King v. Smith et al, No. 3:2012cv00012 - Document 53 (E.D. Va. 2014)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 12/16/14. Copy sent: Yes (tdai, )
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King v. Smith et al Doc. 53 E IN THE UNITED FOR THE STATES DISTRICT EASTERN DISTRICT B I g COURT DEC I7 2014 OF VIRGINIA Richmond Division CLERK, U.S. DISTRICT COURT RICHMOND, VA JOE EDMOND KING, Plaintiff, Civil Action No. V DAN SMITH, 3:12CV12 et al., Defendants. MEMORANDUM Joe Edmond King, a OPINION 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 the Motion Sheriff Dan Smith, Elbert Cassady, for Summary and Deputy Eddie Hancock, Barry forma pauperis, The matter is before the Judgment Captain Darryl Smith, Sgt. in Vipperman, Deputy Jason Handy, filed by Defendants Lt. Keith Bocock, Deputy Bobby Sgt. Johnson, Deputy Sara Thompson, 1 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 .... 42 U.S.C. § 1983 Dockets.Justia.com and Steve No. 50) Turner ("Patrick County Jail Defendants").2 (ECF Despite the provision of Roseboro notice,3 King has not responded. For the reasons set forth below, the Patrick County Jail Defendants' Motion for Summary Judgment will be granted. I. KING'S COMPLAINT In his Particularized Complaint the following allegations with ("Complaint")/4 King makes respect to the remaining5 defendants:6 (1) . Mr. the 2 The Joe King, Plaintiff herein, an ex-felon Commonwealth of Virginia, serving parole Court employs the spelling in in of Defendants' names provided in the Motion for Summary Judgment. 3 Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). 4 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 on April 24, 2012, the Court directed King to file a 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. 5 The Court previously dismissed Defendants No. 44) , Stewart, Miller, 1 (ECF No. 6 49) The Sargent, Taylor, Baliles (ECF and Unknown Defendant from the action. Court corrects the and spelling, and capitalization, spacing, removes punctuation, emphasis from quotations from King's complaint. The Court believes WSVP" in King's submissions is short for "Sexually Violent Predator." Because King's Complaint contains many omissions and alterations, alterations for or ease of omissions reference, in bold. alterations appear in the Complaint. the All Court other notes all added admissions and Virginia, et. seq. was prosecuted pursuant to § 37.2-900 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) :[7] Placement of committed respondents: ". . . any respondent committed pursuant to this Chapter shall be placed in the custody of the Department for control, care, and treatment ..." (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 . . . ." 7 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). 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 Court . . . , [instead of delivering the Circuit [him] to the "Department" or V.C.B.R. whose address is 4 901 Patrick Henry Hwy., Burkeville, VA]. 10) . The Custody Order issued by the magistrate at Ramona Baliles's request, commanded that Mr. King, ". . . shall be placed in the custody of the Department ..." (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 punitive environment Jail crime, was arrested of the and taken Patrick into 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 Mr. King Captain Darryl Smith, who is known to 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 facility be transported to a secure [hospital] specified by the Department where a person designated by the Department shall perform a mental health examination. See § 73.2-913 of 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, civil ". . . shall have an annual review of his commitment on November 1, 2011, at 9:00 a.m.; and, . . ." this due process right established by statute law . . . was completely ignored by the defendants herein. (21) . During the time Mr. King spent in the punitive environment of the Patrick County Jail he was told by Captain Darryl Smith he would be the "Jail Barber," and cut hair of 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 § 37-90 9 (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 11-1-2 011 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. 2 012. (Compl. at 1-4.) The Court generously construes King to raise the following remaining claims for relief: Claim Three: The Patrick King's County due process Jail Defendants violated rights8 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 violation of him contact with section 37.2-909(A) of inmates in the Virginia Code. For the reasons stated below, Claims Three and Four will be dismissed with prejudice. 