Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Birdsong v. Ponton

United States District Court, E.D. Virginia, Richmond Division

March 9, 2016

CHARLES A. BIRDSONG, Plaintiff,
v.
HENRY J. PONTON, et al., Defendants.

MEMORANDUM OPINION

JAMES R. SPENCER SENIOR U.S. DISTRICT JUDGE

Charles A. Birdsong, a Virginia inmate, brings this 42 U.S.C. § 1983[1] action alleging that Defendants[2] violated his due process rights under the Fourteenth Amendment.[3] By Memorandum Opinion and Order entered on November 13, 2015, the Court dismissed all of Birdsong's claims except Claim One (c). Birdsong v. Ponton, No. 3:14CV702, 2015 WL 7176112, at *6 (E.D. Va. Nov. 13, 2015). The action proceeds on Claim One (c) of Birdsong's Complaint. (ECFNo. 1.) Specifically, Birdsong asserts:

Claim One (c): Defendants violated Birdsong's Fourteenth Amendment right to due process when he was transferred to a higher security prison.

Birdsong seeks declaratory, injunctive, and monetary relief.

The matter is now before the Court on Defendants' Motion for Summary Judgment. (ECF No. 25.) The Court previously explained:

First, the Court believes that Birdsong only intends to bring a due process challenge on the ground that Defendants inhibited his ability to appeal his institutional conviction. As previously explained, Birdsong simply "[does] not enjoy a procedural due process right to an appeal." ... However, to the extent he alleges he was deprived of some procedural protection prior to his transfer to the alleged "supermax" prison, the Court acknowledges that Birdsong may have a liberty interest, protected by the Fourteenth Amendment's Due Process Clause, in avoiding assignment to a "supermax" prison. See Wilkinson v. Austin, 545 U.S. 209, 223-24 (2005) (finding that inmates in Ohio had a liberty interest in avoiding transfer to Ohio State Penitentiary, a "supermax" facility).

Birdsong, 2015 WL 7176112, at *4 (alteration in original). It is undisputed that Birdsong was transferred to Red Onion after his ICA hearing. (Ponton Aff. ¶ 7.) Courts in the Fourth Circuit have found that Red Onion is one of two "supermax" facilities in Virginia. See, e.g., Johnson v. Warner, 200 F.App'x 270, 271 n.* (4th Cir. 2006). Although the Court noted that under Wilkinson, Birdsong may have a protected liberty interest in avoiding placement at Red Onion, Defendants inexplicably failed to address this issue. Furthermore, to the extent Birdsong has a liberty interest in avoiding placement at Red Onion, Defendants fail to address what process was due to Birdsong before his transfer, see e.g., Wilkinson, 545 U.S. 223-28; Matthews v. Eldrige, 424 U.S. 319, 335 (1976), and this Court declines to do so in the first instance. Given the inadequacy of the current briefing, the Court concludes the appropriate disposition is to deny without prejudice the Motion for Summary Judgment.[4] Defendants shall have thirty (30) days to resubmit their Motion for Summary Judgment. The Memorandum in Support of the Motion for Summary Judgment must adequately brief the remaining claim and any such affirmative defenses Defendants intend to raise. With respect to the due process issue, Defendants must address: (1) whether the pertinent state rules and regulations create a liberty interest in avoiding a transfer to Red Onion; and, (2) if inmates enjoy a liberty interest in avoiding a transfer to Red Onion, what process does the Constitution require and what process did Birdsong receive.

Birdsong also filed a Motion for Reconsideration (ECF No. 35) of the Court's November 13, 2015 Memorandum Opinion and Order dismissing all of his claims except Claim One (c). The Court construes this Motion for Reconsideration as one brought pursuant to Federal Rule of Civil Procedure 54(b).[5] The power to grant relief under Rule 54(b) "is committed to the discretion of the district court." Am. Canoe Ass 'n v. Murphy Farms, Inc., 326 F.3d 505, 515 (4th Cir. 2003) (citing Moses H. Cone Mem 7 Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 (1983)). Granting a motion for reconsideration generally should be limited to instances such as the following:

[T]he Court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension-----[or] a controlling or significant change in the law or facts since the submission of the issue to the Court [has occurred]. Such problems rarely arise and the motion to reconsider should be equally rare.

Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983); accord United States v. Smithfield Foods, Inc., 969 F.Supp. 975, 977 (E.D. Va. 1997); see Tully v. Tolley, 63 F.App'x 108, 113 (4th Cir. 2003) (concluding district court properly denied Rule 54(b) motion where new evidence could have been discovered with due diligence). Reconsideration is also appropriate when '"the prior decision was clearly erroneous and would work manifest injustice.'" Am. Canoe Ass 'n, 326 F.3d at 515 (quoting Sejman v. Warner-Lambert Co., 845 F.2d 66, 69 (4th Cir. 1988)). The courts do not entertain motions to reconsider which ask the Court merely to "rethink what the Court had already thought through-rightly or wrongly." Above the Belt, Inc., 99 F.R.D. at 101. Birdsong fails to satisfy the relevant criteria for reconsideration. He fails to demonstrate that the Court's prior decision was made in error, would cause manifest injustice, or any other reason to grant relief. Thus, his Motion for Reconsideration (ECF No. 35) will be DENIED.

For the reasons stated above, Defendants' Motion for Summary Judgment (ECF No. 25) will be DENIED WITHOUT PREJUDICE. Birdsong's Motions for Extension of Time ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.