24 service on the 3:05cv821, defendant.'" 2007 WL Venable 5145334, at Dep't of Corr., (E.D. *1 v. Va. Feb. 7, (quoting Hammad v. Tate Access Floors, 528 (D. Md. As cause However, v. 24, for his Defendants, for his inability King first to effect failure detention does not Long, 31 F. Supp. 2007) 2d 524, 1999)). cause unserved Inc., No. No. 2012) 3:08CV100, (citations to provide faults his service. an address civil WL 214085, (ECF No. omitted). King at also *l-2 the detention 47, suffice to show good cause. 2012 for at the 1.) Sewraz (E.D.Va. makes as Jan. unsworn allegation that he has no access to the Internet "or any other means to locate "fled from the their defendants," former King's allegations fail diligent efforts to and claims employment." (ECF that No. Defendants 47, at 2.) to demonstrate that he made reasonable, effect service Taylor, or Unknown Defendant 1. on Defendants Sargent, Furthermore, nothing submitted by King gives this Court any indication that Defendants will be properly served any time in the future. at *3 (citations Defendants Sargent, omitted). Taylor, Sewraz, Accordingly, and dismissed without prejudice. 25 Unknown the 2012 WL 214085, claims Defendant 1 against will be VI. Stewart's Miller's Motion Patrick County be Motion denied to to Dismiss Dismiss Defendants' without CONCLUSION (ECF No. Motion prejudice. Taylor, and Unknown No. 23) to 30) will Dismiss Claims will be dismissed with prejudice. Sargent, (ECF One, be and Defendant granted. (ECF No. Two, 37) Five, and The will Six The claims against Defendants Defendant 1 will be dismissed without prejudice. The Clerk is directed to send a copy of the Memorandum Opinion to King and counsel of record. is/ {LLP Robert E. Payne Senior United States District Judge Richmond, Virginia Date: September Is', 2014 26
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