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Hairston v. Draper

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

March 14, 2019

STEVE DRAPER, et al., Defendants.


          Hon. Jackson L. Kiser Senior United States District Judge

         This matter is before the court on Defendants' various motions to dismiss [ECF Nos. 32, 34, 39, 42, 55, 56, 64], Plaintiff's Motion to Reconsider Appointment of Counsel [ECF No. 78], and Plaintiff's Motion for Leave to File an Amended Complaint [ECF No. 79]. After extensive briefing by all the parties on all the motions under consideration, I instructed the parties that the pending motions would be decided on brief. (Order, Sept. 4, 2018 [ECF No. 75].) I have fully reviewed Plaintiff's Complaint, as well as the briefs and arguments of the parties. For the reasons stated herein, Plaintiff's Complaint will be dismissed.


         Plaintiff Jerry Lee Hairston (“Plaintiff”) has been designated a sexually violent predator (“SVP”) under Virginia law. See Va. Code Ann. § 37.2-900 et seq. (2018). In October 2011, Plaintiff was civilly committed to the Virginia Department of Behavioral Health and Developmental Services (“DBHDS”) for control, care, and treatment, pursuant to Va. Code Ann. § 37.2-900, et seq. Approximately four years later, Plaintiff was conditionally released. See Id. § 37.2-910(A). As a condition of his release, the Circuit Court for the City of Martinsville imposed certain conditions on Plaintiff. (See Order, Commonwealth v. Hairston, Case #10000087-00, Oct. 14, 2015 [ECF No. 40-2].) His attorney did not object to any provision of Plaintiff's conditional release order or plan. (See id.)

         On January 20, 2016, Plaintiff's probation officer, Defendant Timothy Wood, filed a petition with the Circuit Court, alleging that Plaintiff had violated several conditions of his conditional release; specifically, that Plaintiff tested positive for cocaine on January 8, 2016, and that he removed his GPS location monitoring device and absconded from supervision on January 20. (See Compl. Ex. A [ECF No. 2-1].) On the basis of the petition, an Emergency Custody Order was entered on January 20. (Id.) Plaintiff was taken into custody and held in the Martinsville City Jail pending a hearing.

         On August 24, 2016, Plaintiff was found to have violated the conditions of his release by the Circuit Court for the City of Martinsville. (See Order, Commonwealth v. Hairston, Case #10000087-00, Sept. 6, 2016 [ECF No. 40-3]. The court ordered that Plaintiff be held in the Martinsville City Jail until further order of the Court, pending a new conditional release plan. Plaintiff was ultimately released on November 10. (See Order, Commonwealth v. Hairston, Case #10000087-00, Nov. 10, 2016 [ECF No. 40-3].)

         On December 25, 2016, a second Emergency Custody Order was entered on a petition from Plaintiff's probation officer, Defendant Michele Whitlow (Compl. Ex. B), and Plaintiff was again taken into custody and held at the Martinsville City Jail. On May 19, 2017, Plaintiff's conditional release was revoked pursuant to Va. Code Ann. § 37.2-913. (See Order, Commonwealth v. Hairston, Case #10000087-00, May 19, 2017 [ECF No. 40-5].) As a result, Plaintiff was committed to the DBHDS “for appropriate control, care, and treatment in a secure inpatient facility designated by the Commissioner of DBHDS.” (Id.)

         The gravamen of Plaintiff's pro se Complaint is his contention that he was held “with dangerous felons and convicted felons” in the Martinsville City Jail during the pendency of his court proceedings rather than being delivered to a treatment facility run by DBHDS. (See, e.g., Compl. ¶¶ 17, 19, 20, 22, 23.) This, he contends, violated the Virginia SVP statute and his constitutional rights. (Compl. ¶ 22.) He generally alleges that those who could have terminated his detention failed to do so in a timely manner (i.e., Defendant William E. Winters with the Virginia Attorney General's Office, “was aware that Hairston had been in the Martinsville City Jail [for nearly 8 months . . . but] did not correct the punitive situation” (Compl. ¶¶ 26-27)), and that his conditions while in confinement were intolerable. For example, he alleges that, on several occasions, he was housed in overcrowded units. (See, e.g., id. ¶ 33.)

