United States District Court, W.D. Virginia, Roanoke Division
MICHAEL E. JACKSON, Plaintiff,
E. BARKSDALE, et al., Defendants.
Michael F. Urbanski United States District Judge
E. Jackson, a Virginia inmate proceeding pro se, filed a
civil action pursuant to 42 U.S.C. § 1983 and the
Virginia Tort Claims Act, naming staff of the Red Onion State
Prison ("ROSP") as defendants. Defendants filed a
motion to dismiss, to which Plaintiff responded,
making the matter ripe for disposition.
After reviewing Plaintiffs submissions, the court grants the
motion to dismiss and dismisses the complaint.
was charged with a "224" infraction for possessing
contraband at ROSP, and he accepted a penalty offer for the
temporary loss of phone privileges. After Plaintiff accepted
the penalty offer, the Institutional Classification Authority
("ICA") convened a meeting and recommended that
Plaintiffs housing assignment be changed to segregation.
Defendant Younce approved the ICA's recommendation, and
Plaintiff was moved into segregation.
asserts that these two separate consequences resulting from
one institutional conviction constitute double jeopardy and
violate due process and equal protection. Plaintiff also
passingly asserts that the temporary deprivation of
unspecified personal property for an unspecified amount of
time violates the Fourth Amendment and that defendants
violated various prison policies or procedures while
adjudicating the charge or assigning him to segregation.
Finally, Plaintiff complains that defendant Warden Barksdale
did not remedy the alleged deprivation of rights during
administrative review of the disciplinary conviction or
assignment to segregation.
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)(1); 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 "[f]actual allegations ... to raise a right
to relief above the speculative level" Bell Atl.
Corp. v. Twombly, 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).
complaint fails to state a claim upon which relief may be
granted. The Double Jeopardy Clause does not apply to prison
disciplinary proceedings. See, e.R., Breed v.
Jones, 421 U.S. 519, 528 (1975); Lucero v.
Gunter, 17 F.3d 1347, 1350 (10th Cir. 1994);
Patterson v. United States, 183 F.2d 327, 327-28
(4th Cir. 1950). Plaintiffs simple allegations that he
forfeited phone privileges and was assigned to segregation
does not describe an atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.
See, e.g., Sandin v. Conner, 515 U.S. 472,
486-87 (1995); Beverati v. Smith, 120 F.3d 500, 503
(4th Cir. 1997); see also Wolff v. McDonnell, 418
U.S. 539, 564-71 (1974) (describing circumstances when due
process is warranted for prison disciplinary hearings).
Plaintiffs conclusory invocations of "due process,
" "equal protection, " and the "Fourth
Amendment" do not warrant the assumption of truth and do
not state an actionable claim. The claim that prison
officials have not followed their own independent policies or
procedures also does not state a constitutional claim.
See United States v. Caceres, 440 U.S. 741, 752-55
(1978); Riccio v. Cnty. of Fairfax, 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). Lastly, Plaintiff cannot pursue a claim under
the Virginia Tort Claims Act in federal court. See,
e.g. McConnell v. Adams, 829 F.2d 1319, 1329
(4th Cir. 1978); Creed v. Virginia, 596 F.Supp.2d
930, 938 (E.D. Va. 2009). Accordingly, the complaint must be
dismissed for failing to state a claim upon which relief may
foregoing reasons, the court denies Plaintiffs motions for
default judgment and grants Defendants' motion to
 Plaintiff also filed several motions
for default judgment. These motions are denied because the
defendants timely responded to the complaint.
 Determining whether a complaint states
a plausible claim for relief is "a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense." Ashcroft v.
Iqbal,556 U.S. 662, 678-79 (2009). Thus, a court
screening a complaint under Rule 12(b)(6) can identify
pleadings that are not entitled to an assumption of truth
because they consist of no more than labels and conclusions.
Id. Although the court liberally construes pro se
complaints. Haines v. Kerner,404 U.S. 519, 520-21
(1972), the court does not act as an inmate's advocate,
sua sponte developing statutory and constitutional
claims not clearly raised in a complaint. See Brock v.
Carroll.107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J.,
concurring); Beaudett v. City of Hampton. 775 F.2d
1274, 1278 ...