Richards v. Nuss, No. 3:2014cv00125 - Document 18 (E.D. Va. 2015)
Court Description: CORRECTED MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 5/14/2015. Copy mailed to Pro Se Plaintiff. (jsmi, )
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Richards v. Nuss Doc. 18 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division MARK E. RICHARDS, Plaintiff/ V. Civil Action No. 3:14CV125 LISA NUSS, Defendant. MEMORANDUM OPINION Mark E, Richards, in forma pauperis, a Virginia inmate proceeding pro se and filed this 42 U.S.C. § 1983 action.^ The matter is before the Court for evaluation pursuant to 28 U.S.C. §§ 1915(e) (2) to 28 U.S.C. and 1915A. §§ 636(b) Jurisdiction is appropriate pursuant and 1343. I. Preliminary Review Pursuant to the Prison Litigation Reform Act C'PLRA") this Court must dismiss any action filed by a prisoner if the Court determines the action (1) "is frivolous" or (2) ''fails to state ^ The 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 a claim on which § 1915(e)(2); includes relief 28 claims may U.S.C. based be § upon granted." 1915A. '*an The 28 first indisputably U.S.C. standard meritless legal theory,'" or claims where the '"'^factual contentions are clearly baseless.'" 1992) Clay Yates^ (quoting Neitzke v. The Court may claim is look to frivolous. the familiar P. v. own id. standard for a F. Williams^ its See 809 at Supp. 417, 490 U.S. records 427 319, (E.D. 327 Va. (1989)). in assessing whether 427-28. The a second standard is motion to dismiss under Fed. R. Civ. 12(b)(6). motion to dismiss under Rule of a complaint; surrounding importantly, it facts, the merits the applicability of defenses." 980 F.2d 943, Arthur R. 12(b) (6) 952 Miller, (4th Cir. does tests not of the sufficiency resolve a contests claim, or the Republican Party of N.C. v. Martin^ 1992) (citing 5A Charles A. Wright & Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiff s well-pleaded allegations are taken as true and the complaint is plaintiff. Cir. 1993); applies viewed Mylan Labs., see only considering in factual motion light most to 980 F.2d at allegations, dismiss can to the 7 F.3d 1130, 1134 Inc. v. Matkari, also Martin, to a the favorable (4th 952. however, choose This principle and ''a court to begin by identifying pleadings conclusions, are Ashcroft V. The that, not Iqbal, Federal because entitled 556 U.S. Rules to the 679 662, of they are no more (2009). Civil assumption Procedure of than "require[ truth." ] only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' notice of what the rests.'" . Bell Atl. . in order 41, 47 with complaints "formulaic Id. Corp. (1957)). v. Twombly, level," "to id. "plausible raise of a its "conceivable." Id. plaintiff pleads reasonable survive 550 U.S. cannot to id. fair 555 and of a (2007) Gibson, standard conclusions" cause 355 of or a action." above stating at 570, facial the a speculative claim rather that than is merely plausibility when the content that allows the court to draw that Iqbal, at 556). 544, satisfy this relief "A claim has inference for defendant a plaintiff must allege facts omitted), factual dismissal elements Instead, face," misconduct alleged." Corp. , the right (citation on the 550 U.S. containing only "labels recitation the (quoting Conley v. Plaintiffs (citations omitted). sufficient ^give . claim is and the grounds upon which it (second alteration in original) U.S. to the defendant 556 U.S. at 678 In order for a failure to state a is liable for the (citing Bell Atl. claim or complaint to claim, the plaintiff must "allege facts sufficient to state all the elements of [his or] 761, her claim." 765 {4th Cir. F.3d 193, 213 270, Bass v. 281 2003) se 1151 1978), (4th Cir. inmate to Lastly, while Gordon v. 1278 concurring); {4th Cir. statutory and clearly raise Beaudett Richards, Leeke^ on the v. City of face of liberally F.2d 1147, his claims Hampton, 775 the complaint. (4th Cir. 1997) (Luttig, F.2d 1274, a Summairy of Allegations Virginia inmate eligible for brings this action against Lisa Nuss, Nuss 574 constitutional counselor at Deep Meadow Correctional Center. that Court 1985). II. parole, the it does not act as the inmate's advocate, See Brock v. Carroll, 107 F.3d 241, 243 J., 309 lodice v. United States, 289 F.3d complaints, developing failed 324 F.3d (citing Dickson v. Microsoft Corp., (4th Cir. 2002)). sponte DuPont de Nemours & Co., (4th Cir. 2002); construes pro sua E.I. caused him to transmit false discretionary an institutional Richards contends information about his prison employment to the Virginia Parole Board which resulted in the denial 2014.^ of Richards's Richards asserts release that as on a discretionary result of parole Defendant Nuss's ^ Specifically, Richards alleges that: Plaintiff accurate [Parole] informed Defendant information Board interview . . . . that he wished to convey concerning his employment to the at the upcoming Defendant 4 informed Plaintiff in that action, '^Plaintif f' s consideration for liberty parole interest suitability was to infringed result thereof deprived of due process of law." Ill. The deprives an interest. 