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Shell v. Boyd

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

September 30, 2019

ROBERT EDWARD LEE SHELL Plaintiff,
v.
HEATHER L. BOYD, ET AL., Defendants.

          MEMORANDUM OPINION

          Hon. Glen E. Conrad, Senior United States District Judge

         In this civil rights action under 42 U.S.C. § 1983, the plaintiff, Robert Edward Lee Shell, a Virginia Department of Corrections ("VDOC") inmate proceeding pro se, alleges that prison officials have violated his constitutional rights in various ways. After review of the record, the court will grant the defendants' motion for summary judgment as to the claims the motion addresses and grant them an opportunity to respond to the additional First Amendment claim that the court herein identifies in Shell's complaint.

         I. BACKGROUND

         A. Claims for Relief

         In Shell's Complaint, ECF No. 1, which is not sworn or signed under penalty of perjury, he asserts that his rights under the First, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution were violated by defendants VDOC Director Harold Clarke and four officials at Pocahontas State Correctional Center ("Pocahontas"): Warden Young, Assistant Warden Walz, Qualified Mental Health Professional Heather L. Boyd, and Institutional Hearings Officer Bandy. The defendants have construed Shell's pro se pleading as attempting to state these claims: (1) violations of the Fourteenth Amendment Due Process Clause based on the imposition of disciplinary penalties and confiscations of his previously approved personal property items; (2) First Amendment challenges to a VDOC policy restricting the depiction of nudity in incoming inmate publications ("nudity policy"); (3) a First Amendment challenge to VDOC policies prohibiting inmates from possessing original pieces of incoming mail ("correspondence policy"); and (4) a Fourteenth Amendment Due Process challenge to the VDOC policy prohibiting him from ordering special food packages unless he has been free of disciplinary convictions for six months ("food packages policy").[1] Shell seeks declaratory and injunctive relief and return of monies taken for his disciplinary fines.

         B. Confiscated Property

         Shell was confined at Pocahontas when the events at issue occurred.[2] On November 30, 2015, Boyd told Shell that under his treatment plan, he was not allowed to have photographs of Marion, his deceased girlfriend who is also considered the victim of his crime, or any woman who resembled Marion. Boyd also gave Shell a copy of the treatment plan, which he signed. Compl. Ex. F, ECF No. 1-1 at 118-19. This document states that Shell is "[p]rohibited from viewing or possessing any publications, materials, or photos which may be detrimental to the treatment plan or that may promote sexually deviant behaviors. This includes materials and photos of victim(s). Until release." Id. at 119. Shell thereafter attempted to remove from his property items all pictures of Marion (many of which he had been allowed to possess and display for years) and mailed them to a friend outside the VDOC.

         Shell's Claim (1) includes due process challenges to several disciplinary proceedings at Pocahontas. In response, the defendants offer an Affidavit from Hearings Officer Bandy with documentation of the challenged proceedings attached. Mem. Supp. Mot. Summ. J. Bandy Aff, ECF No. 20-1. A copy of VDOC OP 861.1, Offender Discipline, which sets out the guidelines for the inmate disciplinary proceedings, is attached to Bandy's Affidavit. Id. at 10-49. Bandy states that Shell was afforded all applicable due process rights under OP 861.1 with regard to the challenged disciplinary charges. Bandy Aff. ¶ 35.

         On August 16, 2016, Boyd placed an institutional charge against Shell, PSCC-2016-1019, for possession of contraband-a newspaper article about Shell's crimes that included a picture of his victim. Compl. 7-8 and Ex. A, ECF No. 1-1 at 2-3, 7-16.; Bandy Aff. ¶¶ 10-13 and Ex. 57-73. The staff investigation of the charge concluded on August 16, 2016, the Disciplinary Offense Report ("DOR") was served on Shell that same day at 2:25 p.m., [3] and he signed the report indicating that he had been informed of the charge against him and advised of his rights. Shell made a request for documentary evidence, which Bandy rejected as not being timely filed. Bandy conducted a disciplinary hearing on August 24, 2016, and found Shell guilty of the PSCC-2016-1019 contraband charge, based on the Reporting Officer's testimony that items prohibited under Shell's treatment plan had been found in his possession. Bandy imposed a $ 15 fine. Shell appealed his conviction and the $15 fine, and Warden Young upheld Bandy's rulings. Shell also had other confiscated items mailed to his friend for safekeeping.

