United States District Court, E.D. Virginia, Alexandria Division
Christopher S. Hooks Plaintiff,
J. Harmon & T. Ortiz, Defendants.
MEMORANDUM OPINION & ORDER
S. Hooks, a Virginia inmate proceeding pro se, filed a civil
rights action under 42 U.S.C. § 1983 alleging that two
officers at Nottoway Correctional Center violated his
procedural due process rights during disciplinary
proceedings. [Dkt. No. 14]. The Court granted summary
judgment to defendant J. Harmon, the disciplinary hearing
officer, in an Order dated February 12, 2019. [Dkt. No. 40].
Now defendant T. Ortiz, the institutional investigator, moves
for summary judgment. [Dkt. No. 44]. Hooks received the
notice required by Local Rule 7(K) and Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), and has filed
opposing motions.[Dkt. Nos. 46, 52-53]. Because the
undisputed record does not show that Ortiz violated
Hooks's due process rights, her motion for summary
judgment will be granted.
Ortiz had been tasked with investigating a note threatening a
correctional officer that was received by the "Watch
Office" on December 28, 2015. [Dkt. No. 45-1, Harmon
Aff. Enclosure B]. The note said, "OFC Watts will be
DEAD Monday we will kill her and Rape her Body -Move
Her." [Id-]- Ortiz learned from a sergeant that, two
days before the note was found, Hooks had told the sergeant
that "he needed to 'Get Officer Watts out of that
booth. She's getting on my fucking nerves.'"
[Id.]. Ortiz then questioned Hooks about his
relationship with Officer Watts. [Id.]. Hooks
related that '"they had a falling out and tension
had gotten elevated since Christmas." [Id.].
Next, Ortiz compared the handwriting in the note to other
documents written by Hooks, and she determined that they
"have the same characteristics." [Id.].
Based on his investigation, Ortiz levied a disciplinary
charge against Hooks for "Conspiracy to Commit/Killing
or Attempting to Kill any Person" on January 13, 2016.
Hooks was served with the disciplinary report and notified
about his upcoming hearing, he requested that the note and
the comparative writing samples be produced as documentary
evidence to contest the charge. [Id.]. He urged that
the documents were relevant because the note was "the
sole" basis for the charge, [Id.]. Officer
Harmon denied the request on security grounds "because
of the possibility it might be used in a criminal proceeding,
and it was evidence in an investigation." [Harmon Aff.
disciplinary hearing Officer Ortiz reiterated his findings
about the note. [Id. ¶ 18]. Officer Harmon
found Hooks guilty of the charge "based upon Officer
Ortiz's testimony, as well as the testimony of multiple
staff witnesses who testified at the hearing that Hooks had
spoken to them about the frustration that he was having
regarding Officer Watts." [Id. ¶ 19].
Additionally, Harmon relied on hearing evidence "that a
staff member had spoken with Hooks as a confidential
informant, and Hooks admitted to the confidential informant
that he (Hooks) had written the note out of
frustration." [Id. ¶ 20], Harmon never
reviewed the note before the hearing. [Id. ¶
22]. But she avers that Ortiz showed her the note and writing
sample comparisons afterwards and seeing them, she says,
confirmed her conclusion about Hooks's guilt.
[Id.]. Hooks lost all of his accumulated good time
as a result. [Harmon Aff. Enclosure B].
sued Officers Harmon and Ortiz, claiming that they violated
his procedural due process rights during the disciplinary
proceedings. [Dkt. No. 14, Pl. Verified Compl.]. He alleges
that the note was the sole evidence against him and, without
its production along with the handwriting exemplar, he was
left with no evidence to defend himself. [Id.]. He
further alleges that Ortiz repeatedly violated prison
operating procedures during the proceedings. [Id.].
Ortiz moved the Court to dismiss the complaint, arguing that
Hooks failed to allege that Ortiz was personally involved in
violating his procedural due process rights. [Dkt. Nos.
23-24]. The Court denied Ortiz's motion based on
Hooks's allegations that Ortiz had control over the
requested evidence and told Hooks that the documents would
not be produced. [Dkt. No. 41]. Through another Order that
same day, the Court dismissed Officer Harmon from this
action, concluding that the undisputed record established
that Hooks's procedural due process rights were not
violated because Harmon restricted access to the note based
on legitimate institutional concerns (an ongoing criminal
investigation). [Dkt. No. 40].
Standard of Review
Court will grant a motion for summary judgment "if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law/' Fed.R.Civ.P. 56(a). "A dispute is
genuine if a reasonable jury could return a verdict for the
nonmoving party," and "[a] fact is material if it
might affect the outcome of the suit under the governing
law." Hupp v. Cook, 931 F.3d 307, 317 (4th Cir.
2019) (internal quotation marks and citations omitted). The
Court views the evidence, and draws all inferences, in the
light most favorable to Hooks, as the nonmoving party. See
E.W, by T, W. v. Dolgos, 884 F.3d 172, 178 (4th Cir.
Hooks could survive a motion to dismiss he cannot survive
summary judgment. At this stage, he "must produce
evidence that goes beyond conclusory or speculative
allegations and relies on more than a mere scintilla of
evidence," See Hodgin v. UTC Fire & Sec.
Americas Corp., 885 F.3d 243, 252 (4th Cir. 2018)
(internal quotation marks, alteration, and citation omitted),
to show that Officer Ortiz violated his qualified
constitutional right to review and present documentary
evidence in his defense, see Wolff v. McDonnell, 418
U.S. 539, 566 (1974); Lennear v. Wilson, 937 F.3d
257, 268-70 (4th Cir. 2019). The evidence reveals that it was
Officer Harmon, not Ortiz, who determined that Hooks could
not access the note and handwriting exemplars during the
disciplinary proceedings. [Harmon Aff. ¶ 10; Harmon Aff.
Enclosure B]. In his unverified response opposing Ortiz's
motion to dismiss, Hooks asserted that Ortiz "chose not
to produce the note for inspection due to her lack of
knowledge in handwriting comparison analysis." [Doc. No.
33], But at summary judgment Hooks has not put forth any
evidence to support that assertion, as is necessary
to put into dispute Harmon's sworn statement that she was
the decisionmaker. Nor does Hooks's statement attempting
to tie Ortiz to the decision in his verified complaint negate
Harmon's testimony: "Stated on Audiotape
[Officer] Ortiz and [Officer] Harmon could not show Plaintiff
this note because¿It will reveal the
identity of who wrote it.'" [Dkt. No. 14, Pl.
Verified Compl.]. Even making inferences in Hooks's
favor, no jury could conclude from this statement that Ortiz
had the authority to provide the note or prevented its
production in advance of the hearing.
Officer Ortiz is entitled to judgment as a matter of law on
Hooks's claim that her failure to follow prison operating
procedures in carrying out her investigation violated his
procedural due process rights. Because a prison's
''adoption of procedural guidelines does not give
rise to a liberty interest... the failure to follow
regulations does not, in and of itself, result in a violation
of due process." Kitchen v. Ickes, 116
F.Supp.3d 613, 629 (D. Md. 2015); see also Riccio v. Cty.
of Fairfax, Va., 907 F.2d 1459, 1469 (4th Cir. 1990)
f'[T]o hold that a state violates the Due Process Clause
every time it violates a state-created rule regulating the
deprivation of a property interest would contravene the well
recognized need for flexibility in the application of due
it is hereby
that defendant's motion for summary judgment [Dkt. No.
44] be and is GRANTED, and Officer T. Ortiz be and is
DISMISSED from this civil matter; and it is further
that plaintiffs motion for extension of time [Dkt. No. 47] be
and is ...