Jones v. Brown

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

JOHNNIE NELL JONES, JR., )

)

Plaintiff, )

)

) Civil Action No. 3:20CV331—HEH

)

KAREN BROWN, et al., )

)

Defendants. )

MEMORANDUM OPINION

(Dismissing Action for Failure to State a Claim and as Legally Frivolous)

Johnnie Nell Jones, Jr., a Virginia inmate proceeding pro se and in forma

pauperis, filed this 42 U.S.C. § 1983 action.' The matter is before the Court for

evaluation pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A. As explained below, the

Court has previously addressed and rejected Jones’s claim that his constitutional rights

were violated when he was determined to be ineligible for parole in 1995. See Jones v.

Johnson, 3:06CV118 (E.D. Va. Aug. 28, 2007). Accordingly, the current action will be

dismissed because it fails to state a claim and is legally frivolous and malicious.

! The statute provides, in pertinent part:

Every person who, under color of any statute ... of any State .. . subjects,

or causes to be subjected, any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party injured in an action

atlaw....

42 U.S.C. § 1983.

I, PRELIMINARY REVIEW

Pursuant to the Prison Litigation Reform Act (“PLRA”) this Court must dismiss

any action filed by a prisoner if the Court determines the action (1) “is frivolous” or (2)

“fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2). The first

standard includes claims based upon “an indisputably meritless legal theory,” or claims

where the “factual contentions are clearly baseless.” Clay v. Yates, 809 F. Supp. 417, 427

(E.D. Va. 1992) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)), aff'd, 36 F.3d

1091 (4th Cir. 1994). The second standard is the familiar standard for a motion to

dismiss under Fed. R. Civ. P. 12(b)(6).

“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;

importantly, it does not resolve contests surrounding the facts, the merits of a claim, or

the applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952

(4th Cir. 1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and

Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim,

a plaintiff's well-pleaded allegations are taken as true and the complaint is viewed in the

light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th

Cir. 1993); see also Martin, 980 F.2d at 952. This principle applies only to factual

allegations, however, and “a court considering a motion to dismiss can choose to begin

by identifying pleadings that, because they are no more than conclusions, are not entitled

to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

The Federal Rules of Civil Procedure “require[ ] only ‘a short and plain statement

of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant

fair notice of what the . . . claim is and the grounds upon which it rests.”” Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007) (second alteration in original) (citation omitted).

Plaintiffs cannot satisfy this standard with complaints containing only “labels and

conclusions” or a “formulaic recitation of the elements of a cause of action.” Jd.

(citations omitted). Instead, a plaintiff must allege facts sufficient “to raise a right to

relief above the speculative level,” id. (citation omitted), stating a claim that is “plausible

on its face,” id. at 570, rather than merely “conceivable.” Jd. “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Jgbal, 556

US. at 678 (citing Bell Atl. Corp., 550 U.S. at 556). In order for a claim or complaint to

survive dismissal for failure to state a claim, the plaintiff must “allege facts sufficient to

state all the elements of [his or] her claim.” Bass v. E.J. DuPont de Nemours & Co., 324

F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th

Cir. 2002); Jodice v. United States, 289 F.3d 270, 281 (4th Cir. 2002)). Lastly, while the

Court liberally construes pro se complaints, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th

Cir. 1978), it will not act as the inmate’s advocate and develop, sua sponte, statutory and

constitutional claims that the inmate failed to clearly raise on the face of his or her

complaint. See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J.,

concurring); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

Il. ALLEGATIONS

By Memorandum Order entered on June 16, 2021, the Court advised Jones that his

“rambling and conclusory allegations fail[ed] to provide each defendant with fair notice

of the facts and legal basis upon which his or her liability rests.” (ECF No. 29 at 2

(citations omitted).)? Accordingly, the Court directed Jones to particularize his complaint

within fourteen (14) days of the date of entry thereof. (/d.) On June 29, 2021, the Court

received Jones’s Particularized Complaint. (““Complaint,” ECF No. 30).

In his Complaint, Jones describes himself as a “first-time convicted armed—robber

with multiple robbery convictions.” (ECF No. 30 at 2.)? Jones avers that in 1995, he was

improperly determined to be ineligible for parole. (/d. at 1.) On an unspecified date,

Jones alleges that he contacted Defendant Brown, the current Chairwoman of the VPB,

and expressed his concerns to her. (/d. at 2.) Defendant Brown allegedly told Jones that

she had “confidence” in the personnel that made the decision to classify him as parole

ineligible. (/d.) Jones then addressed his concerns to Defendant Clarke, the Director of

the VDOC. (/d.) Defendant Clarke’s alleged response appears to have been consistent

with Defendant Brown’s. (/d.) Jones asserts that his rights have been violated for

twenty-six (26) years and describes his current detention as “unlawful incarceration.”

