# Brown v. Ponce

> District Court, E.D. Virginia · December 13, 2024

URL: https://www.frixlaw.com/law-library/cases/10760961

## Case

- **Court:** District Court, E.D. Virginia
- **Decided:** December 13, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10760961

## How later opinions describe it (automated extraction)

- noting that liability is “personal, based upon each defendant’s own constitutional violations”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
MONTA M. BROWN,
Plaintiff,
v. Civil Action No. 3:23cv194
BERENICE PONCE, e? ai.,
Defendants.
MEMORANDUM OPINION
Monta Brown, a Virginia inmate proceeding pro se and in forma pauperis, filed this
42 U.S.C. § 1983 action! arguing that his constitutional rights were violated when he received an
institutional charge and a subsequent conviction. The matter is before the Court on Mr. Brown’s
Second Particularized Complaint, (ECF No. 30), and the Motion to Dismiss filed by Defendant

! 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.
2 For reasons that are unclear, Mr. Brown filed a new “Civil Action Complaint” on May
28, 2024. (ECF No. 39.) By Memorandum Order entered on June 13, 2024, the Court explained
that the matter proceeded on the Second Particularized Complaint, (ECF No. 30), Mr. Brown
was not permitted to litigate two complaints, and if he wished his newest “Civil Action
Complaint” to replace his Second Particularized Complaint, he was required to notify the Court
of his desire to proceed on the “Civil Action Complaint,” within fifteen (15) days of the date of
entry thereof. (ECF No. 44, at 1.) Otherwise, the Court explained, the matter remained before
the Court on the Second Particularized Complaint only. (ECF No. 44, at 1.) Mr. Brown did not
notify the Court that he wished to only proceed on the “Civil Action Complaint.” Therefore, the
Second Particularized Complaint is the only operative complaint before the Court.

Berenice Ponce, (ECF No. 41). Defendant Ponce and the Court provided Mr. Brown with notice
pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). (ECF Nos. 43, 53.) Mr. Brown
has filed several responses. (ECF Nos. 50, 51.) For the reasons stated below, the Motion to
Dismiss, (ECF No. 41), will be GRANTED.
I. Standard of 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); see 28 U.S.C. § 1915A. 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)). The second standard is the
familiar standard for a motion to dismiss under Federal Rule of Civil Procedure 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) (quoting Conley v. Gibson, 355 U.S. 41,
47 (1957)). Plaintiffs cannot satisfy this standard with complaints containing only “labels and
conclusions” or a “formulaic recitation of the elements of a cause of action.” /d. (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 U.S. 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, therefore, the
plaintiff must “allege facts sufficient to state all the elements of [his or] her claim.” Bass v. □□□□
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); lodice 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 does not act as the inmate’s advocate, sua sponte developing
statutory and constitutional claims the inmate failed to clearly raise on the face of his 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. Procedural History, Allegations, and Claims
In his Second Particularized Complaint, Mr. Brown alleges that Berenice Ponce, a
counselor at Sussex I State Prison (“Sussex”), and Rhonda Langford and Mark Kitchen, hearings

officers at Sussex, violated his Fourth, Fifth, Sixth, and Fourteenth Amendment rights when he

was charged and convicted for indecent exposure. (ECF No. 30, at 14.) Mr. Brown alleges the
following facts in support of his claims:?
4, Ms. Ponce: Ms. Ponce on entering 3-building D-pod did not follow
policy and procedure and watched me masturbate without my knowledge. As a
[result], she wrote me an institutional charge.
5. Ms. Ponce: Ms. Ponce at a disciplinary hearing of the institutional
charge . . . admitted to not following policy and procedure.
6. Ms. Ponce: Ms. Ponce [at the hearing] . . . also admitted to watching
me often without my knowledge.
7. Ms. Ponce: Ms. Ponce at this case . . . also admitted that she was
not conducting any professional business coming to my cell (3-building, D-pod, 15
cell (3D15)) 3D15.
8. Ms. Ponce: Ms. Ponce came to my cell 3D15 without knocking,
speaking or announcing herself in any way to me with the intent to invad[e]
my privacy.
9. Ms. Ponce: Ms. Ponce [at the hearing] also stated that she does not
have to follow policy and procedure and announce herself as DOC policy and
procedure states.
10. | Ms. Ponce committed voyeurism (sexual abuse) by observing me on
more than one time masturbating in my cell 3D15 privacy.
11. | Ms. Langford: Ms. R. Langford denied my request for witnesses for
the case....
12. Ms. Langford: Ms. Langford denied my request for documentary
evidence for the case....
13... Ms. Langford: Ms. Langford stated that Ms. Ponce does not have to
answer my questions at the hearing ....
14. Ms. Langford: Ms. Langford stated that Ms. Ponce does not have to
announce herself to me and follow policy and procedure.

3 The Court employs the pagination assigned by the CM/ECF docketing system. The
Court corrects the spelling and punctuation in the quotations from Brown’s submissions.