         Officers searched Shell's personal property twice on October 21, 2016, and confiscated 21 photographs and other materials for Boyd to inspect. Boyd later returned many materials, including four of the photographs, but she advised Shell that other materials violated his treatment plan. Shell was permitted to authorize officials to mail the confiscated materials to a friend outside the VDOC for safekeeping until his release. The friend has advised Shell that the materials received did not include the 17 additional photographs that officers took from Shell.[4]

         On November 22, 2016, Boyd wrote three additional, allegedly "false and illegal" charges against Shell, including PSCC-2016-1644 for unauthorized use of a law library typewriter. Compl. Ex. E, ECF No. 1-1; Bandy Aff. ¶¶ 14-17 and Ex. 74-88. The staff investigation leading to this charge was completed on November 22, 2016, the DOR was served on Shell at 5:13 p.m., and he signed the report indicating that he had been informed of the charge against him and advised of his rights. Shell requested documentary evidence, which Bandy approved and obtained. Bandy found Shell guilty of the offense, based on Boyd's testimony that Shell had used the typewriter in the law library to type a document that was not intended for an active legal case or action, and imposed a $15 fine. Assistant Warden R. Walz upheld the conviction on appeal. For the same conduct, Shell was also suspended from using the law library for six months for misuse of [its] resources. Compl. Ex. E, ECF No. 1-1 at 98.

         In PSCC-2016-1645, Boyd charged Shell with possession of contraband for having the handwritten notes by his attorney, describing Shell's crime. Compl. Ex. F, ECF No. 1-1 at 108-122; Bandy Aff. ¶¶ 18-21 and Ex. 89-105. The staff investigation ended on November 22, 2016, the DOR was served on Shell at 4:57 p.m., and he signed the report indicating that he had been informed of the charge against him and advised of his rights. Shell requested documentary evidence, which Bandy obtained. Bandy found Shell guilty based on Boyd's testimony that Shell had in his possession two handwritten pages describing sexual acts-items prohibited by his treatment plan. On November 30, 2016, Bandy found him guilty of this charge and imposed a $ 15 fine. Shell's appeal was unsuccessful.

         In PSCC-2016-1646, Boyd charged Shell with failure to follow posted rules and regulations for possessing the state inmate number of a former VDOC inmate. Compl. Ex. G, ECF No. 1-1 at 124-135; Bandy Aff. ¶¶ 22-25 and Ex. 106-121. The staff investigation ended November 22, 2016, the DOR was served on Shell at 5:07 p.m. that same day, and he signed the report indicating that he had been informed of the charge against him and advised of his rights. He requested documentary evidence, which Bandy obtained. On November 30, 2016, Bandy found Shell guilty based on Boyd's testimony that Shell had in his possession another offender's name and ID number and Shell's admission that the inmate had given it to him. Shell appealed his conviction and $15 fine, and Warden Young upheld the conviction.

         On June 22, 2017, Boyd wrote a level 100 disciplinary charge against Shell-PSCC-2017-1031, for possession of Boyd's personal information. Compl. Ex. H, ECF 1-1 at 137-45; Bandy Aff. ¶¶ 26-30 and Ex. 122-27, ECF No. 20 & 20-1. This charge stated that Shell possessed a copy of Boyd's state license as a mental health worker. The staff investigation concluded on June 21, 2017, the DOR was served on Shell at 4:57 the following day, and he signed the report indicating that he had been informed of the charge against him and advised of his rights. Bandy found Shell guilty of this charge based on Boyd's testimony and, as a penalty, suspended Shell's telephone and kiosk (email) privileges for 45 days. On appeal, after Shell had served most of the suspension time, Warden Young dismissed the charge, based on information in Shell's appeal and on his conclusion that the document was a public document, not a copy of Boyd's license, that did not include personal information impermissible for Shell to possess. Shell contends that because this level 100 charge was not immediately removed from his record after its dismissal, officials increased his security level and transferred him to River North Correctional Center ("River North"), a higher security and more restrictive facility than Pocahontas.

