Strouse v. Bureau of Prisons et al, No. 3:2013cv00044 - Document 64 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 4/21/15. Copy sent: Yes(tdai, )
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Strouse v. Bureau of Prisons et al Doc. 64 F IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division 1 I 2 I 2015 I CLERK, U.S. DISTRICT COURT RICHMOND, VA JAMES STROUSE, Plaintiff, Civil Action No. v. BUREAU OF PRISONS, 3:13CV44 et al., Defendants. MEMORANDUM OPINION James Federal action Strouse, Correctional under evaluation 8(a), a federal Center Bivens.1 pursuant reasons set forth below, except formerly Petersburg matter Federal 20(a),2 and 28 U.S.C. parties in The to inmate Rule is Defendant Civil §§ 1915(e)(2) the Court will, ("FCC") before of housed at filed the this Court Procedure and 1915A. inter alia, the for Rule For the dismiss all Blackburn as improperly joined, and 1 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 2 That rule provides, in relevant part: (2) Defendants. Persons . . . may be joined in one action as defendants if: (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, occurrences; (B) any or and question series of law of or transactions fact common to or all defendants will arise in the action. Fed. R. Civ. P. 20(a). Dockets.Justia.com dismiss state a the claims against Defendant Blackburn for failure to claim. I. PRELIMINARY REVIEW Pursuant to the Prison Litigation Reform Act ("PLRA") this Court must dismiss any action filed by a prisoner if the Court determines the action a claim on 1915(e)(2); which (1) wis frivolous" or relief see 28 U.S.C. may be § 1915A. (2) "fails to state granted." 28 U.S.C. § The first standard includes claims based upon tt,an indisputably meritless legal theory,'" or claims where the "'factual contentions are clearly baseless.'" Clay v. Yates, Neitzke v. Williams, standard is Fed. R. the Civ. "A Supp. 490 familiar U.S. of to a dismiss complaint; surrounding the F.2d 427 319, (E.D. 327 standard for a 943, 952 (4th under Va. 1992) (1989)). (quoting The second motion to dismiss under Rule 12(b)(6) importantly, facts, applicability of defenses." 980 417, P. 12(b)(6). motion sufficiency contests 809 F. the it merits does of a tests not claim, the resolve or the Republican Party of N.C. v. Martin, Cir. 1992) (citation omitted). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are complaint plaintiff. is viewed in the light taken as most true and the favorable to the Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952. applies only to factual considering a identifying pleadings conclusions, motion are Ashcroft v. Iqbal, allegations, to dismiss that, not entitled to however, can because This principle choose they the and "a to are court begin no more assumption of by than truth." 556 U.S. 662, 679 (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, (second alteration in original) U.S. 41, 47 (1957)). with complaints "formulaic Id. level," (quoting Conley v. containing only recitation of the "labels and 555 (2007) Gibson, elements of conclusions" a cause (citation of pleads or a action." omitted), stating a the speculative claim that "plausible on its face," rather than merely "conceivable." at 570. 355 Instead, a plaintiff must allege facts "to raise a right to relief above id. 544, Plaintiffs cannot satisfy this standard (citation omitted). sufficient 550 U.S. is Id. "A claim has facial plausibility when the plaintiff factual reasonable content inference misconduct alleged." that that the Iqbal, Corp. , 550 U.S. at 556) . allows the defendant court is 556 U.S. at 678 to liable draw the for the (citing Bell Atl. In order for a claim or complaint to survive dismissal for failure to state a claim, must or] the plaintiff "allege facts sufficient to state all the elements of her claim." [his Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 270, 281 (4th Cir. construes 1151 sua (4th Cir. 2002); pro (4th Cir. sponte se 2002)). Lastly, complaints, 1978), lodice v. United States, Gordon 289 F.3d while the Court liberally v. Leeke, 574 F.2d 1147, it does not act as the inmate's advocate, 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) concurring); (4th Cir. Beaudett v. City of 775 F.2d 1274, 1278 1985). II. The Hampton, (Luttig, J., Federal plaintiff's pleading. Rules ability to See Fed. occurrence test' of R. of JOINDER Civil Procedure join multiple Civ. P. [Rule 20] place defendants 20(a). "The limits in a on single 'transaction . . . 