United States District Court, W.D. Virginia, Roanoke Division
ELISTON F. GEORGE, Plaintiff,
Y. TAYLOR, et al., Defendants.
K. Moon United States District Judge.
Eliston F. George, a United States Virgin Islands inmate
housed in Virginia and proceeding pro se, filed a
civil rights action pursuant to 42 U.S.C. § 1983
alleging that the defendants violated his First Amendment
rights. Defendants moved to dismiss and George responded,
making this matter ripe for disposition. After reviewing
the record, I conclude that defendants' motion to dismiss
must be granted.
alleges that on January 20, 2015, he requested that defendant
Counselor Farmer photocopy “some legal mail documents
that [were] needed to file a writ of mandamus in the Virgin
Islands court.” George alleges that Farmer told him
that defendant Institutional Program Manager Taylor told
Farmer to make legal copies in the “treatment
department.” George asked Farmer if he could go with
him to make the copies and Farmer said, “no.”
George alleges that Taylor has “enacted and enforced an
unwritten policy” at Keen Mountain Correctional Center
(“KMCC”) that requires all copying of
prisoner's documents be done in the treatment department.
George states that the unwritten policy does differentiate
between confidential, privileged legal documents and other
“unprotected” documents, but he does not specify
how.According to George, the Implementation
Memorandum to Department Operating Procedure 866.3 states
that, “since the courts will accept handwritten briefs,
[KMCC] is not mandated to provide photocopying services.
However, whenever possible, photocopying services of legal
documents will be provided to an offender.”
filed an informal complaint about Farmer's
“refusal” to make the photocopies of George's
“confidential legal mail” in George's
presence. In response, Taylor stated that, “[c]opying
services are performed in the treatment department where we
have appropriate and adequate equipment available. Counselors
are professional employees who use appropriate discretion in
providing copying services for offenders.” George then
filed a regular grievance which was rejected because it was
deemed a request for services. The intake decision was upheld
on appeal. George claims that defendants Taylor and Farmer
violated his First Amendment rights by failing to make the
photocopies in his presence pursuant to the
alleges that he needed copies of “orders and
affidavits” to be able to prepare a petition for a writ
of mandamus to file in the United States Court of Appeals for
the Third Circuit, in order to compel the District Court for
the Virgin Islands to issue a decision in his § 1983
action that had been pending for approximately 20 months. He
also alleges that he has a petition for a writ of audita
querela pending in the Virgin Islands and he
“wishes to add additional support from trial
transcripts and affidavits.” He claims that he has the
“only copy of the trial transcript” because the
“original was destroyed in a courthouse flood years
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of a complaint to
determine whether the plaintiff has properly stated a claim;
“it does not resolve contests surrounding the facts,
the merits of a claim, or the applicability of
defenses.” Republican Party of N.C. v. Martin,
980 F.2d 943, 952 (4th Cir. 1992). In considering a Rule
12(b)(6) motion, a court must accept all factual allegations
in the complaint as true and must draw all reasonable
inferences in favor of the plaintiff. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). Legal conclusions in the
guise of factual allegations, however, are not entitled to a
presumption of truth. Ashcroft v. Iqbal, 556 U.S.
a complaint “does not need detailed factual
allegations, a plaintiff's obligation to provide the
grounds of his entitle[ment] to relief requires more than
labels and conclusions, and a formulaic recitation of a cause
of action's elements will not do.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations
and quotations omitted). “Factual allegations must be
enough to raise a right to relief above the speculative
level, ” id., with all the allegations in the
complaint taken as true and all reasonable inferences drawn
in the plaintiff's favor, Chao v. Rivendell Woods,
Inc., 415 F.3d 342, 346 (4th Cir. 2005). Rule 12(b)(6)
does “not require heightened fact pleading of
specifics, but only enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550
U.S. at 570. Consequently, “only a complaint that
states a plausible claim for relief survives a motion to
dismiss.” Id. A claim is plausible if the
complaint contains “factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged, ” and if there is
“more than a sheer possibility that a defendant has
acted unlawfully.” Iqbal, 556 U.S. at 678.
alleges that defendants Taylor and Farmer violated his First
Amendment rights by failing to copy his documents in his
presence and by having the “unwritten” policy
which requires counselors to copy documents in an area
outside the inmates' presence. I conclude that
George's allegations are insufficient to state a
cognizable § 1983 claim and, therefore, will grant
defendants' motion to dismiss.
have no specific constitutional right to photocopies.