         On June 22, 2017, Boyd also wrote PSCC-2017-1032, charging Shell with possession of contraband for having materials prohibited by his treatment plan because they related to his conviction and promoted sexually deviant behavior. Compl. Ex. I, ECF No. 1-1 at 147-59; Bandy Aff. ¶¶ 31-34 and Ex. 128-42. The staff investigation concluded on June 22, 2017, the DOR was served on Shell that same day, and he signed the report indicating that he had been informed of. the charge against him and advised of his rights. The confiscated items were printed pages from Tony Ward's website that contained sexually-related material about Shell's victim and an advertisement from a Vogue magazine that depicted two women wrapping each other in stockings. Bandy found Shell guilty of this offense based on Boyd's testimony and imposed a loss of telephone and kiosk privileges for 45 days. Warden Young upheld his conviction on appeal.

         C. Administrative Remedies

         In support of the defendants' motion for summary judgment, they submit an Affidavit from C. Smalling, the Human Rights Advocate at Pocahontas, as evidence of the available grievance procedures and Shell's use of them. Mem. Supp. Mot. Summ. J. Smalling Aff, ECF No. 10-1. A copy of OP 866.1, Offender Grievance Procedure, was attached to Smalling's Affidavit. Id., at 7-19. Smalling is responsible for maintaining grievance files on inmates at Pocahontas. The procedures in OP 866.1 provide a mechanism for inmates to resolve complaints, appeal administrative decisions, and challenge the substance of procedures. The procedures also provide VDOC administrators with a means to evaluate potential problems, and, if necessary, correct those problems in a timely manner.

         Under OP 866.1, all issues are grievable except those pertaining to policies, procedures and decisions of the Virginia Parole Board, disciplinary hearings, state and federal court decisions, laws and regulations, and other matters beyond the control of the VDOC. OP 866.1(IV)(M)(2). Among the issues the procedure lists as grievable by offenders are:

a. Procedures of the facility, region, division, and department which affect the grievant personally
b. Actions of individual employees and/or offenders which affect the firievant personally. . ..

OP 866.1(IV)(M)(1) (emphasis added). Regular Grievances must be submitted within 30 calendar days from the date of occurrence/incident or discovery of the occurrence/incident. Only one issue may be addressed per Grievance. The inmate must attach to the Regular Grievance all records necessary to investigate his complaint, including a copy of the Informal Complaint form, if required, and the staff response to it.

         Regular Grievances that do not meet the filing requirements of OP 866.1 are returned to the inmate within two working days from the date of receipt, noting the reason for return on the intake section of the Grievance form. The inmate is instructed how to remedy any problems with the Regular Grievance when feasible, and he may then resubmit it. If an inmate wishes to obtain review of the intake decision on any Grievance, he must send it to the applicable Regional Ombudsman within five calendar days of receipt for a determination. There is no further review of the intake decision.

         OP 866.1 states:

An offender meets the exhaustion of remedies requirement only when a Regular Grievance has been carried through the highest eligible level of appeal without satisfactory resolution of the issue.
.... If a Regular Grievance does not meet the criteria for acceptance and review by the Regional Ombudsman [and] does not result in intake into the grievance process, the issue must be resubmitted in accordance with the criteria for acceptance. The exhaustion of remedies requirement will be met only when the Regular Grievance has been accepted into the grievance process and appealed through the highest eligible level without satisfactory resolution of the issue.

OP 866.1(IV)(O)(2).

         If a Regular Grievance is accepted at intake, the Warden or a designee reviews it and issues a Level I response. If the offender is dissatisfied with the Level I determination, he may appeal to Level II, triggering review of the Level I response by the Regional Administrator or another appropriate administrator. For most issues, Level II is the final level of review. For those issues appealable to Level III, the Deputy ...


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