15. Ms. Langford: Ms. Langford did not enforce policy and procedure
in the case....
16. Ms. Langford spoke for Ms. Ponce in the case....
17... Mr. Kitchen: Mr. Kitchen denied my request for evidence (video
and audio camera footage) for the case....
(ECF No. 30, at 1-2.)
By Memorandum Order entered on April 15, 2024, the Court conducted its screening
obligations under 28 U.S.C. § 1915, and explained as follows:
Upon concluding the review of the complaint required by the Prison Litigation
Reform Act, it is ORDERED that:
1. Plaintiff contends that Defendant Langford violated his Fifth
Amendment due process rights[*] and a Sixth Amendment right[*] to “an impartial
hearing.” (ECF No. 30 §{ 23-24.) Because Plaintiff is a state inmate bringing
claims against state actors, his due process claims are governed by the Fourteenth
Amendment,[°] not the Fifth Amendment. See Winfield v. Bass, 106 F.3d 525, 530
n.2 (4th Cir. 1997). Moreover, it is the Fourteenth Amendment Due Process
Clause, not the Sixth Amendment, that provides a state inmate with the right to an
impartial institutional hearing. Plaintiff's claims brought under the Fifth and Sixth
Amendment are DISMISSED.
Plaintiff also suggests that “[Defendant] Ponce[’s] voyeurism seized my
privacy in my house” and Defendant Langford “seized my papers and effects when
she denied my requests for evidence,” thereby violating his Fourth Amendment
rights.[’] (ECF No. 30 {J 21-22.) Plaintiff also suggests that Defendant Ponce
violated his rights “as she stated that I have no right to any privacy.” (ECF No. 30
4 “No person shall be . . . deprived of life, liberty, or property, without due
process of law... .” U.S. Const. amend. V.
5 “In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district wherein the
crime shall have been committed... .” U.S. Const. amend. VI.
6 “No State shall ... deprive any person of life, liberty, or property,
without due process of law... .” U.S. Const. amend. XIV, § 1.
7 “The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated ....” U.S.
Const. amend. IV.

4 18.) Plaintiff, as a prisoner, has no “legitimate expectation of privacy [in his cell]
and ... the Fourth Amendment’s prohibition on unreasonable searches does not
apply.” Hudson v. Palmer, 468 U.S. 517, 530 (1984). “The recognition of privacy
rights for prisoners in their individual cells simply cannot be reconciled with the
concept of incarceration and the needs and objectives of penal institutions.” Jd. at
526. Plaintiff has no legitimate expectation of privacy in his cell and his Fourth
Amendment claims will be DISMISSED.[§] Accordingly, only Plaintiff's
Fourteenth Amendment due process claims remain.[°]
(ECF No. 32, at 1-2 (footnote numbers altered) (all other alterations in original).)
As explained in the April 15, 2024 Memorandum Order, Mr. Brown’s due process claims
remain as set forth in paragraphs {J 19-20, and 22-24 of his Particularized Complaint. In those
paragraphs Mr. Brown states as follows:
19. As stated in sec. II, 11-16, Ms. Langford violated all of my due process
rights when she did not follow the DOC policy and procedure which provide
Plaintiff with due process rights. Ms. Langford further violated my due process
right in [his case] as she denied my due process right to properly question the said
“victim” in the case.
20. As stated in sec. II, 17, Mr. Kitchen violated my due process rights
when he did not follow the DOC policy and procedure which provide me the due
process right to request video and audio camera footage as evidence this] case... .

22. As stated in sec. II, 11-16, Ms. Langford seized my papers and effects
when she denied all my requests for evidence that would prove my innocence and
that I was indeed a victim....

8 Although Plaintiff claims that Defendant Ponce violated his due process
rights “as she stated that I have no right to any privacy,” (ECF No. 30 { 18), this is
once again a Fourth Amendment claim, and will be DISMISSED. To the extent
that Plaintiff argues that he was denied evidence for his institutional hearing, that
claim arises from the Fourteenth Amendment, not the Fourth Amendment. The
Court allows that claim to proceed solely under the Fourteenth Amendment.
° The remaining Fourteenth Amendment due process claims are contained
in paragraphs 19-20, 22-24.

23. As stated in sec. II, 11-16, Ms. Langford deprived me of liberty without
due process right when she failed to follow DOC policy and procedure. Her actions
directly deprived me of early release good time, security level DOC transfer, and
job which provide my livelihood.