564, Process Clause applies of See Bd. 569-70 and as a (Id. at 4.) Analysis individual Due meaningful a when legitimate government liberty of Regents of State Colls, (1972) . Thus, the first or property Roth^ v. step action 408 U.S. in analyzing a procedural due process claim is to identify whether the alleged conduct affects Beverati v. omitted). interest, Smithy a protected liberty 120 F.3d 500, 502 property (4th Cir. Where government action impacts a 1997) interest. (citations protected liberty the second step is to determine ^^what process is due" under the circumstances. (1972) or Morrissey v. Brewer, 408 U.S. 471, 481 (observing that "due process is flexible . . . . not all her review of his institutional he was still employed as a and that information would be in her parole report. records indicated that Housekeeping Worker in 6B transmitted to the Board Plaintiff was interviewed by a representative from the Board the morning of January 13, 2014, during which he stated that he was employed as a Housekeeping Worker in 6B . . . . On the night of January 13, 2014, Plaintiff received his Offender Pay Statement for the period of December 2, 2013 to January 5, 2014, and learned for the first time that his employment as a Housekeeping Worker in 6B had been terminated on December 30, 2013. (Compl. 3 (spelling corrected)(citation omitted).) 5 situations calling for procedural safeguards call for the same kind of procedure"). A liberty interest may arise from the Constitution itself, or from state laws and policies. 209, 220-21 (2005). "There Wilkinson v. Austin, is no constitutional or 545 U.S. inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Neb. Complex, Penal & Corr. 442 Greenholtz v. U.S. 1, constitutional right to parole per se, 7 Inmates of (1979). ''With no federal courts recognize due process rights in an inmate only where the state has created a ^legitimate claim of entitlement' Vann v. Anqelone, Gaston v. 73 Taylor, F.3d 519, 946 F.2d 340, The United States Court consistently has to 522 344 some aspect of parole." (4th Cir. (4th Cir. of Appeals 1996) (quoting 1991)). for the Fourth Circuit found the pertinent Virginia statutes fail create a protected liberty interest in release on parole. Burnette v. Gaston v. Angelone, has (E.D. Taylor, Va. 687 946 a Oct. 522 limited Burnette 25, v. F.3d F.2d 73 F.3d 519, created parole. Fahey, 171, 340, 344 (4th Cir. liberty Fahey, 2010); 181 (4th (4th Cir. 1996)). interest 3:10CV70, Burnette, Cir. in 2010 687 2012) 1991); Virginia, See (citing Vann F.3d 4279403, at 181. v. however, consideration WL to at for *8 ''The question thus becomes what procedures are required under the Due Process Clause in [considering] release on parole.'" Neal V. Fahey, Mar. 18, Burnette, inmate for discretionary 2010 WL 4279403, at *8 Fourth Circuit 2008 has WL 728892, stated that at *2 (quoting 2008)). The No. 3:07cv374, an the {E.D. Va. Constitution requires only a very limited amount of process in considering an inmate for parole. authorities reasons must for (alteration Specifically, furnish denial and of to the in most, prisoner parole." omission ^Ma]t a (internal quotation marks omitted). 687 under state." Moreover, the Burnette, ''where guise of due 2010 the WL constitutionally valid ground, allegedly right." 1986) invalid ground Bloodgood v. the omitted) at the federal courts demand more *8 parole not Garraqhty, Virginia at 181 from (citation . . . the omitted). rests on one the Board's consideration of an would (citing Zant v. Stephens, Here, process, of F.3d its "So long as the statement 4279403, denial of (citation provides a valid ground for denying parole, cannot, parole statement Burnette, original) . . . violate 783 462 U.S. Parole F.2d 862 a constitutional 470, 475 (4th Cir. (1983)). Board provided statement of its reasons for denying him parole. Richards with Memorandum in Support of Petition for Writ of Habeas Corpus Attachment D, 1, Richards v. Clarke, 3:14CV715 (E.D. Va. a filed Oct. 29, at 2014), ECF No. 2-1, at 4 (as Richards's allegation, Richards's parole paginated the (Id.) accurate information parole. *1-5 {E.D. Va. of any CM/ECF) . Parole false Contrary Board did to deny about information not his Richards was denied parole based upon See Richards v. at Virginia because prison employment. by that he was Clarke, Feb. and No. 21, is a poor 3:12CV639, 2014) candidate for 2014 WL 693505, (describing Richards's extensive criminal record and poor behavior while on release on parole). Because Richards has received all of the process that the Constitution requires, for the denial that he was he fails to state a claim for relief of due process. denied parole Moreover, because of Richards's inaccurate assertion information about his prison employment is frivolous. The and as action will legally and be dismissed factually for failure frivolous. to The state Clerk a claim will be directed to note the disposition of the action for purposes of 28 U.S.C. The § 1915(g). Clerk is directed to send a copy of the Memorandum Opinion to Richards. /s/ Robert E. Payne Senior United States District Judge Date: Richmond, Virginia
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