Petition for Writ of Certiorari — Louis Roy Chapman, Petitioner v. Phyllis Smith, et al.

Supreme Court briefJan 5, 2022

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FILED: October 26, 2021

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-6587

(3:18-cv-00597-JAG-RCY)

LOUIS ROY CHAPMAN

Plaintiff - Appellant

PHYLLIS SMITH, Education Director, LVCC; DINAH KREITZ; SHANIQUA

MOORE, Law Library, LVCC; DAVE ROBINSON, Chief of Operations, LVCC;

T. WALKER, Recreation Supervisor; MARILYN SHAW, Assistant Warden

Program, LVCC; CRYSTAL JONES, Facility Ombudsman, LVCC; RENEE

WOODSON, Regional Ombudsman, VDOC; K. COSBY, Regional Ombudsman,

VDOC; LAURA TORGESON; TAMIKA SOMMERVILLE; TALIA NEVILLE;

KIAESHIA THOMAS; COMMONWEALTH OF VIRGINIA; GLOBAL

EXPERTS AND OUTSOURCING, INC.

Defendants - Appellees

and

JENNIFER WALKER, Food Service Director, LVCC; N. C. EDMONDS,

Captain, LVCC; MASON, Food Service Supervisor, LVCC; J. SMITH, Health

Services Administrator, LVCC; SUSAN MINTER, Nurse Practitioner, LVCC;

KEEFE CORPORATION, INC.

Defendants

ORDER

The court denies the petition for rehearing and rehearing en banc. No judge

requested a poll under Fed. R. App. P. 35 on the petition for rehearing en banc.

Entered at the direction of the panel: Judge Thacker, Judge Richardson, and

Senior Judge Traxler.

For the Court

/s/ Patricia S. Connor, Clerk

FILED: September 20, 2021

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-6587

(3:18-cv-00597-JAG-RCY)

LOUIS ROY CHAPMAN

Plaintiff - Appellant

PHYLLIS SMITH, Education Director, LVCC; DINAH KREITZ; SHANIQUA

MOORE, Law Library, LVCC; DAVE ROBINSON, Chief of Operations, LVCC;

T. WALKER, Recreation Supervisor; MARILYN SHAW, Assistant Warden

Program, LVCC; CRYSTAL JONES, Facility Ombudsman, LVCC; RENEE

WOODSON, Regional Ombudsman, VDOC; K. COSBY, Regional Ombudsman,

VDOC; LAURA TORGESON; TAMIKA SOMMERVILLE; TALIA NEVILLE;

KIAESHIA THOMAS; COMMONWEALTH OF VIRGINIA; GLOBAL

EXPERTS AND OUTSOURCING, INC.

Defendants - Appellees

and

JENNIFER WALKER, Food Service Director, LVCC; N. C. EDMONDS,

Captain, LVCC; MASON, Food Service Supervisor, LVCC; J. SMITH, Health

Services Administrator, LVCC; SUSAN MINTER, Nurse Practitioner, LVCC;

KEEFE CORPORATION, INC.

Defendants

JUDGMENT

In accordance with the decision of this court, the judgment of the district

court is affirmed.

This judgment shall take effect upon issuance of this court's mandate in

accordance with Fed. R. App. P. 41.

Is/ PATRICIA S. CONNOR. CLERK

FILED: October 4, 2021

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-6587

(3:18-cv-00597-JAG-RCY)

LOUIS ROY CHAPMAN

Plaintiff - Appellant

PHYLLIS SMITH, Education Director, LVCC; DINAH KREITZ; SHANIQUA

MOORE, Law Library, LVCC; DAVE ROBINSON, Chief of Operations, LVCC;

T. WALKER, Recreation Supervisor; MARILYN SHAW, Assistant Warden

Program, LVCC; CRYSTAL JONES, Facility Ombudsman, LVCC; RENEE

WOODSON, Regional Ombudsman, VDOC; K. COSBY, Regional Ombudsman,

VDOC; LAURA TORGESON; TAMIKA SOMMERVILLE; TALIA NEVILLE;

KIAESHIA THOMAS; COMMONWEALTH OF VIRGINIA; GLOBAL

EXPERTS AND OUTSOURCING, INC.

Defendants - Appellees

and

JENNIFER WALKER, Food Service Director, LVCC; N. C. EDMONDS,

Captain, LVCC; MASON, Food Service Supervisor, LVCC; J. SMITH, Health

Services Administrator, LVCC; SUSAN MINTER, Nurse Practitioner, LVCC;

KEEFE CORPORATION, INC.

Defendants

TEMPORARY STAY OF MANDATE

Under Fed. R. App. P. 41(b), the filing of a timely petition for rehearing or

rehearing en banc stays the mandate until the court has ruled on the petition. In

accordance with Rule 41(b), the mandate is stayed pending further order of this

court.

/s/Patricia S. Connor, Clerk

)

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-6587

LOUIS ROY CHAPMAN,

Plaintiff - Appellant,

PHYLLIS SMITH, Education Director, LVCC; DINAH KREITZ; SHANIQUA

MOORE, Law Library, LVCC; DAVE ROBINSON, Chief of Operations, LVCC; T.

WALKER, Recreation Supervisor; MARILYN SHAW, Assistant Warden Program,

LVCC; CRYSTAL JONES, Facility Ombudsman, LVCC; RENEE WOODSON,

Regional Ombudsman, VDOC; K. COSBY, Regional Ombudsman, VDOC;

LAURA TORGESON; TAMIKA SOMMERVILLE; TALIA NEVILLE;

KIAESHIA THOMAS; COMMONWEALTH OF VIRGINIA; GLOBAL

EXPERTS AND OUTSOURCING, INC.,

Defendants - Appellees,

and

JENNIFER WALKER, Food Service Director, LVCC; N. C. EDMONDS, Captain,

LVCC; MASON, Food Service Supervisor, LVCC; J. SMITH, Health Services

Administrator, LVCC; SUSAN MINTER, Nurse Practitioner, LVCC; KEEFE

CORPORATION, INC.,

Defendants.

Appeal from the United States District Court for the Eastern District of Virginia, at

Richmond. John A. Gibney, Jr., District Judge. (3:18-cv-00597-JAG-RCY)

Submitted: September 14,2021

Decided: September 20, 2021

Before THACKER and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit

Judge.

Affirmed by unpublished per curiam opinion.

Louis Roy Chapman, Appellant Pro Se. John P. O’Herron, THOMPSON MCMULLAN

PC, Richmond, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Louis Roy Chapman appeals the district court’s orders denying his motion to recuse,

dismissing as frivolous or for failure to state a claim several of his claims, and granting

Defendants summary judgment on the remaining claims in this 42 U.S.C. § 1983 action.

We have reviewed the record and Chapman’s informal brief and find no reversible error.

Accordingly, we affirm for the reasons stated by the district court. Chapman v. Smith, No.

3:18-cv-00597-JAG-RCY (E.D. Va. Mar. 31, 2020; Sept. 21, 2020; Sept. 24, 2020; Mar.

3, 2021). We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

AFFIRMED

Case 3:I8-cv-00597-JAG-RCY Document 152 Filed .09/21/20. Page; l of 15 PagelD# 1841

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF Virginia

Richmond Division

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Plaintiff;

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. .LOUISJROVCHAPMAN.f.U...

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*1 \ Civil Action No.’3:18CV597

PHYLLIS SMITH, et^

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Defendants.

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^;;F. F F;4^ "MEMORANDUM OPINIONp^lp;-/;

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* * *: V Louis-Roy Chapman, a Virginia inmate proceeding jtro'ife, jfiiedthis!42 U.S.C . § 1983

2~ action. l The action is proceeding on Chapman’s Second Particularized Complaint. (“Complaint,”

Z ECF No. 27.) The matter is before the Court for evaluation pursuant to 42 U.S.C. § 1997e(c)(l)

and the Motion to Dismiss

filed by .......

the Commonwealth

of Virginiaj ^K. Cosby, and Renee

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WoodsonF.For the reasons set forth below, the Motion to Dismiss will be GRANTED and the

below described claims will be DISMISSED for failure to state a claim and because they are legally

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frivolous.

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I. Preliminary Review

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

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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.” 42 U.S.C. § 1997e(c)(l); jee'28 U"S-C:?§ 1915(e)(2)(B)(i-ii);

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The statute provides, in pertinent part:

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' ; Every person who, imder color of any statute .. ..of any State ... subjects,

or causes to be subjected, any citizen of the United States1 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 injtired in an action

at law .......

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42 U.S.C, § 1983.

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Case 3:18n:v-005y7-JAC-rtCY, Document 152, i-iled 09/2i/20;; Page 2 of 15 PageiD# 1842

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28 U.S.C. § 1915A(b). The first standard includes claims based upon “an indisputably meritless

legal thepiy,” 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 \J.S. 319, 327 (1989)). The

second standard is the familiar standard for a motion to dismiss under Federal Rule of Civil

Procedure! 2(b)(6)

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

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14 does pot resolve contests surrounding the,facts, the merits of; a claim, or the applicability of

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defenses” Republican Party ofN.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A

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Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In

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considering a motion to dismiss for failure to state a claim, a plaintiff’s well-pleaded allegations

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are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan

Labs., iric. v. Matkari, 7 F.3d 1130,1134 (4th Cir. 1993); see also tifartin, 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

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not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662,679 (2009).

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Tile Federal Rules of Civil Procedure’“require^ only ‘a short and plain statement of the

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

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what the

claim is and the grounds upon1 which it rests.’” Bell AtLCorp. v. Twombly, 550 U.S.

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544,555 (2007) (second alteration in original) (quoting Con/e^v! Gibson} 355 U.S. 41,47 (1957)).

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

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a “formulaic recitation of the elements of i cause of action.” 'Id. (citations omitted). Instead, a

plaintiff must 'allege facts sufficient “to raise a right to retieif above the s^ectilative level,” id.