24. As stated in sec. II, 11-16, Ms. Langford deprived me of an impartial
hearing, which is guaranteed to me by DOC policy and procedure, and DOC
Operational Procedure 861.1.
(ECF No. 30, at 3.)!°
IiI. Analysis
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). “Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat superior.” Iqbal,
556 U.S. at 676 (citations omitted). To state a legally sufficient claim for an alleged violation of

a federal constitutional right, “[a] plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the Constitution.” Jd. Accordingly,
the plaintiff must allege facts that affirmatively show “that the official charged acted personally
in the deprivation of the plaintiff[’s] rights.” Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.
1977) (internal quotation marks omitted); Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001)
(noting that liability is “personal, based upon each defendant’s own constitutional violations”).
As Defendant Ponce correctly asserts, Defendant Ponce is not named in any of these due

process claims. Thus, Mr. Brown fails to allege facts indicating that Defendant Ponce was

10 The Court notes that several pages later, on page 6, there is an additional due process
allegation against Ms. Langford in paragraph 25. (ECF No. 30, at 6.) However, that is not
relevant for the Motion to Dismiss filed by Defendant Ponce so the Court does not recite it here.

personally involved in the deprivation of his due process rights in conjunction with the
institutional hearing. Rather, Mr. Brown’s allegations are that Defendant Langford took
Defendant Ponce’s side and defended her, spoke in place of Defendant Ponce, indicated that
Defendant Ponce did not have to answer Mr. Brown’s questions during the hearing, and that
Defendant Kitchen denied him certain evidence at the hearing. These allegations are all against
Defendant Langford, not against Defendant Ponce. In sum, Mr. Brown fails to allege facts
indicating that Defendant Ponce was personally involved in the deprivation of his due process
rights.'! Any remaining claim against Defendant Ponce will be DISMISSED."*

\! The Court notes the footnote in the April 15, 2024 Memorandum Order, see n.8 supra,
could be read to suggest that the Court believed that there was a due process claim against
Defendant Ponce in paragraph 18. The Court indicated that with respect to paragraph 18, that
“la]lthough Plaintiff claims that Defendant Ponce violated his due process rights “as she stated
that I have no right to any privacy,” (ECF No. 30 { 18), this is once again a Fourth Amendment
claim, and will be DISMISSED.” (ECF No. 32, at 2n.5.) The Court further stated: “To the
extent that Plaintiff argues that he was denied evidence for his institutional hearing, that claim
arises from the Fourteenth Amendment, not the Fourth Amendment. The Court allows that claim
to proceed solely under the Fourteenth Amendment.” (ECF No. 32, at 2 1.5.) The Court now
clarifies that Paragraph 18 did not contain an allegation that Defendant Ponce was involved in
denying him evidence for his institutional hearing. The Court’s statement was a reference to the
due process allegations against Defendant Langford in paragraph 22.
Even reviewing paragraph 18, the remaining “due process” portion of the claim suggests
that Defendant Ponce violated his due process rights by not following VDOC policies and
procedures. (ECF No. 32 § 18; see also ECF No. SO, at 1; ECF No. 51. at 1-2.) However,
violations of prison operating procedures do not implicate due process rights and are not
cognizable under § 1983. See Riccio v. Cty. of Fairfax, 907 F.2d 1459, 1469 (Ath Cir. 1990);
Puranda v. Hill, No. 3:10CV733—HEH, 2012 WL 2311844, at *5 (E.D. Va. June 18, 2012).
12 At the end of his Second Particularized Complaint, Mr. Brown indicates that Defendant
Ponce committed “[v]oyeurism” and “intentional infliction of emotional distress when she
knowingly, intentionally, and willingly invaded my privacy.” (ECF No. 30 426.) Mr. Brown
fails to plead a claim of intentional infliction of emotional distress under Virginia law. To state a
claim, Mr. Brown was required to allege the following four elements: “(1) the wrongdoer’s
conduct was intentional or reckless; (2) the conduct was outrageous or intolerable; (3) there was
a causal connection between the wrongdoer’s conduct and the resulting emotional distress; (4)
and the resulting emotional distress was severe.” Almy v. Grisham, 639 S.E.2d 182, 186 (Va.
2007) (citations omitted). At most, Mr. Brown states that “Ms. Ponce intentional infliction of
emotional distress when she knowingly, intentionally, and willingly invaded my privacy for

IV. Conclusion
The Motion to Dismiss, (ECF No. 41), will be GRANTED. Any remaining claim against
Defendant Ponce will be DISMISSED.
An appropriate Order will accompany this Memorandum Opinion.

S604
Date: \OWWa\ M. Hannah
Richmond, Virginia United States District Judge

reasons unrelated to official duties.” (ECF No. 30 § 26.) Thus, Mr. Brown fails to allege “all
facts necessary to establish the cause of action,” see id. at 187 (citations omitted), and
therefore he fails to state □ claim. To the extent that Mr. Brown intended to raise a state law
claim of intentional infliction of emotional distress against Defendant Ponce, that claim will
be DISMISSED.
In his first response, Mr. Brown appears to simply reiterate his allegations including
continuing to argue his Fourth Amendment claims about Defendant Ponce invading his privacy.
(ECF No. 50, at 1-2.) As explained previously, those claims deriving from the Fourth
Amendment fail to state a claim and were dismissed by Memorandum Order entered on April
15, 2024.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10760961. Public record. Not legal advice.