(id. at 2-4.) Jones seeks monetary damages in excess of two million dollars. (/d. at 3-4.)

Notwithstanding the Court’s prior admonishment concerning the level of

specificity that was required of him, Jones’s particularized allegations remain rambling

and conclusory. Despite being instructed on how to particularize his allegations (see ECF

No. 29 at 2), Jones fails to set forth clearly delineated claims against the Defendants. See

2 The Court employs the pagination assigned by the CM/ECF docketing system.

3 The Court corrects the capitalization, punctuation, and spelling in the quotations from Jones’s

submissions.

Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985) (observing that

“[d]istrict judges are not mind readers” and noting that principles of liberal construction

do not require “courts to conjure up questions never squarely presented to them”).

Nevertheless, it is clear to the Court that the crux of the Complaint is that Jones continues

to believe that he was unconstitutionally determined to be ineligible for parole in 1995,

despite the fact that this Court has previously rejected that contention.

Ill. ANALYSIS

It is both unnecessary and inappropriate to engage in an extended discussion of

Jones’s theories for relief. See Cochran v. Morris, 73 F.3d 1310, 1315 (4th Cir. 1996)

(emphasizing that “abbreviated treatment” is consistent with Congress’s vision for the

disposition of frivolous or “insubstantial claims” (citing Neitzke v. Williams, 490 U.S.

319, 324 (1989))). Ultimately, Jones’s Complaint will be dismissed for failing to state a

claim and because it is legally frivolous and malicious.

A. Prior Litigation of the 1995 Parole Ineligibility Determination

On or about February 8, 2006, Jones submitted a prior 42 U.S.C. § 1983

complaint, wherein, he challenged, among other things, the Virginia Parole Board’s

conclusion that he was not eligible for parole. Complaint Attachment 2-3, Jones v.

Johnson, 3:06CV118 (E.D. Va. Aug. 28, 2007). By Memorandum Opinion and Final

Order entered on August 28, 2007, this Court dismissed Jones’s § 1983 action. Jones v.

Johnson, 3:06CV118 (E.D. Va. Aug. 28, 2007). Specifically, the Court wrote:

Plaintiff Johnnie N[ell] Jones, a Virginia inmate proceeding pro se,

filed this 42 U.S.C. § 1983 action, alleging that the Defendants violated his

constitutional rights by allegedly denying him good time credits and finding

him ineligible for discretionary parole. . . .

I. Background

Jones is presently incarcerated for a variety of state convictions, of

which three robbery convictions must be highlighted. Jones was convicted

of robbing: (1) a Chevron Food Mart in Norfolk, Virginia, on December 17,

1992; (2) a Revco Drug Store in Norfolk, Virginia, on December 22, 1992;

and, (3) a 7-11 store in Chesapeake, Virginia, on December 23, 1992.

(Defs.” Mem. Supp. Mot. Summ. J., Ewing Aff. [9 6-8, 16.) Jones is

presently serving a sentence of 44 years, 6 months, and 20 days for all of his

convictions. (/d. at J 3.)

The Virginia Department of Corrections (“WDOC”) determined that

these three convictions were not part of a common act, transaction or scheme.

Accordingly, they were “qualifying robberies” pursuant to Virginia Code

§ 53.1-151(B1),‘ thereby rendering Jones ineligible for discretionary parole.

(Defs.’ Mem. Supp. Mot. Summ. J., Ewing Aff. § 18.) Jones is eligible for

mandatory parole, for which he has an anticipated release date of February

22,2016. (dd. at J 23.)

As of April 18, 2002, Jones began earning good conduct credits at the

highest Good Conduct Allowance (GCA) level, Class I. (/d. at 721.) VDOC

policy requires that all earned good conduct credits are applied to reduce the

amount of time an inmate must serve before attaining his anticipated

mandatory release date. (/d.) Jones is not earning time towards a

discretionary parole date, because he is not eligible for discretionary parole.

(id. at § 18.)

... On an unknown date, Jones appealed the VDOC’s determination

of parole ineligibility to the Virginia Parole Board (“Board”). On May 31,

2001, the Board denied the appeal and affirmed that Jones is ineligible for

discretionary parole under Virginia Code § 53.1-151(B1). The Board

notified Jones of its decision by letter on that date. (Defs.” Mem. Supp. Mot.

Summ. J., Ewing Aff, Encl. C.)

4 Virginia Code § 53.1—-151(B1) reads:

Any person convicted of three separate felony offenses of (i) murder, (ii) rape or

(iii) robbery by the presenting of firearms or other deadly weapon, or any

combination of the offenses specified in subdivisions (i), (ii) or (Gili) when such

offenses were not part of a common act, transaction or scheme shall not be eligible

for parole. In the event of a determination of the Department of Corrections that

an individual is not eligible for parole under this subsection, the Parole Board may

in its discretion, review that determination, and make a determination for parole

eligibility pursuant to regulations promulgated by it for that purpose. Any

determination of the Parole Board of parole eligibility thereby shall supersede any

prior determination of parole ineligibility by the Department of Corrections under

this subsection.