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(citation omitteh), stating a! claim that'is “plausible bnits fade,” :/^.':at'570, rather than merely

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Case 3:I8-cv-G0597-JAG-RCY Document

lent 152

152 Filed 09/21/20;.;;Page3 of 15 PageiD# 1843

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, conceivable,?’ id. “A claim has facial plausibility when the plaintiffpleads factual Content that

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hv-"-------■ 4allfiws the,court to draw the reasonable inference that the defendant's liable for the misconduct

PA gllefied.’?-j<yfa/;:556 U.S^at 678 (citing Bell All:Corpii 550 U.S/at 556). In order for a claim or

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Sffnplaint to survive dismissal for failure to state aclaim, therefore: the plaintiff must “allege facts

sufficient to state all the elements of [his or] her claim.” Bass v. EJ. DuPont de Nemours & Co.

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124 F.3d ,76.1, 765 (4th'CiY,2003)(citrng Dicksony. Microsoft Corp4^309-Fl3d fe 213 (4th Cir

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2002); Iodice wJ United Statesf289 F.3 d 270.281 (4th Cir/2002^ ' '*

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_ Where the context ; . . makes clear■& litigant’s essential grievance, the complainant’s

jdditional, invocation of; general llegal principles need not detour the iiiistriet court from resolving

that.which the litigant himself has shown to be his real ccmcenuimBedudett v, City ofHampton.

cl^lm^^^^iornnlaints.

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inmates advocate,

sm sponte developing statutoiyand constitutional claims theinmaie failed (o deirly raise on the

;•:=:,: -Rif;R” ^matter is 42 pages long and contains; 1,1: Separate claims for relief.

In this Memorandum Opinio^ the Court only, recites those allegations pertinent to Claims 4, 8, 9,

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coir&ied in' d^e Lawr^cewUe^or^

(“LCC”).

(Compl'2':23^;®<li^

(Compl.. 2,23.) LCG is operated by Global Experts mrOutsourcing;(“Geo?’),' a private, for profit

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e^°yf ^ paginati°n assigned bytheCM/ECF docketihgsystem; The Court ~

correctsdispelling “andpitoctuatiori ifr the

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corrects some, but.not alljjofthe capitalization in the quotations from Chapman’s submissions/

The Court/omits some of the 'excessive1 emphasis m the quotations fromfehapman’s submissions.

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Case 3:18-cjM)0S977dAG-RCY Document 152 Filed 09/21/20;7page 4 of 15 PaqelD# 1844

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Cha^m^Botes jhat the hbrarj^nJ^ h^s a Black Authors and Spanish Language section with a

is offensive,

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for Caucasian authors to the attention of Defendant

Moore and Smith/: (id.); Defendant Moore became agitated and'asked Chapman1 if he was a racist

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in the presence of theother inmates m the library; (Id) ; “Moore’s asking Chapman if he is racist,

is racistIs NOT a‘jra^st ktidis NOT res|onsi^ fir slavery.” “ *

(Id. at 11)

t Based on the foregoing :allegatiOns, Chapman makes thefollowing claim:

claim

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:In violation of Chapman’s rightitoequal protection::and;to be free from cruel

^ ’ rAr'ST“^“niShm^t’ “Smf-M?or=.and ^

Chapman of bcin8

RACIST. - When a white man stands for his nghts he is called racist, when blacks

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atV ^ review Defendant Jones’s decisions ™th respect lo processing of

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* loiig narrative of iiisiaciai grievances. However, in the

Complaint, Chapman is less than'clear as to winch'sleight Chapman!perceives as giving rise to his

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tfSi^hapman’S^clearest ^cidat^r^fhisliHdi^dukl claims appears

m Chapman’s Resporise-to the Mbtiori for1 Summary Judgment'fiiM bjf?Other^rorreCtiohal officials

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4»'2-2-) Chapman contends that Defendants Jones,

wooason,. ana Cosby repeatedly denied him trackmg, numbers- for his grievances when the

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The

. sh^r^?yere moldy and dirty; (A* at 31432®Although Defenda^iiTbfg^isbn^sent a crew of six

inmates todean the showers, only two of the inmates worked on cleaning the showers, while the

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because, filter alia, the concrete Was coming off of theiwdlisj'diereon the'floors, there

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^ie cleaning

chemicals were not properly mixed, insufficient cleaning chemicals'were provided,'Torgenson

failed to inspect the showers, Tprgenson misappropriated the fundsifor cleaning the showers, et

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1 •), Defendant Jones refused ^pro<^.Aei^l^^Ji^&eit addressed

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.ogi- fpicitiii (Compi. 29., iiifiiiii§#» ■

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On November: 22, ^017,1 Chapman was in the dining half when he asked T. Sommerville,

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remark. (Id) “Sommerville did not say this to any Black inmate, only to Chapman, because he is

White.’at 34.) Chapman filed a grievance concerning’the’'above incident. (ECF No 2-9 at

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Chapman .personal,.loss, ofoharm.^:;-(Id.■.,.at; 2.) ?•: Chapmanrappealed^that:intake decision. (Id.)

Defendant Woodson upheld the intake decision. (Id)'

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,V On-June 4,2018, Chapman asked T. Sommerville if she^ould get someohe to wipe down

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the table where Chapman, wanted to eat because.vthere was; smeared^ peanut butter bn the table

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kitchen worker, who,was bljaclc:: Instead, lie picked up trays arid ttipbd the table for blacks only.

Sommeryille said, the worker was not going to wipe that table:’,i'Blatarit racist and gender bias ”

On July 17,2018, Chapman and another white inmate wereisitting at a table that was dirty.

35.). Chapman asked Correctional Officer Thomas if;she 'could: get Someone to wipe the

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Cla™ *M}3$^^^sibns^Defehdant Jo^iifbdfe and Cosby denied

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iS«l“ber.^>r;his. grievance Jhatipertained to. “ALL BLACK

^o a^&AeiKU to such action,

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' violated his rights under the Eighth Amendmeat and his rights: to, due process and

. i. .^ ' ;equal protection under the Fourteenth Amendmenfcs(eomi)1. 22:)4 .

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; Claim;

' (a) Defendant Jorgenson’s failure to keep th^ shower^ clean violated Chapmans’s

'•- -i right under the EighthmiTFoi^eehtkA^

4;-1 (b) Defehd^t Jones ^refeeditb^give Chapmah^nevanceitrackihg number for L.

: " Bf* tffi^TdtgensMVsdfoty officwVcoiK^r^ng'hn^^tow^^^l^CECF^Io^?, at 8.)

’ ■ f‘ ‘; Such actions violated Chapman’s“First and Eighth-Amendment right[s] to petition

4.' thO govemmOnt for iinsanitary showers.” (Id. at 32.)

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' Claim 1 Q.*-w -^“T> Sommerville said. 4Shit- happens. Deal with-it.’ and refused to have the table

-. vriped cleanlwiiere Chapm^

at this racist act.” (ECFNo.* ‘97, at 8 j Chapman'cdntchds that such actions violated

Claim 1 r;- i VIi. :Th6ma!s, ;wheh'Chapman a[sked lier if she,;would get someone to wipe off the

■ ; table where Chapman and [die] white irie[n] ate,: veiled. “I am not going to do it. I

. Mii : am not going to do it.’’^ “Mv name is Thomas.’’'IfECFiNo. :97,at 8.). Chapman

! i“o5ic0ntends:that 2such. actions violated his rights sunder! the; Eighth and Fourteenth

itisbotKunnecessaiiandinapptopriatetoeng'age m^Cxterided'disCiissibri of the lack of

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merit to Chapman’s theories for relief. See Cochran v. hiorris,73;F;3cl 1310; 1315 (4th Cir. 1996)

(emphasizing that abbreviated treatment is consistent withCongresss vision for the disposition

. of frivolous or “insubstantial claims” (citing Neitzke'vj fP////a^:.496';tT:S.;319,;324 (1989))).

In this regard,: Chapman Has asserted throughout his Complaint that the actions of various

defendants amounted to discrimination in violation of hiS rights tinder the Public Accommodations

AcC42 U:S.C. § 2000a,ie/!ie^. v(5ee;! e.:g.iCompirat 36.) HoweWfcitthe Public Accommodations

Act, 42 U.S.C. § 2000a, et seq;; does not'{^ry;1o'pn^iu!?!''itit/'c^>:!k<;f^i^;'hid.v>98^3760,1999

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; 4“pptis nowwell Established that the;Ei^thAmendmen^-serves as the primaiy source of

substantive protectioh to donvicted prisoners,’and the Duel Process! Clauseaffords a prisoner no

greater ^mh^^tSctidri^dddsith^ Crdefand Urhid«^fridhts Cl^se.’’’ ^Williams

v. Benjamin,: 77rF:3dV756^768; (4th;Cir;; 1996) (quoting; WhitidyWMers, 475 U.S. 312, 327

(1986));f;^us^Giiaj^mw's'-F6urteeh&'"Amen^eht'Vubsiwj[ive|'ciiKfpi:d(^S;claim'is subsumed

within his Eighth;Amendment claim.: P^'lPPP '■ .

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WL 645951, at *2 (6th Cif: Aug; 13,^ 1999) t«tii«-^2!U;S:e>§,-20()0a(b));;;Paffer1so« v. W. Va.

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%Reg,VJam& Cofr.^Facility Auth:,m.r3:l l-CV-00943, 2012 WE 3308607; at *1 (S.D.W. Va.

3 July 3,: 2012)i report}arid ■recommendhtionyadopted^ub mm:;^Mirs6n y. W^ Va. Reg’l Jail,

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VNo. 3:1 l^gV-00943,-2012 WL 3295876 (S.D.W. Va. Aug.'iq;-2012):;.tAcconimgly, all of

Zhapman’sclaims seeking !relief under Public AccoinmodationsrAct, 42 U.S.C; § 2000a, et sea.