'permit [s] a or all reasonably related claims for relief by or against different parties to be tried in a single proceeding. is unnecessary.'" Cir. 1983) 1333 (8th Saval v. BL Absolute identity of all events Ltd., 710 F.2d 1027, 1031 (4th (quoting Mosley v. Gen. Motors Corp., 497 F.2d 1330, Cir. 1974)). "But, Rule 20 does not authorize a plaintiff to add claims 'against different parties [that] present! ] entirely different factual and legal issues.'" v. Bayer Pharm. Corp., (alterations No. in original) 7:03cv00395, 2007)). the "And, addition objectives 548 F. Supp. 2007 WL of of delay.'" Inc., the impulse Id. action claims, addressing is (quoting 3069660, party under [promoting 485 F.3d 206, In at (E.D. Va. 2008) Lovelace *1 Rule (W.D. consistent parties of v. Va. Lee, Oct. Aleman 218 n.5 (4th Cir. joinder, with the not and v. 21, foster is Gibbs, the expense, Support Servs., 2007)). is mindful broadest to the U.S. that possible parties; strongly 383 the expediting Chugach Court fairness and remedies v. will but will result in prejudice, (quoting Am. 20 convenience toward entertaining the Mine Workers 218 a court may 'deny joinder if it determines that resolution of disputes], or 2d 208, Sykes scope of joinder of encouraged." 715, 724 "the United (1966). This impulse, however, does not provide a plaintiff free license to join multiple defendants into a single lawsuit where the claims against Smith, 130 the defendants 507 F.3d 605, F.3d 1348, 1350 are 607 unrelated. See, (7th Cir. 2007); (9th Cir. 1997). e.g., George v. Coughlin v. Rogers, Thus, "[a] buckshot complaint that would be rejected if filed by a free person—say, a suit complaining that A defrauded the plaintiff, B defamed him, C punched him, D failed to pay a debt, and E infringed his copyright, all in different transactions-should be rejected if filed by a prisoner." "The Court's Reform Act 20(a)." (E.D. George, 507 F.3d at 607. obligations ("PLRA")] include under review the for [Prison compliance Litigation with Rule Coles v. McNeely, No. 3:11CV130, 2011 WL 3703117, at *3 Va. "Thus, Aug 23, multiple 2011) claims (citing against a George, single 507 party F.3d at are 607). fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims against different defendants belong in different suits, not only to prevent the sort of morass that these complaints have produced but also to ensure (citing that pay prisoners 28 U.S.C. No. 7:08cv00276, the § required 1915(g)); 2009 WL 1321694, filing Showalter fees." v. Id. Johnson, at *4 (W.D. Va. May 12, 2009) ("To allow [plaintiff] to pay one filing fee yet join disparate claims of against dozens parties flies in fails to the face off the with the letter and spirit of the PLRA." ) As dicussed below, Strouse comply requirements for proper joinder in his Particularized Complaint. II. A. IMPROPERLY JOINED CLAIMS Procedural History Strouse's original complaint failed to provide each defendant with fair notice of the facts and legal basis upon which his or her liability rested. Order entered on February 18, to file a neither and 2014, particularized Strouse Subsequently, basis the by Memorandum Court directed Strouse complaint. (ECF No. 21.) submitted a Particularized Complaint that provided each defendant legal Therefore, upon which with his or her comported with joinder requirements. by Memorandum Order entered April fair notice of liability (ECF No. 27.) 18, 2014, the facts rested, nor Accordingly, the Court directed Strouse to file a second particularized complaint that corrected such deficiencies. On June Complaint. 26, 2014, (ECF No. Strouse 48.) filed Strouse's his Particularized Particularized Complaint again fails to comply with the joinder requirements and fails to provide each defendant with fair notice of the facts legal basis upon which his or her liability rests. the Court will drop all parties from the action, and the Accordingly, except for the first named party in the body of the Particularized Complaint, Defendant Blackburn. No. 3:08CV820, (Part. 2011 WL Compl. 1827440, at 2) ; see *3 Loney v. (E.D. Va. Wilder, May 12, 2011) (employing a similar procedure); Jackson v. Qlsen, No. 3:09cv43, 2010 WL 724023, at remedies available Fed. R. Civ. P. 8(a) *3 (E.D. Va. for misjoinder and 41(b)). Mar. 1, 2010) and failure (describing to comply with B. Summary Of Allegations And Claims The Particularized Complaint names seven defendants3 and is a rambling, nearly incomprehensible list of purported misdeeds that occurred between 2012 and 2014. Strouse's ranging Particularized from Defendants' (See Part. Compl. 