United States District Court, W.D. Virginia, Roanoke Division
E. Conrad Chief United States District Judge
Ballance, a Virginia inmate proceeding pro se, filed this
civil rights action under 42 U.S.C. § 1983, alleging
that prison officials punished him for refusing to sign an
unconstitutional Release of Liability form regarding his
personal property and unlawfully seized part of his income.
The matter is currently before the court on cross motions for
summary judgment. Finding no genuine issues of material fact
in dispute on which Ballance could prevail in any
constitutional Claim, the court concludes that
defendants' motion must be granted, and plaintiffs motion
must be denied.
states the following sequence of events related to his
claims. On December 3, 2013, Ballance was
transferred from Nottoway Correctional Center
("Nottoway") to River North Correctional Center
("RNCC") with several boxes of personal property
items. RNCC Property Officer David Felts brought Ballance two
boxes and told him that "'they' had stole[n]
[him] blind" and "they were keeping his TV and MP4
music player as punishment for the law suit at
Nottoway." (Ballance Decl. ¶¶ 1-2, ECF No.
30.) Felts also told Ballance, "You are going to sign a
waiver of liability form so you cannot sue anyone at RNCC,
and that will take care of your law suit at Nottoway."
(Id. ¶ 2.) Ballance refused to sign the form.
Felts and Major Mullins told Ballance that he would not
receive any personal property, including incoming mail from
his family, subscription magazines or newspapers, or
mail-ordered books; when such publications arrived, officials
returned them to the sender and later ordered Ballance to
cancel his subscriptions. Defendants also banned Ballance
from having his personal hygiene products in his cell, such
as soap, toothpaste, shower shoes, and deodorant. Officers
searched his cell every two weeks to remove any hygiene items
or magazines he might have acquired.
allegedly filed more than sixty grievances about being denied
his personal property. Defendant Walls refused to log or
process any of these filings and eventually placed a
restriction on the number of grievances Ballance could file.
August 12, 2015, as Ballance was leaving the chow hall after
eating breakfast, newly appointed RNCC Warden Walrath ordered
officers to take Ballance to the gym, where they allegedly
forced him to stand facing a wall for over an hour with his
hands above his head. They then forced him to sit on the
"concrete floor for another eight hours" while
cells were being searched, before allowing him to return to
his cell. (Ig\ ¶ 13.) Ballance alleges that he
thereafter "feared" that if he went to the RNCC
chow hall to eat, he would face similar punishment.
(Id. ¶ 17.) Ballance stopped eating any
RNCC-provided meals. He states, "Walrath stopped me from
eating for seven months because I refused to sign the
[Release of Liability] form." (Ballance Aff.¶6,
at2, ECF No. 61-10.)
also states that RNCC officials have seized and are holding
$626.18 of his trust account monies until his release from
prison. With five life sentences, plus terms of 161 years and
six months in prison to serve, Ballance asserts that holding
his funds until his release is an unlawful seizure.
Defendants' Evidence and Ballance's Rebuttal
records at RNCC indicate that Ballance arrived at RNCC with
four boxes of personal property on December 3, 2013. RNCC
officials noted that Ballance's institutional record did
not include a signed Release of Liability form. Officer Felts
informed him that he could not possess personal property
items in his cell at RNCC unless he signed such a form. This
lengthy form states, in pertinent part:
Each offender must complete this form prior to, and as a
condition of, possessing or acquiring personal property while
an offender [is] confined in a [VDOC prison facility].. . .
I understand that my possession of personal property, in
addition to state issued property, in this facility is a
privilege. From time to time, [VDOC] employees may store,
transport, inspect, or otherwise control my personal
property. I recognize that accidents or other events may
occur which may result in the theft of, loss of, or damage to
my personal property. The liability of the [VDOC] shall be
limited to no greater than fifty dollars ($50.00) for any
item of personal property and that reimbursement or
replacement is limited to damage, loss or theft only when
such property is in the possession of a [VDOC] employee ...
and shall not include normal wear and tear, or damage
incidental to searches, transportation of personal property,
or other incidents, including but not limited to, theft or
damage by other offenders, disturbances, riots, fires and
flood. Reimbursement will be limited to the actual
depreciated value of the item at the time of damage or loss.
Items with a value exceeding the limits specified in this
procedure are retained solely at my risk.