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f not a person for purposes 42 U.S.C. § 1983 'anti is immune fiams(3^WUl^Mich.Dep ‘t ofState

<5 Police, 491 U.S.58, 66 (1989). Accordingly, -all claims against Commonwealth of Virginia will

/^be'DISMISSEDrSl^allyftivolous..

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; To /state ; an Eighth -Amendment claim, an inmate must allege facts snowmg (1) that

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■ 13 objectively the deprivationbfabasic human needwas:'sufficiently serious,’ and (2) that

it/ subjectively, the prison officials;acted with a sufficiently ciUpable state .of:

Johnson v.

,r Quinones' \AS~F3d 164Sl67 (Weirj'1998) (quoting WilsonyjSeiter^50tU.S; 294,298 (1991)).

i & Under the objective prong, the inmate must allege facts ,to suggest that the depnvation complained

jy of was extreme and amounted to more than the “routine discomfort’’ that is part of the penally

y^that criminal offenders pay for tiheir offenses against society ”}\Stricjder y. Watersi989 F.2d 1375,

/O1380 n.3; (4th Cif:^1^93) (quoting 7/Mi&bh v;i;!McM//wni''503 -U.S.^ij-9’(1992)). “In order to

demonstrate such an' extreme depnvation, a prisoner must allege a senous or significant physical

or emotional injury resulting from'the (challenged conditions.’” -De ’Lohta v. Angelone, 330 F.3d

630.634'(4thCir."2(103) (quotingS/rfcWcr, 989 F.2d at 1381). 'witii'r^lptlo claimsofinadequate

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, The subjective prong requires the plaintiftto allege factsthat indicate a particular defendant

/ Breman> 5} 1 U.S. 825, 837.(1994)., “Deliberate indifference is a very high standard—a showing

;fillllf.......

of mere negligence will not meet it.” Grayson v.Peed, 195 F.3d*692, 695'(4th Cir. 1999) (citing

y Estelle v. Gamble, 429 U.S. 97,105-06 (1976)). *

....

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•

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[Al prison official cannot be found liable under the Eighth Amendment for denying

an inmate • humane j conditions of confinement; unless the Official knows of and •

disregards aniiexcessive risk to: inmate health: or safety; :the; official must both be ’

;‘;i •!:

*e inference could be drawn tliat a substantial risk of

ha™ exists; arid he must also draw the inference. \ > '• ;i i; ^ ^

/ J Farmer, 511 U.S. at 837. Farmer teaches ‘Ihat general knowledge1 of facts creating a substantial

/V/nsk of harm is not enough, i The prison official must also draw the inference between those general

Y facts

^e ^specific?: risk, of h^lrm: Co^ontiiig the inmate.” ‘ Quinones,* 145 F.3d at 168 (citing

1'if

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;i29;F.^d ^3^;: 3^ 8 ^h^Cir;a ^97)^ ■ Thu^ to survive

iv ..»..< ,»•«

\M l>ann” and'“that flic official in question subjectively recognized that his [or her] actions were

23 ^n.^dr2.i d.im.

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I subjected him to a substantial riskof serious harm.DeXontamtFulmorerfASXJSwpp- 2d 687,

*: 691(E.p.;;Va. 2010) (citmg Moodyy. Grove,No, 89-6650,;1989iliilSIiiifil

;•

iWI;;107604, at * l (4th Cir. Sept.

,_:

y\ J •>- *

V 2 1 ?,198?)) (“Verbal abuse of inmates by prison officialsT without more:-does pot rise to the level

*4 of an Eighth Amendment violation.”-):

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Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979)).

Tbe Equal Protection: Clause of, the; Fourteenth Amendment bommands that similarly

*f situated persons be treated: alike; ";See City ofCleburne v. Cleburne Living Ctr.,ATS U.S. 432,439

rt }:;5

) 6 (1985) (citing P/)>/erjV.ij£)oe,:457U.S. 202, 216.(1982j). H;T6-state; ah equal protection claim,

^at piausibiy suggest: ; (1) . ‘that he has -been; freated differently from

(j intentional discrimination.1; ^Morrison^v.'|I&drmg/i^,'239 F'.3d 648j*654 (^ Cir. 2001). To succeed

, .siffasa®^

• I.

yy.ppiffifiiMyi.y:

“the court

(l proceeds to determine whether the disparity m treatment can be justified under the requisite level

of scrutiny.’’;: 'Morrison^

Mat. 654 (citation^6mitted^!^‘Iriia prison context,” disparate

ICf treatment; passes muster so long as ihe disparate treatment .is;: reasonably related to [any]

Jd legitimate penological interests!’ ’, Vehey v. Wyche, 293 :F.3d 1726^732 (4th Cir. 2002) (alteration

<:•

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be free from

A3discrimmatipnu^

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^Casea;l^^Q^jS^^R^£Docui^^2^i!^d a9/2iM)^^^:bti5;iPagelD#i651

' 5- i::J;;fey:5';:-^:*i::^'-?ni:j';;^;='.'t:;:I;I^V;:1 :.^:^■>:?^:;'i:-. v:^.Vi?;?--:r.A• ;?■, • ■:•

/ affords noigreater protectidn to; be free from government discrimiriatibri;than the equal protection

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r-: clause m<the Foimeenth Amendment^ [so] the jsame analysis-applies to [Chapman’sJ claims under

.;rnr .

' J both his federal and state law claims.” Farfeyp: Clarke, Ko.7:l'|?^^q1,^2;M^1wi;8540135,

•k-V

V at *18 n.25(W.D.:Vai,Dec.;27; 2016) (citing Leex York GtysScfcpiy.yAl 8 F. Supp. 2d 816, 835

’

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In Claim 4, Chapman contends that his right to equal protection was violated when he asked

9 about the absence of plaques for,Caucasian authors and Defendant Moore asked if he was a racist.

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//> Initially,-the Court notes that Chapman fails to allege facts that indicate he;was treated any

I? DcLdmt Mo^^|i(«fcmwCra^st^d^usivc, that faci:alpne;wouid not support an equal

IV protection claim!

Cir. 2008)

iC that coiild not support a!traditional equal protection claim 1 ,i i.'tylJewti v. Jacks, 486 F.3d 1025,

17 1028 (8ttiCir. 2007j (‘‘Verbal abuse by correctional officials,reventlieusedf reprehensible racially

(8th

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Dl\. Claim 8 r

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2 In Claim 8, Chapman coritend^that^ offlwenty-pnig^ccas^^Defehdants Jones, Woodson,

;

%■■ and.Gosby^yiolated his right, to. equal protectiqriwhentheydeniedhim4tracking number for his

grievances that pertained to “ALL BLACK OFFICERS and Staff.” 1 (ECF No. 97, at 7.)5 The

$ record .reflects -that ..Defendant Jones conducted, the /initial intake^reviewjbf grievances at LCC.

£ Although,Chapman is quick to attribute racialanimus to nearly 'every1 action by prison officials, he

~7 fails to (jjhectithe-Court ;to‘statements in the: intake^decisions :ofihis?grievancesthat; reflect racial

animus. Rather, Defendant Jones regularly. refused to assign Chapman’s: grievances tracking

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numbers because .she concluded; that Chapman’s grievances failed to pass the intake criteria !

‘Q

because;70fi'7»rer.:-a/te,.'iflieir:..trivial- nature. ; ! For example, Defendant Jones refUsed.to process

■ '

Chapman’s trivial grievances about the refusal df staff to vripe^downlliiS; table or Correctional

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1%. Officer Sommerville’s “shit happens,’,’ remark because Chapman was not harmed by this conduct.

. ,

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J% When Chapman; appealedIthdse intake decisions,1 fliey ’were upheldiby-defendants .Cosby and

/ V Woodson. Chapman does not direct the Court to Similar'msubstmfiy grievances or nohcomplying •

jfii^rt.l‘ciiapSni^n.|^ill^:iiiege facts' that plausibly suggest thk Defendants'Cosby and

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at LCC

It is

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the

•' ^^8t;||;Defeh!d^t8J6heS; {filed a• -Nfotion^fixrlifewtS^Tress^pMect'^ico*-’ die equal

protection-aspects:of Claim 8. [ The .Court will address the {equalxprotection aspects of Claim 8

against Jones in the' separatb^emo^^

Opinion resolvmg herMotiohfdf Summary Judgment.

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of Claim 8 against Defendants Cosby and Woodsy will be DISMISSED for failure to state a claim

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their failure to’properly'process ;his_ grievances^ It is .clear:tliat'4ynmates .have no constitutional

entitlement orrduevprocess interest'in access;to a grievance procedure;’’/Booker v. S.G. Dep’t of

Corr.tl855 F.3d'533; 541 (4th Cir. 2017). Therefore, any alleged errorstin the processing of

Chapman’s grievances do not amount to a denial of dueprocess.j.Accordingly, this aspect of Claim

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8 against Jones, Cosby,land ;Woodson fails to: state a claim and ds degallyi: frivolous and will be

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The bidy- remainihg‘aspect of Claim 9 is; Chapman’s'contention that Defendant Jones s

failure to process his grievance pertaining to;the unsanitary showers depriyecl (Chapman of his First

Amendment riglit ttf petition fe GoVernmeng^W|il^p^(m;cfells^nnot1 retaliate^against an

fusing

omitted)?; Accordingly, this ai^ect of Claim 9 will be DISMISSED fr^faUure;tp state a claim and

■

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In thb ’first portion otf.ciuihi:;ld,'!-Clu^(9uin ^n^D^^-Oictfllie^a^^^lenied equal protection of

the

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becausehe;isWhite.

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(Id. -ak 34.) Chapman, however, Tails: to-alleges facts that he was treated

^ differently than any other: inmate

use ^o~pther:ihmate complained'about:the lack of cups. .

3- ■ Chapman’s perceived racial sjight fails:to support and equal; protection:,claim.ylfrnaw'/v. Mich.

