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Wohlford v. Davis

United States District Court, E.D. Virginia, Roanoke Division

March 20, 2019

PHILLIP S. WOHLFORD, KEVIN BALLANCE, Plaintiffs,
v.
MELVIN DAVIS, ET AL., Defendants.

          MEMORANDUM OPINION

          GLEN E. CONRAD SENIOR UNITED STATES DISTRICT JUDGE

         Phillip 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.

         I.

         The plaintiffs allege the following sequence of events giving rise to their claims.[1] For several years, Ballance, a Virginia inmate, has been compiling a book manuscript that includes photographs.[2] 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.

         The 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 be confiscated.

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.

         The 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.

         When an 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.

         Ballance also complains that the defendants took or destroyed several books that he valued.[3] 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. at 9.

         Allegedly "[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).[4] 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.

         After 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." Id.

         Officials 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.

         Ballance 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.

         The 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 defendants.

         II. A. Summary Dismissal Standard of Review.

         To 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).[5] (internal citations and quotation marks omitted).

         B. The GRCC Claims.

         1. Retaliation.

         "The 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, [6] 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 ...


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