United States District Court, E.D. Virginia, Roanoke Division
PHILLIP S. WOHLFORD, KEVIN BALLANCE, Plaintiffs,
MELVIN DAVIS, ET AL., Defendants.
E. CONRAD SENIOR UNITED STATES DISTRICT JUDGE
S. Wohlford and Kevin Ballance, proceeding pro se, filed this
civil rights action as co-plaintiffs pursuant to 42 U.S.C.
§ 1983, complaining about prison officials'
interference with their constitutional rights to write a book
together. After review of the record, the court concludes
that the § 1983 claims against defendants in this
district must be summarily dismissed. The court will,
however, grant plaintiff Ballance's motion to amend to
raise a state law claim based on events that occurred here.
Finally, the court will sever the claims against defendants
located in the United States District Court for the Eastern
District of Virginia and transfer them to that court.
plaintiffs allege the following sequence of events giving
rise to their claims. For several years, Ballance, a Virginia
inmate, has been compiling a book manuscript that includes
photographs. Wohlford operates a home business in the
Roanoke area called Typing and Inmate Services. Ballance
promised him a third of the "gross sales" from the
book when it is published, and in exchange, Wohlford has been
assisting Ballance with research and printing for the book,
among other things. Compl. 4, ECF No. 1. On November 27,
2017, while Ballance was incarcerated at Green Rock
Correctional Center ("GRCC"), he was told to pack
up his personal property for a transfer to another Virginia
Department of Corrections ("VDOC") facility, Sussex
I State Prison ("Sussex I"). He gathered his things
and reported to the property office. There, Officer Naff
"discovered the book manuscript... and told Ballance
that he was going to sign a paper saying that he can destroy
the book manuscript." Id.. Ballance submits a
copy of this form, entitled Notice of Confiscation of
Property, and dated November 27, 2017. It states: "This
is to notify you that the below listed personal property is
contraband/unauthorized for possession by you and is subject
to confiscation by the facility." Compl. Exh. 5, ECF No.
1-1. The confiscated items are described as "22 homemade
photo albums," the reason noted for seizure is
"contraband," and the current location is noted as
"storage." Id. Naff signed and dated the
form. Someone wrote on the, offender signature line
"Refused to Sign," and Officer Marion signed as a
witness to that fact.
confiscation form also describes an inmate's opportunity
to file a grievance about the confiscation of the items:
You may appeal through the Offender Grievance ... Procedure.
To be considered, your written Offender Grievance ... must be
submitted within 7 days of receipt of this notice. This
confiscation notification completes the informal process of
the Offender Grievance Procedure. You must provide staff with
evidence of your ownership of any items you claim should not
Id. Another section on the form is titled:
"ITEMS FOR WHICH THE OFFENDER HAS ESTABLISHED
OWNERSHIP." Id. According to the form, if an
inmate establishes ownership of items that he is not
authorized to possess at the facility, officers must provide
him with a property disposition form, which he must complete
and return to the property department within five days. If he
fails to do so, "the property will be confiscated and
disposed of by the facility." Id.
plaintiffs allege that "the VDOC [has been] after
Ballance's book manuscript" and that all of the
defendants in this lawsuit conspired to accomplish that goal.
Id. at 5-6. Ballance filed an earlier lawsuit about
an incident in December 2013, when the manuscript was
confiscated in conjunction with his transfer from one VDOC
prison to another. See Ballance v. Clarke. No.
7.15CV00645, 2017 WL 1169747 (W.D. Va. Mar. 28, 2017).
Ballance now alleges that on that occasion, he refused to
sign a form, officials took the manuscript, and later,
officials at GRCC returned it to him. Compl. 7-8, ECF No. 1.
In November 2017, Ballance attempted the same tactic and
refused to sign the form. Naff and Marion, along with Officer
Crumpler and Mrs. Sims, tried to convince him to sign.
Officer Davis "refused to intervene." Id.,
at 5. Ultimately, the book manuscript was destroyed in
January 2018. See id.
inmate is transferred from one VDOC prison facility to
another, only one box of personal property items travels with
him. Any excess property items are placed in boxes, and the
inmate must pay the shipping costs to have them forwarded to
the new facility. On November 27, 2017, Ballance signed a
form, authorizing payment from his inmate trust account to
ship his boxes of excess personal property to S1SP. See Obj.
6, ECF No. 43. Nevertheless, some boxes of his excess
property items were not shipped to him and were ultimately
destroyed. Officials have indicated to him that the boxes
were destroyed because he did not, in fact, sign
authorization for the shipping costs. Id.
also complains that the defendants took or destroyed several
books that he valued. Compl. 8, ECF No. 1. These books were not
confiscated as contraband, and he received no paperwork about
them. He contends that this deprivation occurred as
"punishment," because he refused to sign the
confiscation notice about his book manuscript. Id.
"[a]s punishment for refusing to allow the defendants to
take the movie book manuscript, Marion and Crumpler denied
Ballance access to" some books. Id. at 13.