1-11.) Complaint purported consists of interference and email, retaliating and conspiring against searching his cell, sanctioning Strouse, Rights Violated" filing "false" with his mail against Strouse, disciplinary in no discernable order. section, allegations reports, Under his and "Civil Strouse then lists each constitutional amendment he believes the Defendants violated, but then provides rambling paragraphs of various disparate acts committed by each Defendant, mixed with citations to Strouse's prior cases with this Court. case law, memoranda, and (See, e.g., id. 12-14.)4 Strouse's claims wholly defy joinder requirements. At most, his claims amount to a list of disparate acts committed by different Defendants on a variety of dates. Moreover, Strouse wholly fails to concisely explain how each Defendant's conduct violated his constitutional rights. 3 Strouse names the following individuals as defendants ("Defendants"): Warden E.D. Wilson; Unit Manager Kevin Kiddy; Counselor Blackburn; SIA Negron; SIS Bernando; DHO Bennet; and, Trust Fund Supervisor Whitley. 4 The Court corrects the capitalization, punctuation, and spacing in the quotations to Strouse's submissions. For example, defendants emails. Strouse impeding (Part. his Compl. cell searches by sia, that begins legal 1-2.) and complaining special Strouse sis." (Id. "prison staff member(s) cause by about mail then and states at 2.) Next, unnamed blocking "retaliatory Strouse argues conspired to commit conspiracy to injury to Strouse by filing frivolous incident reports," which resulted in sanctions and placement in the special housing unit. (Id.) Strouse next claims that Defendant Blackburn refused to "dismiss and expunge the code #3 05 incident report." (Id.) Strouse then backtracks and explains that Defendant Wilson and Defendant Trust Fund Supervisor Whitley and Defendant SIS Bernando impeded email or legal mail. argues to (Id. at 3-4.) Defendant DHO Bennet Strouse refused or that "sanction[ed] SIS Bernando remedy Strouse's blocked Strouse next complains that Strouse." read (Id. at 4.) Strouse's mail mother in which he called SIS Bernando "an asshole, Later to his bastard, and other sorts of names" and SIS Bernando wrote an incident report on Strouse. (Id. at 6.) The remainder of the Particularized Complaint cycles back through a similarly terse and disparate list of complaints stemming from Strouse's incarceration in FCI Petersburg between 2012 and 2014. Strouse also insists that all of the involved in a conspiracy to deprive him of Defendants his were constitutional rights and violated a variety of his constitutional rights. (See, e.g., id. at 20-21, 25, 30.) C. Dismissal Of Improperly Joined Claims And Parties It is apparent that Strouse has submitted the sort "mishmash of a complaint" that the rules governing the joinder of parties aim to prevent. (7th Cir. George v. Smith, 507 F.3d 605, 607 2007). Although Strouse alleges that a conspiracy exists among all the Defendants, conspiracy to Strouse has not stated any plausible claim of a deprive Strouse of his civil rights. Because Strouse's allegation of a conspiracy "amounts to no more than a legal conclusion, claim." 2009) 1992)); 184-85 v. its v. Francis (citing Gooden on Giacomelli, Ashcroft Howard v. Cnty. , see Capogrosso v. (3d Cir. 2009) face it fails 588 Iqbal, Md. , 954 assert F.3d 556 F.2d 186, U.S. 960, a plausible 197 662, (4th 679 969-70 Supreme Court of N.J., 588 Cir. (2009); (4th Cir. F.3d 180, (dismissing conclusory allegations conspiracy) (citing Crabtree v. Muchmore, (10th Cir. to 904 F.2d 1475, of a 1480-81 1990)). In order to satisfy his pleading burden with respect to a conspiracy, Strouse "needed to 'reasonably lead to the inference plead that facts [Defendants] that would positively or tacitly came to a mutual understanding to try to accomplish a common and unlawful plan.'" Ruttenberg v. 10 Jones, 283 F. App'x 121, 132 (4th Cir. 2008) 81 F.3d 416, allegation 421 that constitutional (quoting Hinkle v. City of Clarksburg, (4th Cir. the 1996)). [D]efendants rights" is "[T]he bare, conspired insufficient. to conclusory violate Id. his Accordingly, Strouse's broad claims of an overarching conspiracy (see, e.g. , Part. Compl. 