United States District Court, W.D. Virginia, Danville Division
Jackson L. Kiser Senior United States District Judge
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.
STATEMENT OF FACTS AND PROCEDURAL
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.)
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.
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].)
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.”
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.)
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.
STANDARD OF REVIEW
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).
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).
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.
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. 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
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
Motions to Dismiss
claims will be addressed based on the class of defendants:
probation officers, jail personnel, medical personnel, DBHDS