: .7 . Dep ’t of Corr.j 432 F;;App’x 453,459 (6& CihpOll); isee Z,ew/i}J486;Ei3d at.1028;: ’

J—

h; In uie second portion o£Claim l0, Chapman contends;that He;was ;denied equal protection

& because Correctional Officer Sommerville refused to make a black kitchen worker clean off a table

^ where Chapman was sitting with^other rwhite inmates. ^ While Chapman-insists that Correctional

Officer Sommerville’s inaction is attributable ito racid animus,1 that allegation is conclusory and

■ ^;4;:|a!:|gi4«5|i;:ys;:?>{!;;:------6 implausible under the facts! alleged. See Ashcroft v. Iqbal, 556 U;Sl662, 682 (2009).'Chapman

■

it, does not allege that inmates were prohibited from cleaning off their own tables. Nor does the

n Cpmpiaihtl indicate that^Correctional Officer Sommerville niade! kitchen .workers clean off any

/l other tables at the request of other inmates. .VAccordingly;; Chapman . fails to state an equal

/ 3 protection claimiragainst Correctional Officer Soriunerviile for?her; lack :of action. Claim 10 will

ft be

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[ f prohibited from cleaning off their own tables.; Nor does the Complaint indicate that Correctional

s?,/) Officer Thomas made kitchen workers clean off any other tables when requested by other inmates. ,

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21 Accordi^i^^i^li wilf beDISMISSEb for^liiret^stat^a'clamahd'as legally'Mvolous.

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All claims against the Commonwealth of Virginia will be DISMISSED All claims seeking

relief uncjer Public: Accomrtiodations Act, 42 U.S C § 2000a, eiseq, will be DISMISSED. Claims

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4,-9j-10, and f li will:be DISMISSED.'.-The.Eighth Amendmentiand-dueprocessiaspects iof Claim

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8 will' b.c-DISMlSSED1 against-Defendant-rJpneSjViWoodsbn,.,arid Cosby. The‘ equal protection

, ' f aspects iof'Claim:8 will.be;DISMISSED;agamstDefendants«Wootlsqn;and .Cosby; ;.The Motion tO'

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Dismiss (ECF No. 69) will’be G&ANTED. '

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‘An'appropriateOrder.will accompany'.this Memorandum.Opinion::, ;

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i IN i?HE UNITED STATES DISTRICT COURTa i

teOR THE EASTERN DISTRICT OF VIRGINIA

''' §

;; '' Richmond Divisioni

LOUIS ROY CHAPMAN,

Plaintiff, .

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PHYLLIS-SMITH, etal, :

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' .Civil Action No. 3:18CV597

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ORDER '

Inaccordance with-the accompanying Memorandum Opinion, 'if |s,herel?y ORDERED

that:

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All claims against the Commonwealth of Virginia ;afe DISMISSED.

All claims seeking relief under Public Accommodatioiis-Xct, 42U.S.C, § 2000a, et

seq, are DISMISSED.

■,

. ;

Claims. 4, 9, 10, and 11 are DISMISSED.

The Eighth Amendment anddue process aspects'of Claim 8 are DISMISSED

against Defendant Jones, Woodson, and Cosby. The-equal protection aspects of

' Claim 8 are DISMISSED against Defendants Woodson and Cosby;

5.' ’ The. Motion to'Dismiss (ECF No. 69) is GRANTED..:;:.:

: '■ L !,,U: .

. TheClerk is DIRECTED to send the Memorandum Opinion:and,Order to Chapman and

1.: ' 2.::'

counsel of record.

; ; i

It is so ordered:

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John A. Gibney, Jr. -J J /

United States Distinct Jhdge

Date: 2-j

Richmond, Virginia'

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IN THE UNITED STATES DISTRICT COURTS

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

LOUIS ROY CHAPMAN,

Plaintiff,

Civil Action No. 3:18CV597

PHYLLIS SMITH, et al,

Defendants.

MEMORANDUM OPINION

Louis Roy Chapman, a Virginia inmate proceeding pro se and in forma pauperis, filed this

civil action under 42 U.S.C. § 1983.1 In his Particularized Complaint, Chapman alleges, inter alia,

that while incarcerated at the Lawrenceville Correctional Center (“LCC”), the Defendants2

violated his rights under the Equal Protection Clause3 by discriminating against him in a variety

That 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

at law....

42 U.S.C. § 1983.

2 The named Defendants are: Phyllis Smith, an Education Director at LCC; D. Kreitz, a

Job Coordinator at LCC; Shaniqua Moore, a Law Library Supervisor at LCC; Dave Robinson, the

Chief of Operations for the Virginia Department of Corrections (“VDOC”); T. Walker, a

Recreation Supervisor at LCC; Marilyn Shaw, Chief of Housing and Programs at LCC; Crystal

Jones, a Facility Ombudsman at LCC; Renee Woodson, a Regional Ombudsman for the VDOC;

K. Cosby, another Regional Ombudsman for the VDOC; L. Torgenson, a Safety Officer at LCC;

Corrections Officers T. Neville, T. Sonunerville, K. Thomas; Global Experts and Outsourcing,

Inc. (“Geo”); and, the Commonwealth of Virginia. (ECF No. 27, at 1.) Chapman has thus far

failed to serve Defendants Smith and Kreitz.

3 “No State shall... deny to any person within its jurisdiction the equal protection of the

laws.” U.S. Const, amend. XIV, § 1.

of ways because he is a white man • (ECF No. 27, at 3—7.)4

The Court construes Chapman’s

pleadings to raise the following eleven claims for relief:5

Claim One:

Defendants Smith, Kreitz, and Shaw will not process Chapman’s job

application for various clerk positions because Chapman is white, and they

have only hired “Black and Hispanic” clerks. (ECF No. 97, at 6.)

Claim Two:

Defendants Smith, Moore, and Shaw have “a black authors and Spanish

language section with a plaque,” in the “regular libraiy,” but “there are NO

plaques for any other race in the world.” (Id.)

Claim Three: Defendants Smith, Moore, and Shaw “included Martin Luther King Jr.

[Day] on the law library/libraiy calendar... [but] did not include Robert E

Lee [Day] or Thomas “Stonewall” Jackson Pay], but closed the law

library/libraiy both dates.” (Id. at 6-7.)

Claim Four:

Defendants Smith, Moore, and Shaw “accused Chapman of beine

RACIST.” (Id. at 7.)

Claim Five:

Defendants Smith, Moore, and Shaw “had a black history program

scheduled ... the only race ... given special treatment.” (Id.)

Claim Six:

Defendants Smith, Shaw, Walker, and Geo “designed recreation for blacks

only.” (Id.)

Claim Seven: Defendants Shaw, Robinson, and Geo “have a contract to air TVONE, an

ALL slack TV channel,... in ... [the] dayroom ... TVONE’s language

is racist and carries sex offenders . . . there is NO ALL WHITE TV

channel.” (Id.)

Claim Eight: Defendants Jones, Woodson, and Cosby denied Chapman a tracking

number twenty-one times for “regular grievances for ALL Black officers

/ 7?le Court employs the pagination assigned by the CM/ECF docketing system to the

parties submissions. To the extent possible, the Court corrects the spelling, capitalization and

punctuation in the quotations from the parties’ submissions.

. .

hand-wntten, forty-two-page Particularized Complaint, which can most generously

be described as rambhng, disjointed, and, at times, incoherent, Chapman fails to delineate clearly

rlTxno m r101? c mS- (See^F No*27’at 1"42-) Fortunately, in his response to one of the

pending Motions for Summary Judgment presently before the Court, Chapman offers a more

IecfNo JrSKn H°f- WS • Clai?[S ^der ^ heading “Snmmary of Claims.”

(LCF No. 97, at 6-8.) Having reviewed both documents, the Court will refer to this latter iteration

or Chapman s claims to help frame and contextualize the issues before it.

and staff.. . giving Chapman a tracking number for a white officer only.”

{Id.)

Claim Nine:

Defendant Jones “refused to give Chapman a grievance tracking number for

L. Torgenson, safety officer, concerning unsanitary showers.” {Id. at 8.)

Claim Ten:

Defendant Summerville “said ‘shit happens, deal with it.’ and refused to

have the table wiped clean where Chapman and other white men ate . . .

racism. .. [Defendant] Neville laughed at this racist act.” {Id.)

Claim Eleven: Defendant Thomas “yelled” at Chapman, “I’m not going to do it,” when

Chapman requested that she “get someone to wipe the table off where

Chapman and [other] white men ate.” {Id.)6

Defendants Cosby, Woodson, and the Commonwealth of Virginia filed a Motion to

Dismiss. (ECF No. 69.) The Court granted that Motion and dismissed the claims against those

Defendants in a contemporaneous order. {See ECF No. 153.) In so doing, the Court exercised its

duty under the Prison Litigation Reform Act (the “PLRA”) and dismissed some of Chapman’s

claims because they were frivolous or failed to state a claim. Specifically, the Court: dismissed all

of Chapman’s claims against the Commonwealth of Virginia; dismissed all claims under the Public

Accommodations Act; dismissed all aspects of Claims 4, 9, 10, and 11; dismissed the Eighth

Amendment and due process aspects of Claim 8 against Defendant Jones, Woodson, and Cosby;

and, dismissed the equal protection aspects of Claim 8 against Defendants Woodson and Cosby.

Thus, only Claims One, Two, Three, Five, Six, Seven, and the equal protection aspects of Claim

Eight against Defendant Jones remain.

Chapin also characterized his pleadings as stating a twelfth claim against Francis

Jordan, J. Worsham, and Marc Finney for alleged false statements. These individuals are not

parties to this litigation. Chapman sought to add them by way of a Motion to Amend and a

Proposed Second Particularized Complaint. (ECF No. 61.) The Court, however, denied that

motion to amend. (ECF No. 98, at 3-4.) Accordingly, the Court will not address Chapman’s

putative twelfth claim.