8 "No State shall . . . deprive any person of life, liberty, or property, amend. XIV, without due process of § 1. law . . . ." U.S. Const, II. SUMMARY JUDGMENT STANDARD Summary judgment must be rendered "if the movant shows that there is movant Civ. no is P. genuine dispute entitled to 56(a). The as to judgment as party any a seeking material matter of summary fact and Fed. law." the R. judgment bears the responsibility to inform the court of the basis for the motion, and to identify the parts absence of v. of the a genuine issue of material fact. Catrett, 477 U.S. 317, 323 party will bear the burden of issue, a reliance record which demonstrate summary solely interrogatories, judgment on the See Celotex Corp. (1986). " [W] here proof at trial motion may pleadings, on a dispositive be depositions, in answers to at 324 the nonmoving party must go beyond the pleadings and, interrogatories, facts and showing that or on file,' is a genuine issue draw reviewing all party." 832, 835 Inc. , 477 a summary justifiable United States (4th Cir. U.S. 242, inferences v. 1992) 255 judgment in Carolina (citing (1986)). 7 the court the Transformer Co., However, v. a Id. (1986)). of Anderson to 'specific for trial.'" motion, favor properly answers designate (quoting former Fed. R. Civ. P. 56(c) and 56(e) In is "'depositions, admissions there motion (internal supported, affidavits the Id. made marks citing When nonmoving quotation by omitted). the properly and admissions on file." the nonmoving 978 Liberty mere "must F.2d Lobby, scintilla of evidence will not preclude summary judgment. at 251 442, (citing 448 judge, Improvement (1872)). Co. v. Munson, Anderson, 81 U.S. 477 U.S. (14 Wall.) " ' [T] here is a preliminary question for the not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for imposed.'" In the Id. party . . (quoting Munson, support of their Patrick County Defendants Mark Sowder Decl.," King's of ECF No. arrest . upon the at submit and detention for the County 1-4) the onus of proof is 81 U.S. at 448). Motion Patrick 51-1, whom Summary Judgment, Declaration of Sheriff's the Lieutenant Office ("Sowder and several records pertaining to from King's Inmate file 1-6, ECF No. with the Patrick County Jail (Sowder Decl. Exs. Record on 51- 1, at 4-9.). As a general rule, a non-movant must respond to a motion for summary judgment with affidavits or other verified evidence. Celotex Corp. , 477 U.S. at 324. Motion for Summary Judgment. King King's did not respond to the failure to respond to the Motion for Summary Judgment permits the Court to rely solely on the submissions of the Patrick County Defendants in deciding the Motion for Summary Judgment. 153 7 (5th Cir. 19 94) See Forsyth v. Barr, ("'Rule district court a duty to sift 56 does not 19 F.3d 1527, impose upon the through the record in search of evidence to support a party's opposition to summary judgment.'" 8 (quoting Skotak v. Tenneco Resins, (5th Cir. 1992))); see Fed. Inc., 953 F.2d 909, 915 & n.7 R. Civ. P. 56(c)(3) consider only the cited materials . . . ."). determining a motion for summary judgment, that facts material in the identified by the facts are admitted, statement of motion." E.D. Va. genuine Loc. moving issues Civ. R. Furthermore, "[i]n the Court may assume party unless such a ("The court need in its fact is listing of controverted filed in opposition to the 56(B). Additionally, King's Particularized Complaint fails to constitute admissible evidence because King did not swear to under penalty of perjury. 291, 300 (4th Cir. In light of the contents of See United States v. his submissions White, 366 F.3d 2004). the following facts are foregoing principles and submissions, established for the purposes for Summary Judgment. All permissible of inferences the the Motion are drawn in favor of King. III. On July 20, 1993, SUMMARY OF FACTS9 the Circuit Court for Patrick County ("Circuit Court") convicted King of rape and entering a dwelling house with the To intention to commit a rape and sentenced him to provide convictions, the from the public a full procedural history of Court includes as facts information record and records that Defendant King's available James W. Stewart, III attached to his Memorandum in Support of Motion to Dismiss. (ECF No. 31.) twenty-five years Nos. of CR92009665-00 1993) .10 incarceration. and CR92009667-00 On November 24, be an SVP, See (Va. release, involuntary secure pursuant the to the less impatient Sexually restrictive treatment Violent July (Va. November Cir. Ct. accepted entered the conditional restrictions on incarceration to King's the 24, 20, release, supervision of 08-196, The plan, and Virginia No. 2 009) . added Court further King County Code at 1-6 Circuit released Patrick to hospitalization Act, King, release alternative and Predator Commonwealth v. A. Ct. 2009, the Circuit Court found King to section 37.900 et seq. at Cir. King, but nonetheless determined that King was suitable for conditional Id. Commonwealth v. from probation. 