See, e.g., Lyons v. Clark, 694 F.Supp. 184, 188
(E.D. Va. 1988); Cottrell v. Jabe, No. 7:10cv505,
2012 U.S. Dist. LEXIS 28445, at *37-38, 2012 WL 830469, at
*13 (W.D. Va. Feb. 17, 2012). Rather, to make out a claim
under § 1983 based on denial of copying privileges, an
inmate must show that the denial prevented him from
exercising his constitutional right of access to courts.
Jones v. Franzen, 697 F.2d 801, 803 (7th Cir. 1983).
“The reasonableness of a prison's photocopy policy
becomes relevant only after the prisoner has shown that the
policy is impeding that access, for if it is unreasonable,
but not impeding, he has not made out a prima facie case of
violation of his constitutional rights.” Id.
have a constitutional right to reasonable access to the
courts. See Lewis v. Casey, 518 U.S. 343, 351-53
(1996); Bounds v. Smith, 430 U.S. 817, 838 (1977);
Ex parte Hull, 312 U.S. 546 (1941). In order to
bring a denial of access to the courts claim, a plaintiff
must (1) identify a nonfrivolous, arguable underlying claim;
(2) show official acts frustrating litigation; and (3)
propose a remedy that may be awarded as recompense but not
otherwise available in some suit that may yet be brought.
Christopher v. Harbury, 536 U.S. 403, 415 (2002).
The right of access to the courts “is ancillary to the
underlying claim, without which a plaintiff cannot have
suffered injury by being shut out of court.”
Id. Thus, in order to state a constitutional claim
of denial of access to the courts, a plaintiff must allege
specific injury resulting from the alleged denial. See
Lewis, 518 U.S. at 349 (holding that an inmate alleging
denial of access to the courts must be able to demonstrate
“actual injury” caused by the policy or procedure
in effect at the place of incarceration in that his
non-frivolous legal claim had been frustrated or was being
impeded); Cochran v. Morris, 73 F.3d 1310, 1317 (4th
Cir. 1996) (plaintiff failed to identify any actual injury
resulting from official conduct); Strickler v.
Waters, 989 F.2d 1375, 1384 (4th Cir.1993) (Prisoner had
a “basic requirement that he show specific harm or
prejudice from the allegedly denied access.”). The
predicate claim must be described well enough to apply the
“nonfrivolous” test and to show that the
“arguable” nature of the underlying claim is more
than hope. Christopher, 536 U.S. at 416.
right to access to the courts is intended to permit inmates
“to litigate post-conviction legal issues, such as
habeas corpus and civil rights actions.” Harvey v.
Horan, 278 F.3d 370, 386 (4th Cir. 2002). However,
“a state has no affirmative duty to ‘enable the
prisoner to discover grievances, and to litigate effectively
once in court.” Id. (citing Lewis,
518 U.S. at 354). “Thus, although a state must provide
prisoners with meaningful access to the legal system, it is
not obligated to maximize the prisoner's chances of
prevailing in his postconviction action.” Id.
While prison officials may not “actively interfer[e]
with inmates' attempts to prepare legal documents, or
file them, ” Lewis, 518 U.S. at 350,
“[p]rison policies that cause mere inconvenience or
delay of an inmate's litigation efforts do not violate
his right to access the courts, ” Makdessi v.
Hinkle, No. 7:14CV00034, 2014 U.S. Dist. LEXIS 63231, at
*10, 2014 WL 1782820, at *4 (W.D. Va. May 5, 2014).
“The fact that an inmate may not be able ...