The matter is before the Court on the Motions for Summary Judgment filed by Defendants

z Geo’ Jones, Robinson, Shaw, Walker, and Moore (the “Defendants”) as to Chapman’s Equal

) Protection Clause Claims. (ECF Nos. 79,103.) Chapman has responded. For the reasons stated

(f below, the Defendants’ Motions for Summary Judgment will be GRANTED.7

I. Summary Judgment Standard

Summary judgment must be rendered “if the movant shows that there is no genuine dispute

^t0 nny material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

if*

56(a). It is the responsibility of the party seeking summary judgment to inform the Court of the

basis for the motion and to identify the parts of the record that demonstrate the absence of a genuine

issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[Wjhere the

nonm gyjpg party will bear the burden of proof at trial on a dispositive issue, a summary judgment

motion may properly be made in reliance solely on the pleadings, depositions, answers to

interrogatories, and admissions on file.” Id. at 324 (internal quotation marks omitted'). When the

motion is properly supported, the nonmoving party must go beyond the pleadings and, bv citing

affidavits or “‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific

(6 /acts showing that there is a genuine issue for trial.’” Id. (quoting former Fed. R. Civ. P. 56(c) and

56(e) (1986)). Mere conclusory allegations and bare denials are insufficient to support the

nonmoving party’s case., Erwin v. United States, 591 F.3d 313,319-20 (4th Cir. 2010).

7 In addition to the Equal Protection claims addressed by the pending Motions for Summary

lodgment, Claims One, Two, Three, Five, Six, Seven, and Eight, when liberally construed, also

allege violations of Chapman’s Eighth Amendment rights under the United States Constitution.

(See ECF No. 27, at 6, 9, 11, 15, 16, 19, 22.) These claims were not addressed in the pending

Motions for Summary Judgment. Accordingly, the Court does not address them now.

Nevertheless, as noted above, the Court previously dismissed the Eighth Amendment aspects of

Claim Eight.

In reviewing a summary judgment motion, the Court “must draw all justifiable inferences

)

in favor of the nonmoving party.” United States v. Carolina Transformer Co., 978 F.2d 832

(4th Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., All U.S. 242, 255 (1986)). However, a

mere scintlIIa ofevidence will not preclude summary judgment. Anderson, All U.S. at 251 (citing

ImProv^ Co. v. Munson, 81 U.S. (14 Wall.) 442, 448 (1872)). “[Tjhere is a preliminary

(

qUCStl0n for

Which a juiy could Pr°perly Pr^eed to find a verdict for the party . . . upon whom the onus of

proof is imposed.” Id. (quoting Munson, 81 U.S. at 448). Additionally, “Rule 56 does not imp

,835

JudSe> not whether there is literally no evidence, but whether there is any upon

ose

ip upon the district court a duty to sift through the record in search of evidence to support a party’s

°PP°sitionsummary judgment" Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (quoting

Skotak V. Temeco Resins, Inc., 953 F.2d 909, 915 & n.7 (5th Cir. 1992)); see Fed. R. Civ. P.

,*; 56(c)(3) (“The court need consider only the cited materials

In support of their Motions for Summary Judgment, Defendants submit: (1) the Declaration

Anthony Parker, the Chief of Security at LCC, (“Parker Decl.,” ECF No. 80-1);

*e Declaration of Marc L. Finney, the current Librarian at LCC (“Finney Decl.”

(5) the Declaration of Andrea Green, the current Job Coordinator at LCC

(“Green Decl.,” ECF No. 80-3); (4) the Declaration of Defendant Jones (“Jones

Decl.,”

ECF No. 80-4); (5) VDOC Operating Procedure No. 866.1 (“OP 866.1,” ECF No. 80-5);

/f (6) an Offender Grievance Report for Chapman (“Grievance Report,” ECF No. 80-6); and,

£0 (7) a spreadsheet relating to certain grievance responses (ECF No. 80-7).

In response, Chapman submits, inter alia, several of his own affidavits (see ECF Nos. 9722 1»97-6, at 10-11,18-20; 97-7, at 7-16; 105-2), which are mostly handwritten and at times difficult

? 5 to decipher, as well as a host of documents relating to his various grievance proceedings (see ECF

Nos. 97-2; 97-3; 97-4; 97-5; 97-6). The Court will consider these submissions in determining the

propriety of the Motion for Summary Judgment. See Fed. R. Civ. P. 56(c).

The Court resolves this matter in light of the foregoing principles and draws all permissible

inferences in favor of Chapman.

II. Applicable Law

The Equal Protection Clause of the Fourteenth Amendment commands that similarly

situated persons be treated alike. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,439

(1985) (citing Plyler v. Doe, 457 U.S. 202,216 (1982)). To survive summary judgment, a plaintiff

must demonstrate: (1) “that he has been treated differently from others with whom he is similarly

situated,” and (2) that the differing treatment resulted from intentional discrimination. Morrison

v. Garraghty, 239 F.3d 648,654 (4th Cir. 2001). In so doing, the plaintiff must set forth “specific,

non-conclusory factual [evidence] that establishes] improper motive.” Trulockv. Freeh, 275 F.3d

391,405 (4th Cir. 2001) (quoting Crawford-El v. Britton, 523 U.S. 574, 598 (1998)).

If a plaintiff satisfies the above, “the court proceeds to determine whether the disparity in

treatment can be justified under the requisite level of scrutiny.” Morrison, 239 F.3d at 654

(citations omitted). “To account for the unique health and welfare concerns in the prison context,”

btb TIilv

t/wUfc f'Z'

t-L

the Court s “review of a plaintiff s prison decision or policy is more demanding, as [courts] ‘accord

deference to the appropriate prison authorities.’” Fauconier v. Clarke, 966 F.3d 265,277 (4th Cir.

2020) (quoting Turner v. Safley, 485 U.S. 78,85 (1987)). “In a prison context,” disparate treatment

passes muster so long as “the disparate treatment is ‘reasonably related to [any] legitimate

penological interests.’” Veney v. Wyche, 293 F.3d 726,732 (4th Cir. 2002) (alteration in original)

(quoting Shaw v. Murphy, 532 U.S. 223,225 (2001)).

fit Co»'t has /

22 c

Cdh-tis

cjy Y~fiJ<. 7

/£>i€-uJ/~2s~~ a>J<r—

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The Equal Protection Clause does not require “things which are different in fact or opinion

to be treated in law as though they were the same.” Moss v. Clark, 886 F.2d 686, 691 (4th Cir.

1989) (quoting Plyler, 457 U.S. at 216). Instead, “the class to which [an inmate] belongs consists

of the persons confined as he was confined, subject to the same conditions to which he was

subject.” Id. (alteration in original) (citation omitted).8

Tlkc'(Af/il czSJooo. 72? -e>i

/ 7~Yfj Cou.it /i<zu

Chapman has alleged a host of putative equal protection violatioj&ondie^part^

staff, which he maintains were motived by the fact that he is a white man. As noted above, the

Court has already dismissed a number of Chapman’s claims as frivolous or otherwise failing to

state a claim. The Court now addresses each of the remaining claims in turn.

Gender Bias

In his Particularized Complaint, Chapman alleges that he was discriminated against by the

Defendants on the basis of “Gender Bias” and “Racial Discrimination.” (ECF No. 27, at 3.) As

an initial matter, the Court notes that, in actuality, the gravamen of Chapman’s claims relate solely

to the issue of racial discrimination. Nowhere in his pleadings does Chapman allege, must less

prove, that he was treated differently than a similarly situated female. See Morrison, 239 F.3d at

654.

Chapman also alleges the Defendants violated his right to be free from discrimination

under Article I, Section 11 of the Virginia Constitution. Because “[t]he Virginia Constitution

affords no greater protection to be free from government discrimination than the equal protection

clause in the Fourteenth Amendment, the same analysis applies to [Chapman’s] claims under both

... federal and state law.” Farley v. Clarke, No. 7:15-CV-00352,2016 WL 8540135, at *18 n.25

(W.D. Va. Dec. 27, 2016) (citing Lee v. York Cty. Sch. Div., 418 F. Supp. 2d 816, 835 (E.D. Va

2006), and Archer v. Mayes, 194 S.E.2d 707, 711 (Va. 1973)), report and recommendation

adopted, No. 7:15-CV-00352, 2017 WL 1049579 (W.D. Va. Mar. 17, 2017). To the extent the

Court resolves any of Chapman’s federal claims, the same resolution applies to his corollary state

claims.

)

Accordingly, to the extent any of Chapman’s claims allege gender bias, that portion of his

claims will be DISMISSED.

Claim One

In Claim One, Chapman alleges that Defendants Smith, Kreitz, and Shaw would not

processOjapman’s jobap^g^^ariousclerlc positions because Chapman is white, and they

(

haveonly MrecT-BlScand Hispanic”cl«ks'. (ECTNo.^doTssSdttov^^nhas

ftU yYt />f^c/0

thus far failed to serve Defendants Smith and Kreitz. Accordingly, the Court will address Claim

One only insofar as it pertains to Defendant Shaw.

G/ c*/f

T~fi u } / ^ 1}

For purposes of summary' Judgment, tKefollowing'fa

facts are established. it-arrinmate ~~

firO fa 7^7

wishes to apply for a job, he or she submits an application to the job coordinate!?

(Green Decl. f

7.) The job coordinator reviews the inmate’s qualifications, and if qualified, sends the application

j-x to the job supervisor. (Id.) There are various criteria for screening candidates, including

disciplinary history, security classifications, and education. (Id.) Race is not a criterion. (Id) If

/V an inmate is deemed unqualified or the job sought is not available, the job coordinator returns the

/(’ job application to the inmate with an explanation. (Id. f 8.) If an inmate is placed in a job, the job

ti coordinator will retain a copy of the inmate’s application. (Id.) If the inmate is not placed in the

11x6 application is not retained. (Id.) There are presently “no open positions available.”