2-6. New Criminal Charge and Conviction On 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 18.2-37 0.5 of the Virginia Code.11 10 See http://www.courts.state.va.us 2010, a felony under (See Stewart's Mem. (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"). 11 "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 10 Supp. Mot. Dismiss Ex. 2010, the Circuit 2, at 1-2, Court pending felony charge, ECF No. 31-2.) On August 25, issued a Disposition Notice for King's and ordered the Sheriff, Jail Officer, or Correctional Officer to confine King in their facility pending a November 15, 2010 hearing on the criminal charges. (Sowder Decl. f 4; icL Ex. 1, at 1.) On November 15, Continued Custody, or Correctional January 20, 2 010, and directed that the Sheriff, Officer 2011 the Circuit Court issued an Order for to hearing hold date King on the in Jail Officer, custody felony pending charge. the (Sowder Decl. f 5; id. Ex. 2, at 1.) On January 20, for Continued Jail Custody, Officer, pending the 2011, or the Circuit Court issued another Order and further Correctional hearing date directed Officer that hold on February 28, the King 2011. Sheriff, in custody (Sowder Decl. H 6; id. Ex. 3, at 1.) The Circuit Court found King guilty of entering school property after having been adjudged a sexually violent offender, and on February 28, two years and six 2011, the Circuit months of imprisonment Virginia Department of Corrections three months of of day incarceration center property three . . months. . ." Va. (West 2014). 11 sentenced King in the custody to of ("VDOC"), with two years and the sentence suspended, of Court leaving an active term Commonwealth v. Code 18.2-3 70.5 (A) Ann. § King, No. CR10019122-00, at 1-2 (Va. Cir. Ct. Feb. 28, 2011). The Court entered a disposition notice directing the Sheriff, Jail Officer or Correctional Officer to confine King in their facility due to his conviction. On (Sowder Decl. f 7; id. Ex. 4, at 1.) March sentence, 8, 2011, while King parole. % 8; (Sowder Decl. commanded the Sheriff to id. #1 at 1.) and #6 Ex. 5, hold King in action of the Virginia Parole Board. Virginia serving his criminal the Virginia Parole Board issued a Warrant for King's detention for violating Conditions 5, was of at his 1.) supervised The Warrant jail subject to further (Sowder Decl. H 8; id. Ex. The March 17, 2011 "Arresting Officer's Return to the Parole Board" and "Certificate of Jailor" both note King's incarceration at the Patrick County Jail as of that date. (Sowder Decl. % 9, id. Ex. 6, at 1.) On that September 16, 2011, the Virginia King could be processed for release the custody of the VCBR on September 19, Supp. Mot. Dismiss Ex. "cancel[led] the parole violation." 6, [Order] (Id.) VCBR on September 19, 2011. B. While at 1.) holding Parole Board ordered from incarceration to 2011. (Stewart's Mem. The Parole Board Action also the subject King moved into in custody for the custody of the (Compl. 3.) Conditional Release Violation Proceedings the Patrick County Jail held King charge and conviction from June 22, 2010 through his 12 on his criminal return to the VCBR on September 19, 2 011, the Circuit Court also conducted proceedings on King's violations of the terms of his conditional release from civil Patrick County detention magistrate as an issued SVP. an On July Emergency 9, 2010, Custody a Order based upon a petition filed by King's probation officer, Ramona Baliles, of stating conditional that release, school hours King had including violated entering several property during (See Stewart's Mem. Supp. Mot. Dismiss Ex. 3, at 1-2.) 