20), which encompasses all of the named Defendants, will be dismissed without prejudice. Absent a plausible claim of conspiracy, Strouse has failed to articulate a common question of law and fact for all of the named Defendants. Strouse's See Fed. Particularized R. Civ. P. Complaint 20(a). consists narrative of a host of perceived offenses, and incomprehensible, first defendant Court named in the Defendant Defendants Blackburn. Accordingly, Strouse's Blackburn. as body the claims Court except See id. or of the with the Particularized Because of the incomprehensible they See occurrence, its analysis and disparate nature of Strouse's claims, other rambling Id. will begin Complaint, Counselor Blackburn. all a that it simply fails to allege causes of series of transactions or occurrences." the of and is so incohesive actions that arise "out of the same transaction, Accordingly, Furthermore, are Jackson, dismisses for his at *8 n.7 11 not the Court must drop properly 2010 without claims WL joined 724023, prejudice against (explaining that, at all with *8. of Defendant in light of Virginia's tolling provision, dismissal without prejudice of the plaintiff's constitutional claims failed to create problems with respect to the statute of limitations) . refile these dismissed claims, with Rules 8(a) Moreover, claims and 20(a). Defendant wherein Accordingly, but any new complaint must comply because Strouse fails to adequately set forth his against sentence Strouse remains free to Blackburn, Strouse Strouse seeks the mentions damages Court addresses Defendant against any Blackburn. Defendant Blackburn based on the following allegations: Claim I: First Amendment:5 "Counselor Blackburn sanctioned Strouse['s] emails, commissary, and phone privileges for possession of UCC." (Part. Claim IV: Coml. Eighth 12.) Amendment:6 Defendant Blackburn "conspired to commit conspiracy to cause harm to Strouse by imposing illegal sanction(s) by possession of UCC conspired to get Strouse locked up [in the] SHU [and] property refused after the dismissed . . . ." Claim V: Ninth to to incident (Id. Amendment:7 "conspired return Strouse's report Defendant commit was at 2 0.) Blackburn conspiracy towards 5 "Congress shall make no law . . . abridging the freedom of speech . . . ." U.S. Const, amend. I. 6 "Excessive bail shall not be required, nor excessive fines imposed, Const, nor amend. cruel and unusual punishments inflicted." U.S. VIII. 7 "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." U.S. Const. amend. IX. 12 Strouse" by "sanction[ing] Strouse to dho for violation of possession of UCC . . . ." (Id. Claim VI: at 21.) Fifth Amendment:8 Defendant "conspired ... to unlawful due process "referred Strouse Blackburn cause injury on Strouse" to be sanctioned and and for possession of UCC," "the incident report was dismissed and expunged," (id. at 25) but "refused to property." IV. A. return Strouse's confiscated (Id. at 26.) ANALYSIS First Amendment Although incarcerated, a prisoner still "retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the the corrections (1974). A legitimate penological objectives of system." prison Pell regulation v. Procunier, impinging 417 on an U.S. 822 inmates' constitutional right to free speech is valid if it is reasonably related to legitimate penological interests. 482 U.S. 401, 78, 415 purpose 89 (1989) (1987); see also Thornburgh v. (prison "central to Turner v. Safley, security is a all other Abbott, legitimate corrections 490 U.S. governmental goals"). Factors relevant in determining reasonableness of a regulation include 8 In Claim VI, Strouse alleges that Defendant Blackburn violated his Fourteenth Amendment right to due process. Because Strouse is a federal inmate the Court construes Strouse to raise a Fifth provides: or Amendment property, amend. due process claim. The Fifth Amendment "No person shall be . . . deprived of life, liberty, without due process V. 13 of law. . . ." U.S. Const, (1) the neutral connection between regulation purpose; government the (2) the means of exercising the right; the right would resources; and, (4) the regulation. Turner, factors, court the officials." 1991) . 482 must prisoner analysis regulation absence U.S. at to at issue. the Overton v. In prison 925 F.2d 83, of validity Bazzetta, to weighing determinations burden the and alternatives 89-91. the disprove alternative inmates, ready Stotts, carries legitimate, of existence other of "respect a the impact accommodation of guards, United States v. The Turner on have (3) and of 86 539 these prison (4th Cir. proof of the under the U.S. the prison 126, 132 (2003). The Federal complaint Rules contain "a of Civil short and Procedure plain require statement of showing that the pleader is entitled to relief." P. 8(a)(2). complaints, 1978), While Gordon not 775 F.2d attempt "to plaintiff." 