         Plaintiff filed a pro se Complaint in this court on May 10, 2018, naming Timothy Wood (probation officer), Michele Whitlow (same), Tonya Hairston (sergeant at Martinsville jail), Robin Accord (same), M. Spence (captain at the Martinsville jail), Davis (same), C. Preston (lieutenant at the Martinsville jail), James Steward (commissioner or interim commissioner of DBHDS), Jack Barber (same), William Winters (assistant attorney general for Virginia), Dennis Carpenter (clinical psychologist with DBHDS), and Steve Draper (“Sheriff of Martinsville City Jail”), as defendants. All defendants have filed motions to dismiss, Plaintiff has responded, and Defendants have replied. There are also various other motions pending, including Plaintiff's motion for leave to file an amended complaint. I instructed the parties that I would review all the pleadings and rule on the motions without argument. [ECF No. 75.] Having reviewed all the pleadings and the relevant legal authority, the matter is now ripe for disposition.


         Plaintiff, who is proceeding pro se, is entitled to a certain level of deference in his pleadings by virtue of her status as an unrepresented litigant. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, “the requirement of liberal construction [of pleadings for pro se parties] does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim . . . .” Knowles v. S. C.D.C., No. 2:09-1921-MBS, 2010 WL 2990157, at *3 (D.S.C. July 29, 2010).

         When a challenge to subject matter jurisdiction is raised under Rule 12(b)(1), “the burden of proving subject matter jurisdiction is on the plaintiff.” Richmond, Fredericksburg & Potomac R. Co. v. U.S., 945 F.2d 765, 768 (4th Cir. 1991) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). “In determining whether jurisdiction exists, the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Id. “The court must grant the motion ‘only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.'” Little v. Stock Bldg. Supply, LLC, No. 4:10-cv-129, 2011 WL 5146179, at *3 (E.D. N.C. Sept. 2, 2011) (quoting Richmond, 945 F.2d at 768).

         To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In determining facial plausibility, the court must accept all factual allegations in the complaint as true. Id. The Complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief” and sufficient “[f]actual allegations . . . to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (internal quotation marks omitted). Therefore, the Complaint must “allege facts sufficient to state all the elements of [the] claim.” Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003). Although “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ” a pleading that merely offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.


         Two salient points of law need to be discussed at the outset. First, violations of state laws or rules of procedure, in and of themselves, do not state a claim under 42 U.S.C. § 1983.[2] See Weller v. Dep't of Soc. Servs. for City of Baltimore, 901 F.2d 387, 392 (4th Cir. 1990) (“[I]t is well settled that violations of state law cannot provide the basis for a due process claim.”); Campbell v. Angelone, No. 7:01cv01023, 2004 WL 5310019, at *10 (W.D. Va. Apr. 16, 2004) (“To the extent that this allegation can be construed as one alleging a failure to follow institutional policy or state procedure, such violations of state procedural law do not implicate federal due process rights and are not cognizable under § 1983.”) This is so because § 1983 creates a civil right of action against those who violate federal constitutional or statutory rights. See 42 U.S.C. § 1983 (2018). Therefore, unless an alleged violation of the Virginia SVP statute by a named defendant also violated Plaintiff's federal constitutional or statutory rights, it is not actionable in this court.

         Second, Plaintiff's entire Complaint is premised on his argument that, because he was not “segregated by sight and sound at all times from prisoners in the custody of a correctional facility, ” Va. Code Ann. § 37.2-909, his constitutional rights were violated. Even assuming that he has claimed a liberty interest protected by the federal constitution, see, e.g., King v. Smith, No. 3:12CV12, 2014 WL 4365464, at *8-9 (E.D. Va. Sep. 2, 2014), by its terms, § 37.2-909 only applies to those who have been “committed” pursuant to the Virginia SVP statute. Plaintiff's allegations establish that, during his detention, he had not been committed as an SVP; rather, he was being held on an emergency custody order for violating the terms of his conditional release. See id. § 37.2-913. It is vital to note that the restrictions found in § 37.2-909 regarding custody of those committed are omitted from § 37.2-913, which governs holding those accused of violating the terms of their conditional release. Plaintiff was plainly in custody pursuant to the latter.[3]

         A. Motions to Dismiss

         Plaintiff's claims will be addressed based on the class of defendants: probation officers, jail personnel, medical personnel, DBHDS officials, ...

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