Specifically, they "denied Ballance access to an
approved book by the Publications Review Committee
("PRC"). They [refused] to forward two books on
appeal to Harold Clarke, and they [refused] to send a book to
the PRC." Id., Ballance identifies these books,
respectively, as Ten Southeast Asian Tribes
(allegedly stolen by Marion and Crumpler); two books on nude
beaches and resorts (allegedly destroyed by these
defendants); the 2008 version of 1001 Movies You Must See
before You Die (stolen by these defendants); and
Exposed (not mailed to the PRC). Id. at
14-18. The PRC has approved the 2012 version of 1001
Movies You Must See before You Die, which Ballance
characterizes as an inconsistent application of VDOC
anti-nudity policy for incoming publications.
Ballance arrived at ¶ 1SP, Ballance "tried to push
forward with the book." Id. at 12. He received
one box of his excess personal property from GRCC that was
accidently sent with another inmate. Id. at 10.
Included in that box was an "illus[t]ration list"
for the book, so Ballance and Wohlford "worked on
that." Id. at 12. "But once S1SP
discovered that Ballance and Wohlford were still working, Lt.
Mayo and Sgt. Ev[a]ns were sent to Ballance's cell to
take any movie information they could find by Spencer and
Zook. They took the movie list and the proof sheets that
Ballance had received in the mail from Wohlford."
at S1SP also began denying Ballance the commercial proof
sheets of photographs that Wohlford mailed to him for the
book. Although Wohlford has a home business, officials
classified the photographs he mailed to Ballance as personal
photographs and "denied them." Id. No. one
notified Wohlford that his mail was being stopped.
and Wohlford both signed the verified § 1983 complaint
on January 11, 2018, suing the following individuals: Davis,
Crumpler, Marion, Naff, and Sims ("GRCC
defendants"); Zook, Mayo, Evans, and John Doe/Spencer
("S1SP defendants"); and David Robinson and Harold
Clarke, both VDOC administrators ("administrative
defendants"). Liberally construing the plaintiffs'
submissions, they allege the following claims for relief: (1)
the GRCC defendants destroyed Ballance's manuscript to
punish or retaliate against him for exercising his First
Amendment right to write a book; (2) because Ballance refused
to sign the confiscation form regarding the manuscript, the
GRCC defendants destroyed several boxes of Ballance's
personal property and prevented him from possessing several
books; (3) the administrative defendants allowed the PRC to
apply the anti-nudity policy inconsistently regarding
inmates' incoming publications; (4) the S1SP defendants
conspired with GRCC defendants to confiscate additional
materials from Ballance related to his book manuscript; and
(5) S1SP defendants interfered with correspondence between
the two plaintiffs, despite Wohlford's status as a home
business. Legally, the plaintiffs contend that the defendants
violated their rights under the First, Fifth, and Fourteenth
Amendments to the Constitution. As relief, the plaintiffs
seek unspecified injunctive relief, as well as compensatory
and punitive damages and costs.
GRCC defendants have moved for summary judgment, and the S1SP
defendants have moved for severance and transfer of the
claims against them to the Richmond Division of the United
States District Court for the Eastern District of Virginia,
an action to which the plaintiffs have objected. Ballance has
also filed a motion to amend to add a supplemental state law
claim alleging breach of contract by the administrative
Summary Dismissal Standard of Review.
state a cause of action under § 1983, a plaintiff must
establish that he has been deprived of rights guaranteed by
the Constitution or laws of the United States and that this
deprivation resulted from conduct committed by a person
acting under color of state law. West v. Atkins, 487
U.S. 42 (1988). "The court shall on its own motion ...
dismiss any action brought with respect to prison conditions
under [42 U.S.C. § 1983] by a prisoner ... if the court
is satisfied that the action is frivolous, malicious, [or]
fails to state a claim upon which relief can be
granted." 42 U.S.C. § l997e(c)(1). To avoid
dismissal, a complaint must plead facts sufficient to
"state a claim to relief that is plausible on its
face" Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). "[A] pleading that offers labels and
conclusions or a formulaic recitation of the elements of a
cause of action will not do. Nor does a complaint suffice if
it tenders naked assertions devoid of further factual
enhancement." Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). (internal citations and quotation marks
First Amendment right to free speech includes not only the
affirmative right to speak, but also the right to be free
from retaliation by a public official for the exercise of
that right." Suarez Corp. Indus, v. McGraw. 202
F.3d 676, 685 (4th Cir. 2000). To succeed on their First
Amendment retaliation claims,  the plaintiffs must show that (1)
they engaged in constitutionally protected speech, (2) the
defendants took retaliatory action that adversely affected
their protected speech, and (3) "a causal relationship
exists between [their] speech and the [defendants']
retaliatory action." Tobey v. Jones, 706 F.3d
379, 387 (4th Cir. 2013). Because many actions by prison
officials are "by definition 'retaliatory' in
the sense that [they are ...