United States District Court, E.D. Virginia, Richmond Division
ROBERT E. PAYNE, District Judge.
Joe Edmond King, a Virginia detainee currently in the custody of the Department of Behavioral Health and Developmental Services ("DBHDS"), proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983 complaint. The matter is before the Court on: (1) the Motion to Dismiss filed by Defendant James W. Stewart, III, the Commissioner of the Virginia Department of Behavioral Health and Developmental Services ("DBHDS") (ECF No. 30); (2) the Motion to Dismiss filed by Defendant Dr. Glenn R. Miller, Jr. (ECF No. 23); (3) the Motion to Dismiss filed by Defendants Sheriff Dan Smith, Captain Darryl Smith, Lt. Keith Bocock, Sgt. Elbert Cassady, Sgt. Barry Vipperman, Deputy Bobby Johnson, Deputy Eddie Hancock, Deputy Jason Handy, Deputy Sara Thompson, and Steve Turner ("Patrick County Jail Defendants") (ECF No. 37); and (4) the Court's evaluation pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A. King has responded. (ECF No. 41.) For the reasons set forth below, the Court will grant Defendant Stewart's Motion to Dismiss, will grant Defendant Miller's Motion to Dismiss, will deny the Patrick County Jail Defendants' Motions to Dismiss, and will summarily dismiss Claim Two.
I. KING'S COMPLAINT
In his Particularized Complaint ("Complaint"),  King makes the following allegations with respect to the remaining defendants:
(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): 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..." 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 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 crime, was arrested and taken into punitive environment of the Patrick County Jail...."
(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 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 § 37.2-913(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 commitment on November 1, 2011, at 9:00 a.m.; and, ..." this due process right established by statute ...