2006) . v. "[p]rinciples complaints are not Hampton, courts should Leeke, 574 liberally F.2d requiring generous 1147, 1278 discern Laber v. Harvey, (4th the Cir. the Fed. construe 1151 of course, pro (4th unexpressed The Court intent 413 n. 3 The Fourth Circuit has explained that "though litigants cannot, R. Civ. se Cir. se Beaudett v. City of 1985) . 438 F.3d 404, a claim construction of pro . . . without limits." 1274, that of need the (4th Cir. [pro se] be expected to frame legal issues 14 with the clarity and precision ideally evident in the work of those trained in law, neither can district courts be required to conjure up and decide issues never fairly presented to them." Beaudett, 775 F.2d 1274, 1276. judges are not mind readers." In Claim I, Strouse In other words, "[d]istrict Id. at 1278. states, in sum, that Defendant Blackburn violated his First Amendment rights by "sanction[ing] Strouse['s] emails, commissary, possession of UCC." (Part. name and throughout is scattered Particularized Complaint, phone Compl. 12.) but the even privileges for Defendant Blackburn's nearly cobbled incomprehensible together, Strouse fails to coherently allege facts sufficient to demonstrate that Defendant Blackburn violated his First Amendment rights. the Court finds it inappropriate to allow this claim Thus, to go forward and require a defendant to extract a coherent claim from this "mishmash of a complaint." 607 (7th Cir. 1997). current form, construction George v. Smith, 507 F.3d 605, Strouse's Particularized Complaint, in its wholly fails requirements to afforded meet to even pro the se generous pleadings. Accordingly, Claim I will be dismissed without prejudice. The Court advises Strouse, to raise First a claim Amendment alleging rights by that to the extent that he seeks that Defendants refusing 15 to have allow violated him to his possess certain legal materials, such as UCC documents, to state a viable claim. Nevertheless, he has not done so here. If Strouse choses to refile, his First Amendment regurgitate claim. nonsense encompasses so wrongdoing, that that many the he should limit his efforts on Strouse is or a may not lacking so individual Court he may be able in instances defendant continue to clarity of and purported cannot discern a viable constitutional claim. B. Eighth Amendment To make out an Eighth allege facts that indicate Amendment (1) subjectively the 'sufficiently culpable 145 F.3d 164, 167 U.S. 294, must allege facts of was 298 extreme discomfort'" that officials of mind.'" (4th Cir. 1998) (1991)). that and is inmate 'sufficiently serious,' prison state an acted Waters, Hudson v. Johnson v. a Quinones, (quoting Wilson v. Seiter, Under the objective prong, 501 the inmate suggest that the deprivation complained amounted "'part 989 F.2d 1375, McMillian, and (2) with to of more the than penalty the that offenders pay for their offenses against society.'" v. must that objectively the deprivation suffered or harm inflicted "was that claim, 503 1380 n.3 U.S. 1, 9 (4th Cir. 1993) (1992)). "In demonstrate such an extreme deprivation, "'routine criminal Strickler (quoting order to a prisoner must allege 'a serious or significant physical or emotional injury resulting 16 from the challenged F.3d 630, 634 conditions.'" (4th Cir. 2003) De'Lonta v. Angelone, (quoting Strickler, 330 989 F.2d at 1381). The subjective requires the particular prong of plaintiff defendant a to deliberate allege actually indifference facts knew of that a disregarded and indicate a substantial risk of serious harm to his person. Brennan, 511 U.S. 825, 837 (1994) . claim See Farmer v. "Deliberate indifference is a very high standard—a showing of mere negligence will not meet it." Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999) Estelle v. Gamble, 429 U.S. 97, 105-06 (citing (1976)). [A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions unless the official knows an excessive safety; facts the risk official from harm which that drawn to a and he health both be risk must also or aware inference substantial exists, confinement of and disregards inmate must the of could of of be serious draw the inference. Farmer, 511 U.S. at 837. Farmer teaches "that general knowledge of facts creating a substantial risk of harm is not enough. prison official general facts inmate." 