United States District Court, W.D. Virginia
Glen E. Conrad Senior United States District Judge
plaintiff, Dontaz Latray Wilkerson, a Virginia inmate
proceeding pro se, filed this civil rights action under 42
U.S.C. § 1983, alleging that prison officials imposed a
harsher visitation restriction on him than on other inmates,
in violation of his constitutional rights. After review of
the record, the court concludes that the defendants'
motion to dismiss must be granted.
is, and has been, confined at River North Correctional Center
("RNCC") for several years. On March 11, 2016,
Warden Walrath notified Wilkerson that he had been placed on
non-contact visitation restriction permanently after
Wilkerson was accused of soliciting a visitor to bring drugs
into RNCC. See V.S. Ex. 6, ECF No. 2. Wilkerson filed a
regular grievance that the institutional ombudsman ruled
unfounded. On appeal, Regional Administrator Elam upheld the
visitation restriction, but reduced its duration to five
years. After the restriction took effect, a disciplinary
hearing officer found Wilkerson guilty of offense code
138/198a- conspiracy to breach the security perimeter with
contraband. Evidence at the hearing came from an
investigation of a letter Wilkerson had mailed to an outside
visitor. The hearing officer imposed a disciplinary penalty
of cell restriction for 30 days.
support of his amended complaint, Wilkerson submits
affidavits from two other inmates who have had their
visitation privileges restricted in the past at RNCC. After
Kevin Small was found guilty of disciplinary offense code
122c-being under the influence of drugs, he lost thirty days
of commissary privileges. Small was also "given an
enhanced penalty pursuant to operating procedure of placement
on non-contact visitation restriction for 6 months." Am.
Compl. Ex. 1, ECF No. 15-1. Inmate Eugene Williams, Jr., was
found guilty of offense code 122a/198a-conspiracy to possess
unauthorized drugs. His penalties related to this offense
included 60 days of telephone restriction and non-contact
visitation for six months.
sues Walrath and Elam under § 1983. He contends that
Walrath imposed a more harsh visitation restriction on him
than was imposed on inmates Small and Williams, in violation
of equal protection; that this restriction far exceeded the
visitation restriction penalties authorized under prison
policy for Wilkerson's disciplinary offense; and that
Elam knew of, but failed to correct, this equal protection
violation. As relief, Wilkerson seeks compensatory and
punitive damages and injunctive relief enjoining the
defendants from enforcing the five-year visitation
restriction. The defendants have filed a motion to dismiss,
and Wilkerson has responded, making the motion ripe for
district court should dismiss a complaint under Rule 12(b)(6)
if, accepting all well-pleaded factual allegations in the
complaint as true and drawing all reasonable factual
inferences in the plaintiffs favor, the complaint does not
allege "enough facts to state a claim to relief that is
plausible on its face." Bell Atl. Corp. v.
Twomblv. 550 U.S. 544, 570 (2007). "[A] plaintiffs
obligation to provide the grounds of his entitlement to
relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do." IcL at 555.
state a claim under § 1983, a plaintiff must allege
"the violation of a right secured by the Constitution
and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of
state law." West v. Atkins. 487 U.S. 42, 48
(1988). Notably, a plaintiff must sufficiently allege a
defendant's personal act or omission leading to a
deprivation of a federal right. Vinnedge v. Gibbs.
550 F.2d 926, 928 (4th Cir. 1977) ("The doctrine of
respondeat superior has no application" in § 1983
action). For supervisory prison officials to be held liable
under § 1983 for constitutional injuries inflicted by
their subordinates, an inmate must establish that: (1) the
supervisor had actual or constructive knowledge that his
subordinate was engaged in conduct that posed a
"pervasive and unreasonable" risk of constitutional
injury; (2) the supervisor's response to this knowledge
was so inadequate as to show "deliberate indifference or
tacit authorization" of the offensive practices; and (3)
there was an "affirmative causal link" between the
supervisor's inaction and the particular constitutional
injury suffered. Shaw v. Stroud. 13 F.3d 791, 799
(4th Cir. 1994).
defendants argue that Wilkerson's amended complaint fails
to state how either of them was personally involved in it.
Liberally construing Wilkerson's submissions, the court
cannot agree. Wilkerson's amended complaint clearly
asserts that he was treated more harshly than other inmates
who have possessed drugs or tried to bring them into the
prison-a contention that must be construed as an attempted
equal protection violation claim. Moreover, taking
Wilkerson's allegations as true, both Walrath as warden
and Elam as a regional administrator are supervisory
officials who imposed or knew about the visitation
restriction imposed on him and had authority to eliminate or
to make it consistent with other inmates' visitation
restrictions. Thus, the court cannot dismiss the complaint
for the defendants' asserted reasons. For other reasons,
however, the court concludes that the motion to dismiss must
initial matter, Wilkerson has no viable § 1983 claim
based on his allegation that the permanent or five-year
non-contact visitation restriction violated the prison
disciplinary policy. See Riccio v. Ctv of Fairfax,
907 F.2d 1459, 1469 (4th Cir. 1990) (holding that state's
failure to abide by its own procedural regulations is not a
federal due process issue); Edwards v. Johnson, 209
F.3d 772, 779 (5th Cir. 2000) (holding that alleged violation
of prison's visitation policy provides no basis for
constitutional claim). Therefore, the court must dismiss any
claim based on a violation of the disciplinary
Equal Protection Clause of the Fourteenth Amendment declares
that "[n]o State shall . . . deny to any person . . .
the equal protection of the laws." U.S. Const., amend.
XIV, § 1. This provision does not altogether forbid
states from classifying individuals; rather it "keeps
governmental decisionmakers from treating differently persons
who are in all relevant respects alike." Nordlinger
v. Hahn. 505 U.S. 1, 10 (1992).
To succeed on an equal protection claim, a plaintiff must
first demonstrate that he has been treated differently from
others with whom he is similarly situated and that the
unequal treatment was the result of intentional or purposeful
discrimination. Once this showing is made, the court proceeds
to determine whether the disparity in treatment can be
justified under the requisite level of scrutiny.
Kerr v. Marshall Univ. Bd. of Governors. 824 F.3d
62, 82 (4th Cir. 2016). "The burden, moreover, is not on
the State to prove the validity of prison regulations but on
the prisoner to disprove it." Overton v.
Bazzetta.539 U.S. 126, 132 (2003). The court cannot
find that Wilkerson has ...