III. Analysis

A. Due Process

Jones first asserts his good time credits are being applied incorrectly,

“denying him his protected due process and liberty interest of his parole

eligibility.” (Pet. 4.) To succeed on a due process claim, a plaintiff must

prove two prongs. First, courts must consider whether the plaintiff has a

protected liberty interest within the meaning of the Fourteenth Amendment.

Second, courts must ask whether the plaintiff received the procedural process

he or she was due. See Morrissey v. Brewer, 408 U.S. 471, 481 (1972).

As to the first prong, no constitutional right to parole per se exists.

Vann v. Angelone, 73 F.3d 519, 522 (4th Cir. 1996). As a result, the United

States Court of Appeals for the Fourth Circuit recognizes due process rights

in parole proceedings when “the state has created ‘a legitimate claim of

entitlement’ to some aspect of parole.” Jd. (quoting Ky. Dep’t of Corrs. v.

Thompson, 490 U.S. 454, 460 (1989)). The Code of Virginia does create

some protected liberty interests in consideration for parole eligibility. Hill v.

Jackson, 64 F.3d 163, 170 (4th Cir. 1995). Even in light of this liberty

interest, the Fourth Circuit has noted that inmates are entitled to no more than

minimal process and the interest runs towards the second prong of the court’s

analysis, the procedural process due. “An inmate has a de minimis liberty

interest in parole in Virginia that he is, at most, entitled to a reason for

denial.” Davis v. Fahey, No. 3:04CV607, 2005 WL 940572, *3 (E.D. Va.

Apr. 22, 2005) (quoting Vann, 73 F.3d at 522).

Jones appealed the determination of ineligibility to the Board, which

responded with a letter explaining the reason for denial. The letter stated:

“_ _ . [the Board] has determined you to be ineligible for parole as determined

by the Department of Corrections.” (Defs.’ Mem. Supp. Mot. Summ. J.,

Ewing Aff., Encl. C.) Jones does not deny that, at the least, he received this

amount of process. It is clear that Jones was provided with all the process he

was due and his due process claims must be DISMISSED.°

Id. at 1-2, 4-5 (alterations in footnote numbering) (omissions and alterations in final

paragraph in the original). Jones did not note an appeal following the dismissal of his prior

§ 1983 action.

5 This Court will not address the merits of the individual decision of the Board, as

that would involve second—guessing the decisions of the Board and the Virginia

General Assembly. As the Fourth Circuit has noted, “Such an exercise in state

statutory refinement would compromise important principles of federalism,

undermine state parole authorities, and install the federal judiciary as the final

arbiter in yet one more area of state law.” Vann, 73 F.3d at 522.

Given that the issue of Jones’s parole eligibility has already been litigated and

decided against Jones, the doctrine of res judicata bars Jones from relitigating his claim

in the current action. See Paragon Servs., Inc. v. Hicks, 843 F. Supp. 1077, 1079 (E.D.

Va. 1994) (observing that under the doctrine of res judicata, “parties may not attempt to

relitigate claims which were or could have been raised in an earlier suit where a final

judgment on the merits was reached” (citing Kremer v. Chem. Constr. Corp., 456 U.S.

461 (1982))); ef id. (noting that under the related doctrine of collateral estoppel, “parties

may not attempt to relitigate claims which have been actually litigated by the parties in

an earlier suit” (citing Young Eng’rs, Inc. v. ITC, 721 F.2d 1305, 1314 (Fed. Cir. 1983))).

Indeed, Jones’s blatant attempt to rehash a long-settled matter constitutes an abuse of the

judicial process. See Clay v. Yates, 809 F. Supp. 417, 427-28 (E.D. Va. 1992) (observing

that “a complaint which merely repeats pending or previously litigated claims may be

considered abusive”) (citation omitted). Accordingly, Jones’s claims will be dismissed

for failure to state a claim and because they are legally frivolous and malicious.’

6 Jones has also raised the issue of his parole ineligibility in a 28 U.S.C. § 2254 petition. See

Jones v. Virginia, No. 3:14CV343-HEH, 2015 WL 4223270 (E.D. Va. July 10, 2015). There,

Jones alleged that his attorney was ineffective for failing to properly advise him concerning his

eligibility for parole. Jd. at *2. The Court found that the statute of limitations barred Jones’s

claim and denied his petition. /d. at *2-3,5. The Fourth Circuit denied Jones a certificate of

appealability and dismissed his appeal. Jones v. Virginia, 623 F. App’x 99, 100 (4th Cir. 2015).

