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Barber v. Copeland

United States District Court, Fourth Circuit

January 29, 2013

OVELL T. BARBER, Plaintiff,
SGT. K. COPELAND, et al., Defendants.


Hon. Michael F. Urbanski United States District Judge

Ovell T. Barber, a Virginia inmate proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983 with jurisdiction vested in 28 U.S.C. § 1343. Plaintiff names as defendants M. Vargo, Warden of the Sussex II State Prison (“Sussex II”); Sgt. K. Copeland, a correctional officer at Sussex II; and S. Owens, an Institutional Classification Authority (“ICA”) Representative at the Keen Mountain Correctional Center (“KMCC”). This matter is before the court for screening, pursuant to 28 U.S.C. § 1915A. After reviewing plaintiff’s submissions, the court dismisses the action without prejudice for failing to state a claim upon which relief may be granted.


Plaintiff’s submissions reveal the following facts. On July 18, 2012, plaintiff asked Sgt. Copeland to place him in protective custody because a prison gang placed a “hit” on plaintiff for $200. Sgt. Copeland transferred plaintiff to segregation and charged him with refusing to remain in general population and disobeying an order.

Plaintiff filed an informal complaint to Warden Vargo on July 22, 2012, because Sgt. Copeland transferred plaintiff into segregation and not protective custody. Sgt. Copeland responded to the informal complaint, stating, “The actions taken are the actions required by this administration.” Plaintiff filed a regular grievance, and Warden Vargo replied, “Based on the information provided, I have determined that your formal grievance is unfounded. Consequently, no remedy is warranted at this level.”

On August 1, 2012, the ICA at Sussex II formally assigned plaintiff to segregation. Plaintiff requested enemy forms from a prison counselor on August 8, 2012, but she merely responded, “Sussex II does not have P[rotective] C[ustody][;] Seg[regation] is as close as you are going to get to P[rotective] C[ustody] here.” Between August 1 and September 5, 2012, the Sussex II institutional investigator determined five times that plaintiff could not return to general population and kept plaintiff in segregation.

On October 5, 2012, the VDOC transferred plaintiff from Sussex II to KMCC, where he remained in segregation. Owens conducted plaintiff’s initial classification hearing at KMCC on October 9, 2012, when plaintiff explained that he had enemies at KMCC because of the $200 hit. Plaintiff states that Owens still had not placed him in protective custody by November 2012, but the documents attached to the Complaint establish that plaintiff remained in segregation at KMCC. (Pl.’s Attch. F (ECF no. 4-1).)

Plaintiff argues that Sgt. Copeland and Warden Vargo were deliberately indifferent to the risk of inmates harming plaintiff at Sussex II by denying plaintiff’s request for protective custody. Plaintiff argues that Owens was similarly deliberately indifferent by not assigning plaintiff to protective custody at KMCC. Plaintiff requests a declaratory judgment and an injunction that orders defendants to place him in protective custody at KMCC and prevents the VDOC from retaliating against him for filing this action.



Plaintiff filed a motion to join a new defendant, R. Clary, and a motion to amend the Amended Complaint to add new claims about Clary. Plaintiff alleges the following facts in support of these motions.

Plaintiff told Sussex II officials that he wanted to attend his ICA hearings after warning Sgt. Copeland, and he was present for the first ICA hearing on July 18, 2012. However, plaintiff was not permitted to attend the subsequent ICA hearings. Plaintiff filed an informal complaint, to which Clary replied, “You were present when assigned to segregation status. The [seven] day reviews are informal proceedings and you are not required to be there.”[1] Plaintiff appealed Clary’s response to Warden Vargo, who deemed the grievance founded and noted that plaintiff had a right to be present at all the ICA hearings. Plaintiff argues that Clary violated due process by not allowing him to attend the ICA hearings, by denying the informal complaint, and by causing a reduction in the rate of earned good conduct time because he remained in segregation instead of protective custody.

Plaintiff already amended the Complaint, and thus, he needs leave of court to amend the Amended Complaint. Fed.R.Civ.P. 15(a)(2). A court should freely give leave when justice so requires absent some reason “such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment or futility of the amendment . . . .” Foman v. Davis, 371 U.S. 178, 182 (1962) (citing Fed.R.Civ.P. 15(a)(2)). A court must also consider the more specific joinder provisions of Rules 19(a) and 20(a) when a plaintiff files a motion to amend that seeks to join another defendant. Hinson v. Norwest Fin. S.C., Inc., 239 F.3d 611, 618 (4th Cir. 2001). The proposed defendant must have a right to relief asserted against him, “arising out of the same transaction, occurrence, or series of transactions or occurrences” and the claims must share some “question of law or fact common to” all of the defendants. Fed.R.Civ.P. 20(a)(2).

Although plaintiff’s amendment about Clary presents common questions of law and fact, the motions to amend and to join must be denied as futile. Plaintiff’s ICA hearings were to resolve whether he should reside in general population or segregation at Sussex II. Plaintiff fails to identify how the ICA hearing resulted in the loss of a liberty or property interest, which would trigger federal due process protections. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 564-71 (1974). The fact a prison official may not have followed a prison’s policies or procedures does not alone state a constitutional claim. See United States v. Caceres, 440 U.S. 741, 752-55 (1978); Riccio v. Cnty. of Fairfax, Va., 907 F.2d 1459, 1469 (4th Cir. 1990) (holding that if state law grants more procedural rights than the Constitution requires, a state’s failure to abide by that law is not a federal due process issue). Furthermore, plaintiff does not have a protected liberty interest in earning a specific rate of good conduct time resulting from a certain security classification. See ...

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