United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Senior United States District Judge
plaintiff, Brian Pitsenbarger, a Virginia inmate proceeding
pro se, filed this civil rights action under 42 U.S.C. §
1983, alleging that prison officials caused him to serve a
longer term of confinement in violation of due process. He
has also moved for leave to supplement his complaint with
additional exhibits and argument, which the court will grant.
After review of the record, the court concludes that the
defendants' motion to dismiss the complaint as
supplemented must be granted.
claims are based on events that occurred when he was an
inmate a Cold Springs Correctional Unit. Liberally
construing Pitsenbarger's § 1983 amended complaint
and exhibits, he alleges that on September 19, 2017,
Defendants Perry and Alistock allowed Officer Randozzo to use
a hand-held drug testing device on Pitsenbarger, in violation
of Virginia Department of Corrections ("VDOC")
procedures. Under VDOC Operating Procedure ("OP")
841.5(111), a hand-held testing device was defined as
"[a] portable drug testing device, such as a test slide,
requiring no calibration or formal instrumentation."
Compl. Ex. A, ECF No. 1-1. OP 841.5(IV)(C)(2)(b) provided
that "[institutions are not authorized to use a hand
held testing device except" when staff observed physical
symptoms suggesting drug use or intoxication or on inmates
with certain medical conditions. Id. OP
845.1(IV)(C)(2)(e) identified an exception, stating that
"[h]and held testing devices may be used to test
particular substances," including Suboxone. Officer
Randozzo reported that the test performed on Pitsenbarger on
September 19, 2017, was positive for Suboxone. See
Compl. Ex. B, ECF No. 1-1. Although Pitsenbarger claimed that
he was taking medications that could cause a false positive
on a drug test, no one wrote this information down on a chain
of custody form. That same day, Randozzo charged Pitsenbarger
with a disciplinary offense of being under the influence of
an unprescribed drug.
disciplinary hearing on September 26, 2017, Defendant Houff
told Pitsenbarger that he could not have the "lab
results" from the test, as he had requested, although
there allegedly were no lab results. Am. Compl. 1, ECF No.
25. Houff found Pitsenbarger guilty of the offense, citing
the positive test results and testimony from Randozzo as the
evidence on which he had relied. Superintendent Redman
allegedly failed to respond to Pitsenbarger's appeal of
this outcome, thus depriving him of the opportunity to appeal
to the regional administrator.
denies that he had taken any unlawful substances on September
19, 2017. Thereafter, the Institutional Classification
Authority ("ICA") conducted a review of
Pitsenbarger's good time earning level with him present.
Mot. Am. Compl. Ex. D, ECF No. 25. Allegedly because of the
positive drug test, the ICA changed his good time earning
level from a 1 to a 2, which caused his projected release
date to be pushed back from October 15, 2019, to November 18,
2019. See Id. at 2, Ex. E (noting that
"projected dates are based on the assumption that the
offender will continue to earn good time at the present
earning level" and a future "change in good time
earning level... may cause the projected dates to
filed this § 1983 lawsuit in February 2018 against
Redman, Alistock, Perry, and Houff, seeking monetary and
injunctive relief. He complains that these defendants allowed
the use of results from a hand-held testing device as
evidence to support his drug-related disciplinary charge and
his classification change, in violation of prison policy and
due process. The defendants have filed a motion to dismiss,
and Pitsenbarger has responded, making the matter ripe for
district court should dismiss a complaint under Rule 12(b)(6)
of the Federal Rules of Civil Procedure if, accepting all
well-pleaded 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. Twombly, 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." Id. at
To 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
initial matter, Pitsenbarger has no viable § 1983 claim
based on allegations that the defendants violated prison
policy by allowing use of a hand-held testing device or by
allowing use of its results to support a disciplinary charge.
It is well established that state officials' alleged
violations of state policies and regulations are not
sufficient to support a claim that the plaintiff was deprived
of constitutionally protected rights. See Riccio v. Cty.
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). Thus, the
court must grant the motion to dismiss as to all claims that
the defendants violated prison rules.
§ 1983 claim that Redman deprived him of his right to
pursue a disciplinary appeal is also without merit. There is
no constitutional right to an appeal from the disciplinary
factfinder's decision. See, e.g., Westbrook v.
Koch. No. 1:16CV480 (LMB/IDD), 2017 WL 2589963, at *6
(E.D. Va. June 13, 2017), appeal dismissed. No.
17-6854, 2017 WL 6803019 (4th Cir. Sept. 5, 2017) ("[I]t
is widely recognized that an inmate has no right to appeal a
disciplinary board's decision.") (citing other
cases). Moreover, Pitsenbarger's own submissions to the
court indicate that Redman responded to his disciplinary
appeal on October 3, 2017. See Verif. Stmt. Attach. 5-6, ECF
No. 2. Redman upheld the finding of guilt, noting that the
drug test performed on Pitsenbarger on September 19, 2017,
was authorized under the prison's policy.
Pitsenbarger ultimately appealed Redman's ruling to the
regional administrator, who found no procedural errors and
upheld the guilty finding. PL's Ex. D, at 2, ECF No. 9.
primary contention is that all of the defendants allowed the
use of handheld test results to cause the one-month shift in
his release date, thus depriving him of a "liberty
interest" without due process. While having to serve
another month in prison is no small matter, the court cannot
find that Pitsenbarger received this adjustment to his term
of confinement in violation of his constitutional right to
Process Clause of the Fourteenth Amendment prohibits a state
from depriving "any person of life, liberty, or property
without due process of law." U.S. Const, amend. XIV,
§ 1. "To state a procedural due process violation,
a plaintiff must (1) identify a protected liberty or property
interest and (2) demonstrate deprivation of that interest
without due process of law." Prieto v. Clarke.
780 F.3d 245, 248 (4th Cir. 2015). "A liberty interest
may arise from the Constitution itself, by reason of
guarantees implicit in the word 'liberty,' or it may
arise from an expectation or interest created by state laws
or policies." Wilkinson v. Austin, 545 U.S.
209, 221 (2005) (citations omitted). To prove a protected
liberty interest here arising from a state law or regulation,
Pitsenbarger must identify (a) "a basis for an interest
or expectation in state regulations" that hand-held
testing devices will not be used in inmate drug testing; and
(b) show that "denial of this state-created interest
resulted in an atypical and significant hardship to
him." Prieto, 780 F.3d at 250. Only if
Pitsenbarger makes both showings does the Due Process Clause
require a particular measure of procedural protection before
he can be deprived of his liberty interest. Sandin v.
Conner, 515 U.S. 472, 484 (1995).
court concludes that Pitsenbarger has not made these
showings. First, the regulation in effect in September 2017
expressly authorized the use of a hand-held testing device to
test for Suboxone, the drug for which he tested positive.
Thus, this regulation did not create an expectation that the
results of a hand-held drug testing device ...