7 In 2007, the Court declined to address the merits of the Virginia Parole Board’s decision

regarding Jones’s parole ineligibility based upon principles of federalism. See n.5, supra.

Current circumstances do not require a different approach. However, were the Court required to

delve into the merits of that decision, the Court notes that Jones has failed to allege, except in the

most conclusory of terms, exactly how the determination that he was ineligible for parole was

incorrect. Jones was convicted of three different robberies, which occurred at three different

locations, on three different dates. They were clearly not part of “a common act, transaction or

scheme.” See Virginia Code Ann. § 53.1-151(B1) (West 2021). Consequently, Jones’s

conclusory assertion that he should be eligible for parole is both legally and factually incorrect.

B. No Personal Involvement

Even if Jones were not otherwise barred from relitigating this long—settled matter,

his claims would nevertheless be dismissed because his Complaint lacks sufficient

specificity and clarity.

In order to state a viable claim under 42 U.S.C. § 1983, a plaintiff must allege that

a person acting under color of state law deprived him or her of a constitutional right or of

a right conferred by a law of the United States. See Dowe v. Total Action Against

Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998). However, “[g]overnment

officials may not be held liable for the unconstitutional conduct of their subordinates

under a theory of respondeat superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)

(citations omitted). Instead, the “plaintiff must [demonstrate] that each Government—

official defendant, through the official’s own individual actions, has violated the

Constitution.” Jd.; see also Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001) (noting

that liability in a civil rights case is “personal, based upon each defendant’s own

constitutional violations”).

Jones has not specifically alleged that Defendant Brown, Defendant Clarke, or any

of the unnamed parole board members listed in his complaint had any direct involvement

with the decision to classify him as ineligible for parole in 1995. Indeed, Jones has filed

a Motion to Amend, in which he concedes that he “erroneously named Chairwoman

Brown and H. Clarke” as defendants because they did not occupy their current positions

in 1995. (ECF No. 33 at 1—2.)® Jones’s failure to allege that any of the Defendants

directly participated in the events complained of in 1995 is fatal to his claims.’

Accordingly, Jones’s claims would be dismissed in any event.'°

8 Jones’s Motion to Amend (ECF No. 33) will be denied for two reasons. First, Jones failed to

include an amended copy of his Particularized Complaint with his Motion. See Williams v.

Wilkerson, 90 F.R.D. 168, 169-70 (E.D. Va. 1981) (observing that when a plaintiff seeks to

amend a complaint, “a copy of the proposed amended pleading, and not simply the proposed

amendment, must be attached to the motion”). More importantly, for the reasons stated in

Section IILA, amendment at this juncture would be futile. United States v. Pittman, 209 F.3d

314, 317 (4th Cir. 2000) (citations omitted) (observing that “futility of amendment” is a

legitimate basis under Rule 15(a) for denying a plaintiff leave to amend a complaint).

To the extent that Jones’s allegations could be construed as a challenge not only to the 1995

administrative determination that he was ineligible for parole, but also as a challenge to his

continued confinement (see ECF No. 30 at 2-4 (describing Jones’s current detention as an

“unlawful incarceration” and alleging that Jones has suffered an ongoing constitutional

deprivation for the past twenty-six years), such a claim would not be cognizable in the context of

a § 1983 action. It is well established that a state prisoner cannot use § 1983 as a vehicle to

challenge “the fact or duration of his confinement.” Preiser v. Rodriguez, 411 U.S. 475, 489

(1973); Wolff v. McDonnell, 418 U.S. 539, 554 (1974); Heck v. Humphrey, 512 U.S. 477, 481

(1994); Edwards v. Balisok, 520 U.S. 641, 648 (1997); but cf Wilkinson v. Dotson, 544 U.S. 74,

82 (2005) (allowing a challenge to a parole ineligibility determination in a § 1983 suit because

plaintiff's success would “not mean immediate release from confinement or a shorter stay in

prison,” rather, the most plaintiff could achieve would be a new parole eligibility review).

10 Ordinarily, a dismissal for failure to allege that a defendant was personally involved in the

deprivation of a plaintiff's rights would be one without prejudice. However, as discussed above,

Jones’s claims also run afoul of the doctrine of res judicata, are abusive, and are legally and

factually incorrect. Therefore, the dismissal is one with prejudice.

IV. CONCLUSION

For the foregoing reasons, Jones’s claims will be dismissed for failure to state a

claim and as legally frivolous and malicious. The Motion to Amend (ECF No. 33) will

be denied. The action will be dismissed. The Clerk will be directed to note the

disposition of the action for the purposes of 28 U.S.C. § 1915(g).

An appropriate Order will accompany this Memorandum Opinion.

Henry E. Hudson

Senior United States District Judge

Date:Nov. jo 202!

Richmond, Virginia