United States District Court, E.D. Virginia, Richmond Division
E. Payne, Senior United States District Judge.
matter is before the Court on the MOTIONS TO DISMISS of
Defendants T. Darden, Gregory Holloway, Eddie Pearson, and
Harold Clarke (the "Motion") (ECF No.
For the reasons set forth below, the MOTIONS TO DISMISS (ECF
No. 14) will be granted without prejudice and with leave to
file a Second Amended Complaint.
Rowe ("Rowe"), a Virginia state prisoner,
filed this action under 42 U.S.C. § 1983 against five
Defendants, who are current or former employees of the
Virginia Department of Corrections ("VDOC").
See generally AMENDED COMPLAINT (ECF No.
According to the AMENDED COMPLAINT, Harold Clarke
("Clarke") is the Director of VDOC; T. Darden
("Darden") is the warden at Sussex II; M. Carpenter
("Carpenter") is an investigator at VDOC; Gregory
Holloway is the Eastern Regional Administrator for
VDOC; and Eddie Pearson is the former warden at Greensville.
See Am. Compl. ¶¶ 6-10. All five
Defendants were sued in their individual capacities. See
asserts that he "is a politically conscious prisoner
who, among other things, writes essays regarding prison life,
often critical of the prison administration." Am. Compl.
¶ 11. Rowe alleges that two of these essays,
"Sussex 2 State Prison is a Potemkin Prison" and
"Life at Sussex 2 State Prison - Revisited"
(hereinafter, the "essays") were censored pursuant
to VDOC Operating Procedure 803.1, which pertains to Offender
Correspondence. See id. ¶¶ 12-15.
Rowe alleges that the two essays were "inspected by
Defendant Carpenter who recommended that they be censured
[sic]"; that Rowe "grieved this censorship but was
told both by the warden, Defendant Darden and then the
regional director, Defendant Halloway [sic], simply that the
grievance was unfounded as the conduct of prison officials
was in conformity with OP 803.1"; that "[n]o other
information was provided to Plaintiff regarding the reasons
for the censorship"; and that the essays did not involve
"escape plans, coded information, criminal activity or
anything else that threatened the security or order of the
prison." Am. Compl. ¶¶ 16-19. According to
Rowe, the "only conceivable reason for the censorship of
these two essays was a desire on the part of Defendants to
prohibit criticism of their facility." Id.
claim is that the Defendants violated his First Amendment
rights under the United States Constitution. See id.
¶¶ 21-24. He seeks a declaratory judgment that the
censorship of these essays violated his First Amendment
rights; a preliminary and permanent injunction against future
censorship, unless the correspondence poses a threat to
prison security or order; damages; and attorney's fees.
See id. at 4 (prayer for relief).
four of the five Defendants-Darden, Holloway, Pearson, and
Clarke-filed the MOTIONS TO DISMISS (ECF No. 14) pursuant to
Fed.R.Civ.P. 12(b)(1) and 12(b)(6). The Court has considered the
AMENDED COMPLAINT (ECF No. 6), the MOTIONS TO DISMISS (ECF
No. 14), and the supporting and opposing memoranda thereto
(ECF Nos. 15, 16, 17) . The Court dispenses with oral
argument because the facts and legal conclusions are
adequately presented in the materials and oral argument would
not aid in the decisional process. Thus, the matter is ripe
STANDARDS GOVERNING FED. R. CIV. P. 12(b)(1) and
Court recently set forth the well-established principles
governing Rule 12(b)(1):
A party may file a motion to dismiss for lack of subject
matter jurisdiction under Fed.R.Civ.P. 12(b)(1). If a court
finds that it does not have subject matter jurisdiction over
the case or controversy, it must dismiss the action. Of
course, the plaintiff bears the burden of establishing that
federal jurisdiction is proper.
Challenges to subject matter jurisdiction may be made in two
ways. First, a facial challenge to jurisdiction may be made
by arguing that the complaint does not allege facts that
permit the exercise of federal subject matter jurisdiction.
If that type of challenge is raised, the court must assume
that all facts alleged in the complaint are true. Second, the
challenge can be made under the theory that the
complaint's assertion of subject matter jurisdiction is
not true. In that event, a court may consider evidence
outside the pleadings.
Andrews v. Taylor, No. 3:17-cv-533, 2018 WL 2108022,
at *2 (E.D. Va. May 7, 2018) ...