In consideration of the above and except as noted in
Operating Procedure ["OP"] 802.1, IV, B, Extent of
Liability,  and in recognition and assumption of all
risks and dangers of damage to, loss of, or theft of personal
property, I agree to hold the [state, the VDOC, ] and its
employees harmless with regard to any loss of, theft of, or
damage to my personal property. I further release the [state,
the VDOC, ] and its employees from any and all legal
liability and claims which may arise with regard to my
personal property, and agree not to bring any lawsuit. . .
regarding my personal property or to recover money on account
of any loss of, or theft of, or damage to my personal
Notwithstanding the above, I retain all rights and remedies
under the [VDOC grievance procedures] and I further recognize
that my sole and exclusive right to seek recovery against the
[state] or its employees regarding my personal property, or
for any loss of, theft of, or damage to my personal property,
is that provided by [OP] 802.1 and the [inmate grievance
procedures] or by written appeal to the Unit Head. I further
recognize that I am free to seek to make my own arrangements
to insure my personal property with an insurance company of
(Felts Aff. Encl. B, at 9, ECF No. 56-4.) Ballance refused to
sign this form. Accordingly, officials inventoried his
personal property and placed it in storage.
Release of Liability Form is only required for personal
property items, including books, newspapers, magazines,
clothing, and electronics. Officer Felts states in his affidavit,
and the property inventory form also indicates, that assorted
commissary items, paperwork, and hygiene items were issued to
Ballance on December 3, despite his refusal to sign the form.
Ballance denies that he received any of his personal hygiene
items on December 3, 2013. He avers that his mother
"paid other inmates" to buy hygiene items for him.
(Ballance Aff. ¶ 5, at 2, ECF No. 61-8.) He asserts that
for 805 days, from December 3, 2014, until February 17, 2016,
RNCC officials did not allow him to possess hygiene items. In
July 2015, Ballance submitted a request for an indigent
hygiene packet (containing toothbrush, toothpaste, shampoo,
deodorant, comb, razor, and bar soap) that was approved, but
he states that "Felts refused to give it to him."
(Id. ¶ 7.) It is undisputed that Ballance did
not make other requests for indigent hygiene packets.
Ballance could not possess the personal legal research and
writing materials he had acquired before his arrival at RNCC
without signing the release form, defendants state that he
was allowed to receive and possess court documents, and
Ballance has not disputed this fact. He also had access to
the RNCC law library for legal research and could apply for
indigent correspondence/legal packets that include pens,
typing paper, carbon paper, envelopes, and a limited amount
of postage. Institutional records indicate that Ballance was
scheduled to attend the law library on at least 140 occasions
during his confinement at RNCC, sometimes twice in one
RNCC records also reflect that Ballance mailed 28 legal mail
items in 2015 and 21 legal mail items in January and February
August 12, 2015, Warden Walrath ordered an intensive
interdiction at RNCC after receiving reliable information
about potentially dangerous contraband on the compound.
During this interdiction, all inmates were moved from the
chow hall to the gymnasium, located approximately 100 yards
away. They were instructed to place their hands on their
heads while they were moved from one location to the other.
Once inside the gymnasium, the inmates were permitted to
either stand or sit on the wood floor of that facility during
the time their housing unit was being inspected. Walrath
states that he "never told Ballance that he would be
punished if he ate food provided at [RNCC] or that he would
be punished until he complie[d] with [VDOC] policies and
'waive[d] his right of access to the court.'"
(Walrath Aff. ¶ 12, ECF No. 56-1.)
was transferred to Green Rock Correctional Center
("Green Rock") in February of 2016. Once again, he
refused to sign the Release of Liability form. After
withholding his property items for a week, Green Rock staff
located a Release of Liability form signed by Ballance in
2005 that had no expiration date. The wording of the
pertinent paragraphs of this waiver form is nearly identical
to those paragraphs in the 2013 release form that Ballance
refused to sign. The 2005 release form does not expressly
mention the $50.00 liability limit, but states that
"[t]he liability of the [VDOC] shall be limited to the
amounts specified" by the property policy. (Hiatt Aff.
Encl. A, at 3, ECF No. 56-3.) In reliance on this signed
Waiver of Liability Form, staff then released Ballance's
personal property items to him, and his personal property
items being stored at RNCC were shipped to him at Green Rock.
Ballance states, "At no time have I ever signed a
Release of Liability form." (Ballance Aff. ¶ 5, at
2, ECF No. 61-10.)
state that ten percent of Ballance's income has been, and
continues to be, placed in a holding account during his
confinement at RNCC and at other VDOC prisons. Under Virginia
Code Annotated § 53.1-43.1 and VDOC OP 802.2, governing
inmate finances, VDOC officials must withhold and deposit
"10 percent of any funds received by an inmate from any
source" in that inmate's "personal trust
account until the account has a balance of $1, 000." Va.
Code Ann. § 53.1-43.1. This withholding requirement does
not apply to any inmate who is sentenced to death, to life
without the possibility of parole, or to "a term that
makes him ineligible for release, excluding the conditional
release of geriatric prisoners pursuant to § 53.1-
40.01, prior to 75 years of age." Id.
"Funds in an inmate's personal trust account shall
be paid to the inmate upon parole or final discharge."
Ballance is eligible for discretionary parole, the VDOC will
continue to automatically withhold ten percent of his
incoming funds until the savings account exceeds $1, 000.
When defendants filed their motion, Ballance's trust