United States District Court, W.D. Virginia, Roanoke Division
CHARLES T. HOYE, Plaintiff,
LT. GILMORE, et al., Defendant.
Michael F. Urbanski United States District Judge.
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.
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).
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.
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.
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.
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. 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.
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." Bass v. E.I. Dupont de Nemours &
Co., 324 F.3d 761, 765 (4th Cir. 2003).
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)
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." 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).
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 ...