//- {Id. 1J9.)

Chapman argues that Defendant Shaw failed to process his application for a clerk position

in the Munit manager’s or counselor’s office.” (ECF No. 97, at 6.) However, Chapman has failed

to submit any admissible evidence to support his claim that he was purposefully discriminated

against based upon his status as a white male. As a baseline, Chapman has not submitted proof

that he actually applied for, or even attempted to apply for, any sort of clerk position at a time

Xjfa T/T*^ J ^

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when that position was open and available. He has not submitted a job posting or any other

evidence foindicate tnat the position he desired was not already filled during the relevant time

7jA'*7 CVOot-feZ/tJ £[$/< <^L

periods. Further, he has not submitted any evidence to establish'what the qualifications for the

cy position were, much less established that his personal qualifications (which he has recited multiple

J~ times) were indeed compatible with those specific requirements. Nor has he identified a similarly

6 situated comparator whom he maintains was treated differently in applying for the unit manager

T?ity //

y a or~c

y and counselor’s office clerk positions that he alleges Defendant Shaw prevented him from

obtaining’

ie Court were to ignore these basic issues, Chapman has offered nothing, aside

i& from his own speculation and si^je^tiye beliefs, tomdicate that any decisiop meu^by Defendant

fe Shaw was motivated^race in any way^ shape, or form, much le^s tWsfre'hi-bofed any animosity

stf

yy~-

La*.

<£§

(L>1ty-

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/&. towaras him because he was white. Chapman’s allegations concerning Shaw are speculative and

conclusory and cannot survive summary judgment. See Erwin v. United States, 591 F.3d 313,

19-20 (4th Cir. 2010) (discussing that conclusory allegations and bare denials are insufficient to

support the nonmoving party’s case).

/^T

Accordingly, Claim One will be DISMISSED as to Defendant Shaw.

/~/C

--------- -----------------------------

fa A%l./^~e

J>/<.

-------------

Chapman alleges generally in unsworn pleadings that a black inmate, whom he maintains

was less qualified than him, was given the library clerk position. (See ECF No. 27, at 7.) But he

has failed to allege, much less prove, the basic details of this person’s putative hiring, including

when it occurred. He has further failed to submit proof that he applied for the position at a time

and in a manner such that he would have directly competed against this person for the position.

Despite the obvious deficiencies in Chapman’s pleading of these facts, the Court need not address

these failures because Chapman has failed to allege, much less prove, facts indicating that

Defendant Shaw had anything to do with the libraiy clerk hiring decision. Rather, Chapman

alleges that Defendant Smith made that decision. (Id.) Chapman’s claims against Defendant Shaw

involve Chapman’s inability to secure a clerk position in the unit manager’s office and the

counselor’s office, not the library. Co

Claim Two

In Claim Two, Chapman alleges that Defendants Smith, Moore, and Shaw have “a black

authors and Spanish language section with a plaque,” in the “regular library,” but “there are NO

plaques for “V other race ” (ECF No. 97, at 6.) Due to Chapman’s failure to serve Defendant

Smith, the Court will address this claim only insofar as it involves Defendants Moore and Shaw.

For purposes of summary judgment, the following facts are established. The “library

f includes African American, Native American, Spanish-speaking and Westem/European fiction

311(1 non_fiction books.” /(pinn<-y Decl. % 6.) “The Library is organized with a specific section

f containing the African American and Spanish-speaking collections.” {Id.) “The overwhelming

U maJ°rity of the library collection is comprised of American and European publications

// predominantly authored by Caucasian writers.” (Id.)

Chapman argues that if LCC is going to have a section for “black authors” and a “Spanish

langua2e” section, marked by a plaque, there must be a similar “plaque for all other races,” or there

shouId be no Platlues at

(ECF No. 97, at 10.) Chapman maintains that “[tjhere is nothing

t S" sPecial ab<>ut black authors.” (Id. at 21.) Chapman further sees no value in having a Spanish

/^ language section, because “[tjhis is the United States of America,” and the “official language is

l 7 English, and he seems to assert that Spanish-speaking inmates should simnlv “Assimilate ” (jd.

at 22.) Chapman maintains that LCC is “setting out one race over another,” which he alleges is

t f “offawe, and humiliating mid degrading to [him].” (ECF No. 27, at 9.) Defendants Moore and

^ a Shaw argue that the

that

J. I treatmentor?iscrmtinatoiyanimus^(ECFNo.

Although Chapman offers no specific authorities to support his position, the Court

fcfojury^) See, e.g., Moore v. Bryant, 853 F.3d245,249

STct

‘zlxi* t

(5th Cir. 2017). In Moore, an African-American attorney sued the Governor of Mississippi,

alleging that his “unavoidable] expos[ure] to the state flag,” which, in part, “depicted] the

Confederate battle flag,” stigmatized him, made him “feel like a second-class citizen,” and caused

him “physical and emotional injuries.” Id. at 248-49.

In resolving the case, the Fifth Circuit determined that in order to plead astigmatic injury

a “[pjlaintiff must plead that he was personally subjected to discriminatory treatment.” Id. at 249

(citations omitted). The court held that under the Equal Protection Clause, “exposure to a

discriminatory message, without a corresponding denial of equal treatment is insufficient to plead

at 250 (citations omitted). This is because, “the gravamen of an equal protection

'T&rs &

/<?

claim is differentialgovernmental treatment, not differential governmental Messaging.” Id.

12.

In so holding, the court expressly rejected the plaintiffs attempt to infuse Establishment

ause10 jurisprudence, into a claim under the Equal Protection Clause because “the injuries

N^/^otected against under the Clauses are different.” Id. While the Establishment Clause “prohibits

Govemment

endorsing a religion, and ... directly regulates Government speech if that

/^)eech endorses religion,” “[t]he same is not true under the Equal Protection Clause.” Id. In the

fjefrd, the court held that the plaintiff lacked standing to bring his claim that the “flag’s message”

^V/4'

threatening, and offensive,” and affirmed the district court’s dismissal of it because

Plaintiff had failed to plead a personal injury. Id. at 249.

$<? )

There are many parallels between Chapman’s allegations and the claims asserted in Moore.

/>’/ fChapman claims that the plaques designating the Spanish-language and “black authors” sections

to <<

U6 Ik/***«*

Congress shall make no law respecting an establishment of religion, or prohibiting the

free exercise thereof....” U.S. Const, amend. I.

aJ tvUrL, g/fft ^

of *e Prison library are “offensive, and humiliating and degrading to [him],” (ECF No. 27, at 9),

2. in much the same way that the plaintiff in Moore complained the Mississippi state flag was

2 (^^Siuh^tening, and offe^h^M^m, Moore, 853 F.3d at 249. As was the case with the

V PIaintiff in Moore, who failed to show that he had been treated differently than anyone else who

S' saw the flag, Chapman has likewise failed to show that he has been treated any differently than

$ anyone else who used the library. Chapman does not allege and has not proven that he was

7 prohibited from accessing any materials in the library, the “overwhelming majority” of which were

written

/->

*1.

CffyVs4~0/1<SS7~S (iC)

UtJT~

d' written by Caucasian authors. At most, he has shown that he was exposed to “differential

9 governmental messaging.” Id. at 250. However, v^h^^mOTe^^n*“e^)ome^)adiscriminatoiy

message

. is insufficient to plead an equal protection case.” Id. (citation omitted).

Accordingly, Claim Two will be DISMISSED as to Defendants Moore and Shaw.11

In Claim Three, Chapman alleges that Defendants Smith, Moore, and Shaw “included

Claim Three

/ V Martin Luther King Jr. [Day] on the law library/library calendar... [but] did not include Robert

//"E. Lee [Day] or Thomas “Stonewall” Jackson [Day].” (ECF No. 97, at 6-7.) Again, due to

/£ Chapman s failure to serve Defendant Smith, the Court will address this claim only insofar as it

/ 7 involves Defendants Moore and Shaw.

11 The United States District Court for the District of Columbia recently applied Moore in

a similar fashion to dismiss an Equal Protection Clause challenge to a decision by the Mayor of

the Dutrict of Columbia to paint a “BLACK LIVES MATTER” on the street “just outside the

White House.” Penkoski v. Bowser, No. 20-cv-01519 (TNM), 2020 WL 4923620, at *1, 5

(D.D.C Aug. 21,2020). There, a group of “non-black Christians,” challenged the “mural” because

they perceive[d] it as a sign that they [were] not welcome in the District.” Id. at * 1. Because the

plaintiffs did not show that the Mayor had “subjected them to discriminatory treatment because of

then-race, the court held thatany exposure they may have had to a “discriminatoiy message” was

insufficient to establish standing, and their claim was dismissed. Id. at *5.

For purposes of summary judgment, the following facts are established. LCC is operated

by Geo, a Florida corporation, which operates correctional facilities around the county. (Finney

Decl. H 7.) LCC observes numerous national holidays and is generally closed on those days. (Id.)

Martin Luther King Day is one of the holidays observed. (Id.) Lee-Jackson Day, a state holiday

previously observed in the Commonwealth of Virginia, is not one of the holidays observed by

LCC.12 (Id.)

Chapman’s primary grievance seems to be that even though the library is closed on both

Martin Luther King Day and Lee-Jackson Day, the Defendants have failed to write Lee-Jackson

Day on the library calendar as the reason for the second closure. (ECF No. 27, at 11-12.) Chapman

argues, without citing any authority in support that if Geo is to do business in Virginia, then it was

required to recognize Lee-Jackson Day. (Id. at 12.) Chapman further argues that LCC’s failure to

include Lee-Jackson Day on the calendar is “offensive, humiliating and degrading” to him, as a

“native bom Virginian.” (Id. at 11-12,) Chapman points out that Martin Luther King was not

from Virginia, and he claims that King “caused riots.” (ECF No. 105, at 9.)