837); see (stating must also draw and the specific Quinones, Rich same). v. the inference between The those risk of harm confronting the 145 F.3d at 168 (citing Farmer, 511 U.S. at Bruce, Thus, to 129 F.3d survive 17 336, a 338 motion (4th Cir. to dismiss, 1997) the deliberate indifference standard requires a plaintiff to assert facts sufficient to form an inference that "the official in question subjectively recognized a substantial risk of harm" and "that the official in question subjectively recognized that his actions were 'inappropriate in light of that risk.'" rel. Lee v. Cleveland, 372 F.3d 294, 303 Parrish ex (4th Cir. 2004) (quoting Rich, 129 F.3d at 340 n.2). In Claim IV, Strouse contends that Defendant Blackburn "conspired to commit conspiracy to cause harm to Strouse imposing illegal sanction(s) by possession of by UCC conspired to get Strouse locked up [in the] SHU [and] refused to return Strouse's dismissed property . . . ." (Id. after the at 20.) incident Strouse report wholly was fails to explain how Defendant Blackburn's conduct implicates the Eighth Amendment, injury. much less caused Strouse a serious or significant Accordingly, Claim IV will be dismissed. C. Ninth Amendment The Ninth Amendment provides that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." IX. In violated Claim the V, Ninth Strouse alleges Amendment when that he U.S. Const, amend. Defendant "conspired Blackburn to commit conspiracy towards Strouse" by "sanction[ing] Strouse to DHO for violation of possession of UCC 18 . . . ." (id. at 21.) As previously plead explained facts that in Part plausibly III.C, suggest supra, Strouse that a conspiracy Strouse also states that Defendant Blackburn 9th. Amendment Strouse § neither 241. conspiracy explains, nor the to exists. "violated Strouse's against does fails rights." Court (Id.) discern Defendant Blackburn violated the Ninth Amendment. how, Claim IV will be dismissed. D. Fifth Amendment To state a claim under Bivens, the plaintiff must show that a defendant, acting under color of federal law, deprived him of a constitutionally protected interest. 525 F.3d 341, 350 (4th Cir. Middlebrooks v. Leavitt, 2008). The Due Process Clause applies only when government action deprives an individual of a legitimate liberty or property interest. Bd. of State Colls, v. Roth, 408 U.S. 564, 569 (1972) . in analyzing a procedural whether alleged the Beverati v. Smith, due conduct process affects 120 F.3d 500, 502 claim a Regents The first step is to identify protected (4th Cir. 1997) interest. (citing cases). In Claim VI, Strouse argues that on 10 July 2012, Unit Team Counselor Blackburn conspired with the said defendant(s) to cause injury and unlawful due process onto Strouse, on July 10, 2 012 Counselor Blackburn referred Strouse to be sanctioned for possession of UCC by DHO Bennet at 11:05 am hours, Strouse complained to post Unit Mgr. Carter that the incident report 19 was to be of dismissed because it was passed 5 work days, Counselor Blackburn summoned Strouse to unit team and stated to Strouse that the incident report was dismissed and expunged, Counselor Blackburn told Strouse to return the incident report copy 'Strouse's Copy', Strouse denied, Strouse's cell was subjecte to cell search, and more searches to follow, but Strouse hidden the incident report, and copies and mailed to this court .... (Part. Compl. 25.) While not entirely clear, it appears that Strouse alleges that he refused to return the incident report to Defendant later Blackburn and hid alleges that it from officials Defendant Blackburn Strouse's confiscated property." Strouse's indicate (see "refused rambling and contradictory allegations that Defendant claims disciplinary to Blackburn's Defendant hearing, Blackburn Strouse return (Id. at 26.) actions also referred states fails resulted deprivation of any liberty or property interest. Strouse id.) , but the To the extent Strouse that "incident report was dismissed and expunged." in to the (id.) for a alleged Moreover, Strouse's allegations that Defendant Blackburn "told Strouse to return the incident report copy," and Strouse refused to do so and hid a copy, later statement (id. at 25), cannot be reconciled with Strouse's that Counselor Strouse's confiscated property." fails to allege facts that Blackburn (Id. at 26.) plausibly 20 to return As such, Strouse suggest Blackburn violated his right to due process. dismissed. "refused that Defendant Claim VI will be V. The claims Claims IV, against Bennet, Bernardo, with and Whitley are dismissed without prejudice. Defendants Wilson, Kiddy, Negron, V, and VI against Defendant Blackburn are dismissed prejudice. Claim dismissed without prejudice. The CONCLUSION I against Defendant Blackburn is The action will be dismissed. Clerk is directed to send a copy of this Memorandum Opinion to Strouse. Robert E. /s/ Payne fltf Senior United States District Judge Richmond, Virginia Date: : ^ ^ u)'»iZ' 21
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