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Hoye v. Gilmore

United States District Court, W.D. Virginia, Roanoke Division

June 21, 2016

CHARLES T. HOYE, Plaintiff,
v.
LT. GILMORE, et al., Defendant.

          MEMORANDUM OPINION

          Hon. Michael F. Urbanski United States District Judge.

         Plaintiff Charles T. Hoye, a Virginia inmate proceeding pro se, commenced this civil action pursuant to 42 U.S.C. § 1983. Plaintiff names staff of the Coffeewood Correctional Center ("CCC") and Virginia Department of Corrections ("VDOC") as defendants. Plaintiff argues in this action that his transfer from CCC to Deep Meadow Correctional Center ("DMCC") was retaliatory and frustrated the ability of his children to visit and communicate with him. Defendants filed a motion to dismiss, and Plaintiff responded with a "motion to amend, " asking the court to consider exhibits in support of the second amended complaint. After considering the motions, the court grants Plaintiffs motion to amend in part and grants Defendants' motion to dismiss.

         I.

         Plaintiff, a Jewish inmate suffering from diabetes, was housed at CCC from his initial entry into the VDOC in 2009 until his transfer to DMCC on January 14, 2015. While at CCC in August 2013, Plaintiff began filing administrative grievances to complain that the VDOC's Common Fare Menu did not accommodate both his religious and medical needs. Staff responded, advising Plaintiff to choose a diet that satisfies either his medical needs (a non-Kosher diet) or his religious needs (a sugary diet).

         Unsatisfied, Plaintiff commenced an action in state court pursuant to the Virginia Declaratory Judgments Act, Virginia Code § 8.01-184. Thereafter, defendants Gourdine and Martin "immediately suspended" Plaintiff from the Common Fare Menu, and CCC staff instituted an allegedly false institutional disciplinary action against him.

         In April 2014, Plaintiff commenced a civil action pursuant to 42 U.S.C. § 1983 in this court, Hove v. Clarke, No. 7:14-cv-00124, against defendants Lt. Gilmore, Martin, Gourdine and other staff. "Promptly after service of process" was ordered in that case, defendants Hillian and Gourdine instructed CCC security staff to prevent Plaintiff from using the prison's law library. Accordingly, Plaintiff sought to join Hillian as a defendant to the federal action and filed a regular grievance on January 7, 2015, to regain access to the law library. Two days later on January 9, 2015, Defendants allegedly requested that Plaintiff be transferred from CCC to DMCC with the specific condition Plaintiff never be allowed to return to CCC. Defendant Dawkins approved the request the same day, and Plaintiff was transferred from CCC to DMCC five days later on January 14, 2015.

         Plaintiff filed an informal complaint, complaining that the transfer was retaliatory in violation of VDOC policies. Defendant Hillian replied, noting the transfer was "deemed necessary for the well being of DOC." Defendant Lt. Gilmore replied to Plaintiffs regular grievance, noting the transfer was "necessary for the orderly operation of the facility." Defendant Parks replied to Plaintiffs grievance appeal, stating the transfer was "for purposes of managing the prison population." Before the transfer to DMCC, Plaintiffs ex-wife was able to bring Plaintiffs young daughters from Fairfax, Virginia, to CCC every two months, and Plaintiff was able to frequently call his daughters. After the transfer, however, visitation "has become practically impossible due to the distances" and the increased cost of long-distance phone charges adds to "his and the children's sense of isolation from each other and to the detriment of both." Plaintiff claims that Defendants "unlawfully and tortiously alienated and deprived" his daughters "of parental consortium" with Plaintiff. The remaining two claims allege that Defendants conspired to cause, and did cause, a retaliatory transfer in violation of the First Amendment of the United States Constitution; Article I, section 12 of the Virginia Constitution; and VDOC Operating Procedure 866.1.

         II.

         In response to Defendants' motion to dismiss, Plaintiff filed a "motion for leave to amend or, in the alternative, to supplement the second amended complaint with a request for judicial notice of adjudicative facts" and a motion to file a response out of time.[1] Plaintiff acknowledges that the proposed third amended complaint does not add any cause of action or join a new party. Instead, he merely wishes the court to consider the proposed exhibits in support of the complaint and in opposition to the motion to dismiss. Accordingly, the court grants the motions to the extent it will consider the exhibits in adjudicating the motion to dismiss.

         III.

         The court must dismiss an action or claim filed by an inmate if the court determines that the action or claim is frivolous or fails to state a claim on which relief may be granted. See 28 U.S.C. §§ 1915(e)(2), 1915A(b)(l); 42 U.S.C. § 1997e(c). The first standard includes claims based upon "an indisputably meritless legal theory, " "claims of infringement of a legal interest which clearly does not exist, " or claims where the "factual contentions are clearly baseless." Neitzke v. Williams. 490 U.S. 319, 327 (1989). The second standard is the familiar standard for a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), accepting a plaintiffs factual allegations as true. A complaint needs "a short and plain statement of the claim showing that the pleader is entitled to relief and sufficient "[fj actual allegations ... to raise a right to relief above the speculative level...." Bell Atl. Corp. v. Twomblv, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). A plaintiffs basis for relief "requires more than labels and conclusions ...." Id. Therefore, a plaintiff must "allege facts sufficient to state all the elements of [the] claim."[2] Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003).

         To state a First Amendment § 1983 retaliation claim, a plaintiff must establish three elements: (1) the plaintiffs right to speak was protected; (2) the defendant's alleged retaliatory action adversely affected the plaintiffs constitutionally protected speech; and (3) a causal relationship existed between the plaintiffs speech and the defendant's retaliatory action. Suarez Corp. Indus, v. McGraw. 202 F.3d 676, 685-86 (4th Cir. 2000) (citations omitted).

         Filing grievances cannot form the basis of a retaliation claim in this circuit because, pursuant to Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994), "there is no constitutional right to participate in grievance proceedings."[3] Furthermore, "there is no constitutional right to prison visitation, either for prisoners or visitors." White v. Keller, 438 F.Supp. 110, 115 (D. Md. 1977), affd, 588 F.2d 913 (4th Cir. 1978). Plaintiff acknowledges he is allowed to pay for phone calls, and he does not have the right to free or unfettered telephone use. See, e.g., Benzel v. Grarnmer, 869 F.2d 1105, 1108 (8th Cir. 1989).

         Accordingly, Defendants' motion to dismiss must be granted to the extent Plaintiffs presents a claim of retaliation based on filing administrative grievances, visitation, or "more expensive" phone calls. However, the court will assume the existence of the first element as to the filing of the federal and state lawsuits because "[t]he filing of a lawsuit carries significant constitutional protections, implicating the First Amendment right to petition the government for redress of grievances, and ...


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