Defendant Shaw argues that the undisputed facts show that they have “not subjected

[Chapman] to disparate treatment or discriminatory animus.” (ECF No. 80, at 10.) As an initial

matter, the record does not indicate that Defendants Moore and Shaw had anything to do with

deciding when the library was closed or what holidays would be^bserved. Rather, it appears that

someone elseat^Sm^fuwe t^respoi/sible fo&ede^smns.

Chapman did not expressly

name Geo in Claim Three. However, even if he had, Claim Three would still fail for the same

reasons that Claim Two failed.

12 Since Chapman filed his Particularized Complaint, Virginia has eliminated LeeJackson Day as a holiday. See 2020 Va. Acts ch. 418; Va. Code § 2.2-3300

‘

A, A

S-

Chapman is again claiming ^stigmatic injur^because a holiday that he does not prefer is

bein8 celebrated, and a holiday that he does prefer is being overlooked. The decision of which

holidays to include or, conversely, exclude from a calendar can be construed as a message, much

the same as a flag, a plaque, or a mural: it can speak to the relative value the creator of the calendar

Places on the holidays it chooses to commemorate and those it chooses not to commemorate. At

(

its base> ChaPman’s argument is that LCC has engaged in “differential governmental messaging”

7 concerning the relative value it places on Martin Luther King Day and Lee-Jackson Day. As

discussed above, “differential governmental messaging,” without “differential governmental

€p treatment,” is not actionable under the Equal Protection Clause. Moore, 853 F.3d at 250. Here

/<? a8a“» Chapman has failed to demonstrate that he has suffered differential treatment from anyone

ff at LCC, much less that he was treated differently because of his race. Indeed, from the record

/£ before the Court, it appears that everyone at LCC was presented with the same calendar which

ft observed the same holidays, even if the holidays observed were not the holidays Chapman would

/ if have chosen.

Accordingly, Claim Three will be DISMISSED as to Defendants Moore and Shaw.

In Claim Five, Chapman alleges that Defendants Smith, Moore, and Shaw “had a black

Claim Five

/(p history program scheduled ... the only race . . . given special treatment.” (ECF No. 97, at 7.)

Here

due t0 Chapman’s failure to serve Defendant Smith, the Court will address this claim

2d on]y insofar as it involves Defendants Moore and Shaw.

AD/li/S

For purposes of summary judgment, it appears that the Defendants concede that the library

21 at LCC does celebrate Black History Month. (ECF No. 80, at 2, 10.) Defendants point out that

2-3 Black History Month was

recognized on a national level by Congress in 1986. {Id. at 10.) As

such, they argue that its celebration is a longstanding national tradition, and therefore, Chapman

2. cannot show that theingbservance of Black History Month results from “purposeful or intentional

discrimination mtended to demean Chapman."’ (Id.) Defendants argue that the undisputed facts

show that they have “not subjected [Chapman] to disparate treatment or discriminatory animus.”

jrm

Chapman responds that “[t]here is nothing special about black history that separates it from

y the history of any other race.” (ECF No. 97, at 10.) He goes on to argue that “[j]ust because the

<P US Congress designated [Black History Month] doesn’t make it right.”

clear ^ he is uPset because

(Id.) Chapman makes

was not a scheduled observation for “Caucasian [history],

Native American [history], North African [history], or any other race in the world.”

ff (ECF No. 105, at 9.) Chapman claims that he “cannot relate to black history,” and laments the

/ ^ absence of some other program “to which Chapman can relate.”

}

(W. at 10.) Chapman has again

Mled to cite any pertinent autho4^^?po«^en

Here again, Chapman’s claim sounds not in termsTf a personal injmysuffereddue to

mrt^0iy tr'?atment, hut in terms of a perceived jstigmSic inimffaused bygovenunemd^

/£

messaging that does not

gn wi

is viewpoint. See generally Moore, 853 F.3d 245. Chapman

^KidfSa'g^M c£leia(te." As with its selection of

!•(

y oteervejp’a decision to observe BlaclUjistory Month and not to institute a.

values^JM^^owevef^aMed'&^^S^re to “differential governmental

%$-

messaging,

iahfovemmental treatment,” is not actionable under the Equal

23 Protection Clause. Id. at 250. It appears that all the inmates at LCC

were exposed to the same

message abouLJBJackiJistoiy-M^flth4hat-Chapman-wasrafld-GhapmaaJ)as_faiIed to demonstrate

that he was denied access to any services or materials that-were-flyailable-to-rrther inmatpg, 0r that

be was otherwise subject to any treatment that was different than a similarly situated inmate due

V to LCC’s decision to observe Black History Month.

AJ'oT'/

Accordingly, Claim Five ■will be DISMISSED as to Defendants Moore and Shaw.

Claim Six

In Claim Six, Chapman alleges that Defendants Smith, Shaw, Walker, and Geo “designed

recreation for blacks only.” (ECF No. 97, at 7.) In particular, Chapman alleges that the Defendants

closed a ballfield where Chapman and other white inmates liked to play softball. (ECF No. 27, at

iO 16“17-) Because Chapman has failed to serve Defendant Smith, the Court will address this claim

i t as it relates to Defendants Shaw, Walker, and Geo.

For purposes of summary judgment, the following facts are established. “At least four

** years a8°> the decision was made to close the baseball fields.” (Parker Decl. f 6.) These

/y recreational spaces added a large perimeter area that was difficult to monitor. (Id.) Consequently,

“the ballfields created opportunities for the infiltration of contraband — like cell phones, drugs,

t£ md other prohibited itemsX fid.) M^d^wo^d'^^ontrfela ov&faJfenMsP (1(f)

/? LCC

respon^o^S^^^ a

&to be ^effective.’ (Id.) LCC, with the consentonh^^Oc/d^ide?toH& toe'tfallfields

i^^^IdfvcSdML \ys^a/e^n^rely^ue to*securiy^oncems md^ln^ay

(<f »n

otivated by the race ofth^offenS^f ^lon^'havelosedtiMit sp£c6’ fid. \remain,

gym, and a walking nack at LCC.

2X (Id- H 9*) “Access to the recreation yards is granted by housing unit.” (Id. f 10.) “The housing

fiyJfeltZK,

units rotate between the two recreation yards on a schedule.” {Id.) ‘‘Race is not a criterion in

Siting access to the recreation yards,” or in an inmate’s housing assignment. {Id.)

De^Sts^aw

closure of theffeiftfield andt^alU^e^idisputeg&ts show^^hq;Ta5e ^'subjected [Chapman]

todisparatetr«,mientortenmiMtojammus^CFNo. 80,at2,10-11.) &apnianresponds

^ pcsttitigt Where on the recreaddrTyards ... can Chapman and^hde men participate in

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Ufa.

y softball?” (ECF No. 97, at 19.) Chapman answers his own question: “No Where.” {Id.) Chapman

!p argues that the “recreation yard is adequate if you are Black, but NOT for Chapman, or if you are

f White.” (ECF No. 27, at 18.) Chapman further questions the wisdom and efficacy of the decision

iO to close the ballfield, claiming that it “did nothing to stem the tide of drugs and cell phones coming

// into the facility,” and ultimately calling the security issue raised by Defendants “fake.” (ECF No.

97, at 19).

Chapman’s claim fails at this in several ways. First, he has failed to show that he was

itf treated differently than anyone else who used the ballfield prior to its closure.

Second, he has not

// shown that the decision to close the ballfield resulted from discriminatory intent. To the contraiy,

the record makes clear that race was not a consideration in the decision to close the ballfield

, nor

is it a consideration in granting access to the recrea^pn area§.

Ay Afa rAllruiu^ ftytck

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Instead, the ballfieTd represented a “large perimeter” which ^“difficult to monitor.”

ff Contraband had been throw-over toe fence and made its way into toe facility. LCC took toe less

„ drastic

^ /fa^//

step of putting up a “nuisance fence,” but this was “ineffective.” Contraband

was still

2 , coming into the facilijy throughjhe ballfield. Chapmanjias offered no competent evidence to

us*?

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and that the true motive for the closure was to discriminate against him and other white men,

Chapman has offered nothing more than rank speculation. Because Chapman has failed to rebut

the Defendants’ evidence with “specific, non-conclusory factual [evidence] that establishes]

improper motive,” this claim will not survive summary judgment. Trulock, 275 F.3d at 405

Accordingly, Claim Six will be DISMISSED as to Defendants Shaw, Walker, and Geo.13

Claim Seven

In Claim Seven, Chapman alleges that Defendants Shaw, Robinson, and Geo “have a

contract to air TVONE, an ALL Bjack TV channel,... in... [the] dayroom... TVONE’s language

is racist and carries sex offenders... there is NO ALL WHITE TV channel.” (ECF No. 97, at 7.)

Chapman maintains that the programing on TvONE, which includes “The George Jefferson Show”

and “The Bill Cosby Show” is offensive to him. (ECF No. 27, at 19.) He describes the language

used by “George Jefferson,” such as “Honkey,” and “Cracker,” as “racist with ethnic

connotations,” and maintains that it is “humiliating and degrading” to him. (Id.) He further alleges

that Bill Cosby is a sex offender, and his mere presence on the TV screen is offensive. (Id.)

For purposes of summary judgment, the following facts are established. “During their free

time, inmates

enj^acce^o a day room area within their assigned housing pod£JParkej

fiecl. yi\J There is a television in the day room. (Id.) Inmates may also have a television in

their personal cell. (Id.) LCC has a contract with a company called Correctional Cable TV. (Id.)

The service provided includes several channels. (Id.) TvONE is a channel that is included in the

. Alternatively, had Chapman shown some sort of legally cognizable disparate treatment

his claim would have nevertheless failed, as the decision to close the ballfield was “reasonably

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basic cable package. {Id.) LCC “does not have a contract directly with TvONE.” (Id.) The

television in the dayroom is “controlled by inmates using a remote control.” (Id.)

