United States District Court, W.D. Virginia, Roanoke Division
Jackson L. Kiser Senior United States District Judge
King Milano Hairston EL,  a Virginia inmate proceeding pro se,
filed a complaint pursuant to 42 U.S.C. § 1983 naming
three defendants: J-Pay, Inc. ("J-Pay"), the
Virginia Department of Corrections ("VDOC"), and
the Commonwealth of Virginia. Plaintiff presents twenty-one
claims in the complaint related to J-Pay's design and
implementation of the J-Pay media controller allowed in
Plaintiffs prison. Plaintiff faults J-Pay for various
"breach of contract" and "cruel and unusual
punishment" claims because J-Pay "corner[ed] the
market" in VDOC prisons as an exclusive provider or
facilitator of paid digital content. Plaintiff complains
J-Pay "illegally" uses Plaintiffs
"tradename" and has frustrated his ability to
e-mail family members and to access purchases. Plaintiff seeks,
inter alia, $100, 000 in damages.
dismiss any action or claim filed by an inmate if I determine
that the action or claim is frivolous, meaning it is 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); see
28 U.S.C. §§ 1915(e)(2), l9l5A(b)(1); 42 U.S.C.
complaint must be dismissed as frivolous. Plaintiffs
dissatisfaction with J-Pay's policies, practices, or
costs involving its media player does not implicate a
deprivation of a federal right. See, e.g.. West
v. Atkins. 487 U.S. 42, 48 (1988).
does not have a federal right to make voluntary purchases
from a commissary or digital provider, even if Plaintiff
believes the costs are above market rates. See,
e.g., Tokar v. Armontrout. 97 F.3d 1078, 1083
(8th Cir. 1996) ("[W]e note that we know of no
constitutional right of access to a prison gift or snack
shop... ."); French v. Butterworth, 614 F.2d
23, 25 (1st Cir. 1980) (recognizing the Constitution does not
require prices to be near cost for discretionary inmate
purchases); Hopkins v. Keefe Commissary Network
Sales, No. 07-745, 2007 U.S. Dist. LEXIS 50961, at *l-3,
2007 WL 2080480, at *5 (W.D. Pa. July 12, 2007) (holding no
right to restrain commissary from charging even exorbitant
prices); Pepper v. Carroll, 423 F.Supp.2d 442, 449
(D. Del. 2006) (holding that inmate has no constitutionally
protected right to purchase commissary items as cheaply as
possible); Rodriguez v. Swanson Servs. Corp., No.
01-117-P-C, 2001 U.S. Dist. LEXIS 6328, at *2-4, 2001 WL
506871 at *1 (D. Me. May 11, 2001) (holding commissary
pricing does not implicate constitutional concerns);
Trujillo v. Young, No. 7:02-cv-01083, 2003 U.S.
Dist. LEXIS 27756, at *3, 2003 WL 23312781, at *3 (W.D. Va.
June 5, 2003) (holding that inmate has no protected right to
purchase commissary items at low prices).
reliance on labels and buzzwords, the United Nations'
Universal Declaration of Human Rights, and the Thirteenth
Amendment is indisputably meritless. See, e.g., U.S.
Const. Amend. XIII, § 1; Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007); Sosa v.
Alvarez-Machain. 542 U.S. 692, 734 (2004).
allegation that a person under color of state law has not
followed a state's independent policies or procedures
cannot state an actionable claim under § 1983. See
United States v. Caceres. 440 U.S. 741,
752-55 (1979); 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
allegation that a person under color of state law
intentionally or negligently deprived an inmate of property
while acting outside the scope of official policy or custom
cannot state an actionable claim under § 1983 if a
meaningful post-deprivation remedy is available. Hudson
v. Palmer, 468 U.S. 517, 533 (1984); Parratt v.
Taylor, 451 U.S. 527, 538-39 (1981), overruled
in irrelevant part by Daniels v. Williams,
474 U.S. 327, 330-31 (1986); cf Perry v. JPAY, Inc.,
No. 7:16-cv-00362, 2018 U.S. Dist. LEXIS 40581, at *15, 2018
WL 1309743, at *5 (W.D. Va. Mar. 13, 2018) (holding J-Pay was
not acting under color of state law for merely facilitating
digital purchases within the VDOC). Plaintiff possesses a
post-deprivation remedy under Virginia law via the Virginia
Tort Claims Act ("VTCA"). Va. Code
§§8.01-195.3, et seq. "Section 1983
was intended to protect only federal rights guaranteed by
federal law, and not tort claims for which there are adequate
remedies under state law." Wright v. Collins,
766 F.2d 841, 849 (4th Cir. 1985). Therefore, Plaintiff
cannot prevail under § 1983 based on an alleged property
loss actionable under VTCA. See Artis v. Mapp, No.
91-6016, 1991 U.S. App. LEXIS 7122, at *1, 1991 WL 61299, at
*1 (4th Cir. Apr. 24, 1991) (per curiam) (affirming with the
modification that an inmate's complaint about the
state's deprivation of his property is frivolous because
of availability of a post-deprivation remedy).
the Commonwealth of Virginia nor the VDOC is a
"person" for purposes of 42 U.S.C. § 1983.
See, e.g.. Will v. Michigan Dep't of State
Police, 491 U.S. 58, 70 (1989) (stating states and
governmental entities that are considered arms of the state
are not persons under § 1983). To the extent Plaintiff
names Virginia pursuant to the VTCA, he may not proceed in
federal court and must pursue it in state court. See,
e.g.. Creed v. Virginia, 596 F.Supp.2d 930, 938
(E.D. Va. 2009).
I dismiss the complaint without prejudice as frivolous
because Plaintiff pursues indisputably meritless legal
theories against these defendants. See, e.g.,
Neitzke, 490 U.S. at 327; see also McLean v.
United States, 566 F.3d 391, 399 (4th Cir. 2009)
(dismissals without prejudice for frivolousness should not be
exempted from 28 U.S.C. § 1915(g)).
 Plaintiffs other moniker is Terrance
Milano Hairston. Plaintiff identifies as a "Sovereign
Moorish American, sui juris, " "Secured
Party/Creditor, " "Holder-in-due-course, " and
"Trade name owner/record owner." See,
e.g.. Murakush Caliphate of Amexem Inc. v. New
Jersey.790 F.Supp.2d 241, 242-46 (D.N.J. 2011)