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Rowe v. Clarke

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

June 13, 2019

UHURU ROWE, Plaintiff,
HAROLD C. CLARKE, et al., Defendants.


          Robert E. Payne, Senior United States District Judge.

         This 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. 14).[1] 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.


         Uhuru Rowe ("Rowe"), a Virginia state prisoner, [2] 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. 6).[3] 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[4] 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 id.

         Rowe 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.

         Specifically, 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. ¶ 20.

         Rowe's 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).

         Thereafter, 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).[5] 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 for decision.

         THE STANDARDS GOVERNING FED. R. CIV. P. 12(b)(1) and 12(b)(6)

         The 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) ...

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