2010, King remained in the Patrick County Jail criminal charge. commanded that (See id. at 1.) the As of July 9, for the pending The Emergency Custody Order "ANY AUTHORIZED OFFICER" and transport him to take King into custody Patrick County Jail where remain in custody pending hearing in Circuit Court." On November 1, 2010, No. CL-08-196, at King "must (Id.) King appeared in the Circuit Court for his conditional release violation hearing. King, his school-related activity. or during hours of school terms 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 designated by suitable at "be committed to treatment the conditional Id. release. for 1, 2010, . . . King was 13 The Circuit custody of and confinement Commissioner hearing on November the 2. release, ." in a Id. the secure and Court [DBHDS] facility Following returned to the the Patrick County Jail Mem. Supp. because of the pending felony charge. Mot. Dismiss 3; see id. Ex. 2, at 1). (Stewart's King finished his criminal sentence and moved into the custody of the VCBR on September 19, 2 011. (Compl. 3.) IV. In Claim Three, King ANALYSIS argues that the Patrick County Jail Defendants violated King's due process rights by housing King in general population of the Patrick County Jail and failing to transfer King from the Patrick County Jail to the custody of the VCBR despite his repeated complaints. SVP, a civil committee, Patrick County Jail, on July 8, 2010 Jail was improperly in general population, through September section § 37.2-909(A) County he King contends that as an of Defendants "segregated by sight 19, and that In the arrest King's view, the Virginia Code required the Patrick to and the in between his 2011. detain sound at King all either times the custody of a correctional facility," 909(A), detained failure to Va. segregate in the VCBR or from prisoners in Code Ann. King with state law violated his due process rights. in § 37.2- compliance In Claim Four, King similarly argues that his assignment as jail barber during his purported civil detention violated his due process rights government action because it placed him in contact with inmates. The deprives Due an Process Clause individual of a applies when legitimate 14 liberty or property interest. 564, See Bd. 569-70 of Regents of State Colls, (1972). Thus, the first v. step Roth, in 408 U.S. analyzing a procedural due process claim is to identify whether the alleged conduct affects Beverati v. omitted). itself, a Smith, A protected 120 liberty liberty F.3d 500, interest 502 or (4th Cir. may arise from or from state laws and policies. 545 U.S. 209, 220-21 (2005) property interest. 1997) the (citations Constitution Wilkinson v. Austin, (citations omitted). King fails to demonstrate that he had a legitimate liberty interest in being population of new felony detained somewhere King crime, charge alleges [and] environment on June 22, that was of he and the VCBR on September 19, 2011. Patrick and law and taken County misstates his for a from into Jail" discussed, King omits reference to his concurrent proceedings or his lawful violation general release "violated no arrested the 2010 previously any than the Patrick County Jail between his arrest incarceration to the custody of While other the committed no the punitive (Compl. truth. as King wholly and parole criminal detention 2), in the Patrick County Jail for that felony charge and conviction. The Patrick County Defendants have established that at all times relevant Patrick and to County Jail violations of the for his Complaint, a King new criminal parole, 15 not was charge as a detained and civil in the conviction, detainee. Accordingly, the Patrick County Jail barber Cf. King fails to demonstrate that his incarceration in in general or any assignment population violated his Baker v. McCollan, 443 U.S. 137, to serve due 145-46 as process (1979) a jail rights. (finding no due process violation for detaining defendant in jail after his arrest "[g]iven the requirements and that Meachum v. Fano, probable trial"); that cause one that detained 427 U.S. "given a valid conviction, 215, arrest be 224 be made accorded (1976) only a on speedy (explaining the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him .... in any of its prisons") . Accordingly, Claims Three and Four will be dismissed. V. CONCLUSION The Patrick County Defendants' (ECF No. 50) will be granted. Motion for Summary Judgment King's claims and the action will be dismissed. The Clerk is directed to send a copy of the Memorandum Opinion to King and counsel of record. m A^ Robert E. Payne Senior United States District Judge Richmond, Virginia Date' /w^J^cViI7 It?/* 16
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