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Ballance v. Clarke

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

March 28, 2017

KEVIN BALLANCE, Plaintiff,
v.
HAROLD CLARKE, ET AL., Defendants.

          MEMORANDUM OPINION

          Glen E. Conrad Chief United States District Judge

         Kevin 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.

         I. BACKGROUND

         A. Ballance's Evidence

         Ballance states the following sequence of events related to his claims.[1] 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."[2] (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.[3]

         Ballance 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.

         On 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.)

         Ballance 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.

         B. Defendants' Evidence and Ballance's Rebuttal

         Property 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, [4] 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 property.
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 my choice.

(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.

         The Release of Liability Form is only required for personal property items, including books, newspapers, magazines, clothing, and electronics.[5] 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.

         Although 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 day.[6] RNCC records also reflect that Ballance mailed 28 legal mail items in 2015 and 21 legal mail items in January and February of 2016.

         On 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.)

         Ballance 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.)

         Defendants 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[7] 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." Id.

         Because 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 ...


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