Defendants Shaw, Robinson, and Geo argue that the undisputed facts show that they have

not subjected Chapman to disparate treatment or discriminatory animus. (ECF No. 80, at 10.)

They further argue that the “inmates must collectively choose the programing in the day room

area, and those who are dissatisfied may watch television in their cell.” (Id. at 11.) Chapman

responds by claiming that the “Defendants are promoting a Sex Offender and [a] Racist.” (ECF

No. 97, at 21 (emphasis omitted).) Chapman further suggests that “[mjaybe Chapman does not

have money to buy a TV or wants to be in the POD ‘Common Area’ for all men,” but he never

states whether either condition is indeed true. (Id. at 13). And he never suggests an “all white”

alternative TV channel, which he seems to believe should be offered in place of or as a supplement

to TvONE.

C/tyPs-i

As an initial matter, Chapman has failed to point to a similarly situated inmate who has

£/a>c/u

been treated differently than he has. Moreover, nothing in the record indicates that Defendants

Shaw, Robinson, or Geo did anything tco cause Chapman to be treated any differently than any

al/ /s/tpcfi

other inmate. To the contrary , it appears that all inmates have access to the same TV in the

dayroom, the same slate of programming, which includes more than just TvONE, and the same

access to cable television in their cells. Chapman’s suggestion that “maybe” he “does not have

money to buy a TV” does not impact the equal protection analysis. All that matters is whether

Chapman was afforded the same opportunities that the other inmates were afforded, and the record

shows that he was. Sec Morrison, 239 F .3d at 654/hoJding that a plaintiff must demonstrate “that

he has been treated differently from others with whom he is similarly situated”).

Because Chapman has not established disparate treatment, the Court need not analyze the

second prong of the Morrison test. See 239 F.3d at 654. However, were the Court to reach this

issue, Chapman’s claim would nevertheless fail because, again, he has utterly failed to provide

“specific, non-conclusoiy factual [evidence] that establishes] improper motive.” Trulock, 275

F.3d at 405. Even if the Court were to liberally construe Chapman’s claim as alleging a stigmatic

injury based upon some perceived “differential governmental messaging,” that theory would

likewise fail because of the lack of “differential governmental treatment.” See Moore, 853 F.3d at

250.

Thus, Claim Seven will be DISMISSED as to Defendants Shaw, Robinson, and Geo.14

9 H-

Claim Eight

In Claim Eight, Chapman alleges that Defendants Jones, Woodson, and Cosby “DENIED

Chapman twenty-one (21) times, a tracking number on regular grievances for ALL Black officers

and staff... giving Chapman a tracking number for a white officer only.” (ECF No. 97, at 7.) As

noted above, Woodson and Cosby have previously been dismissed from this action. As such, the

Court will consider Claim Eight as it relates to Defendant Jones.

For purposes of summary judgment, the following facts are established. Defendant Jones

is the “acting Institutional Grievance Coordinator” at LCC. (Jones Decl. f 1.) VDOC “Operating

Procedure 866.1 (“OP 866.1”) sets forth the institutional grievance procedures in place” at LCC.

{Id. H 6.) The criteria for acceptance of a grievance is set forth in OP 866.1 and on the back of the

.a’

While not binding, Banks v. Hiland, No. 5:12-CVP197-R, 2013 WL 1679362, at *8

(W.D. Ky. April 27, 2013), is informative as to Chapman’s Claims Three and Seven. In Banks,

the plaintiff complained that, among other things, the Kentucky State Prison’s failure to observe

Martin Luther King Day and failure to provide Black Entertainment Television (“B.E.T.”) violated

\ h*s right8* including his right to Equal Protection. Id. In rejecting his claim, the court held that

\ watching B.E.T. was not a necessity, that authorities had no duty to purchase television channels

such as B.E.T., and that Banks had failed to show racial discrimination. Id.

J~hu U yl/A k/4^

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grievance form. {Id. ^ 7.) “The offender’s race is not a criterion under OP 866.1.” {Id.

16.)

“If the grievance meets the criteria for acceptance, it is logged in and a receipt is issued to die

inmate.” {Id. U 7.) “If a grievance does not meet the criteria for acceptance, the grievance is

returned to the offender with an explanation of the reason for denial of intake.” {Id. ^ 18.) An

inmate may appeal an intake decision. {Id. fflf 7, 18.) From January 1, 2016, to December 31,

2019, “Chapman successfully filed two hundred twenty-one (221) regular grievances and informal

complaints.” {Id. f 8.) Cnapman filed grievances related to “access to Health services, pharmacy

services, [and] medical records,” as well as issues related to the library and other “allegations in

[this] lawsuit.” {Id. fflf 9-15.) During that time period, Defendant Jones personally “accepted

intake of forty (40) Regular Grievances filed by Chapman. {Id. If 19.) fa *-/y~eee&s

Defendant Jones argues that the^undispute^l facts establish that she has not subjected

Chapman to disparate treatment or discriminatory animus. (ECF No. 80, at 10.) Jones further

argues that “Chapman is attributing discriminatory animus [to her] based on nothing more than

speculation.” {Id. at 12.) Chapman responds by saying that “[a]ll of Jones’s statements are

unconstitutional.” (ECF No. 97, at 26.) He also summarizes several of the rejected grievances

that Jones had returned to him. {Id. at 25.) In the instances Chapman cites, the reason for rejection

was “DOES NOT AFFECT YOU PERSONALLY.” {Id.) Chapman argues that his rejected

grievances were proper and that the subject matter of his complaints did affect him personally.

{Id.) Chapman freely admits that he has “no constitutional right to participate in a grievance

proceeding,” {id. at 23), which is an accurate statement of the law, see Booker v. S.C. Dep’t of

Corr., 855 F.3d 533, 541 (4th Cir. 2017) (observing that “inmates have no constitutional

entitlement or due process interest in access to a grievance procedure”).

Pifc/fr

The record reflects that Defendant Jones conducted the initial intake review of grievances

at LCC. Although Chapman is quick to attribute racial animus to nearly every action by prison

officials, he fails to direct the Court to statements in the intake decisions of his grievances that

/ rt?TU &

—

reflect racial ammus. Rather, Defendant Jones regularly refused to assign a tracking number

because she concluded that Chapman’s grievances failed to pass the intake criteria because of,

inter alia, their trivial nature. Chapman does not direct the Court to a similarly situated inmate

PAt

whofilea similarly insubstantial or noncomplying grievances that were processed and received a

/ 7~P/PAt>z<s

tracking number. Indeed, Chapman does not identify a comparator inmate at all, whether similarly

situated or not, insofar as Claim Eight is concerned.

Given Chapman’s failure to identify a similarly situated comparatounmate,.he-has

;am

failed to show that he was subject to disparate treatment. See Morrison, 239 F.3d at 654 (holding

that a plaintiff must demonstrate “that he has been treated differently from others with whom he

is similarly situated”). Because Chapman has not established disparate treatment, the Court need

not analyze the second prong of the Morrison test. Id. (holding that if disparate treatment is

established, the plaintiff must also prove that it was motivated by purposeful discriminatory intent).

However, were the Court to reach this issue, Chapman’s claim would nevertheless fail because,

again, he has not provided “specific, non-conclusory factual [evidence] that establishes] improper

motive.” Trulock, 275 F.3d at 405.

Accordingly, Claim Eight will be DISMISSED as to Defendant Jones.15

15 In their Motion for Summary Judgment, the Defendants argue that several, if not all, of

Chapman’s claims should be dismissed because he has failed to exhaust his administrative

remedies, as required under the PLRA. (ECF No. 80, at 12-13.) As close as the Court can tell,

the Defendants aver that at least Claims One, Two, Three, Five, Six, and Seven should be

dismissed on these grounds. (Id.) Chapman responds that in each instance he had taken his

administrative remedies either to exhaustion or to a point of futility. (ECF No. 97, at 26-33.)

IV. Conclusion

Accordingly, the Motions for Summary Judgment (ECF Nos. 79, 103) concerning

Chapman’s Equal Protection Clause Claims under the both the Virginia and United States

Constitutions will be GRANTED as follows:

1.)

Claim One as to Defendant Shaw;

2.)

Claim Two as to Defendants Moore and Shaw;

3.)

Claim Three as to Defendants Moore and Shaw;

4.)

Claim Five as to Defendants Moore and Shaw; ^

5.)

Claim Six as to Defendants Shaw, Walker, and Geo;

6.)

Claim Seven as to Defendants Shaw, Robinson, and Geo; and,

7.)

Claim Eight as to Defendant Jones.

An appropriate Order will accompany this Memorandum Opinion.

Date: 2.f

Richmond, Virginia

LfiU'

Isl

Joint A. Gibney, Jr. / ) j

United States District Judge

The PLRA “mandates that an inmate exhaust ‘such administrative remedies as are

available’ before bringing suit to challenge prison conditions.” Ross v. Blake, 136 S. Ct. 1850,

1854-55 (2016). In the ordinary course, the first step the Court would undertake in a case like this

would be to determine whether Chapman had indeed complied with the administrative

requirements placed upon him. However, while both parties provided volumes of grievancerelated materials, neither provided adequate record citations to conclusively establish their

position. More importantly, given Chapman’s allegations of racial animus in the grievance

process, as indicated in Claim Eight, it is unclear whether there were administrative remedies

available for him to exhaust. See id. at 1860. As such, the Court was required to undertake a

“thorough review” of the entire record to ferret out tile answer. Id. at 1862. During the course of

conducting that review, it became clear that Chapman’s claims failed for a variety of reasons, as

discussed above, in addition to potentially being barred for failing to exhaust administrative

remedies. Given the inescapable conclusion that Chapman’s claims obviously lack merit, the

Court need not resolve this procedural issue.

• >

Case 3;io-cv~CGs07~jAG"RCY Documerii 100 r-iied CG/24/20 Page i of 1 Page!D# 1830

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

LOUIS ROY CHAPMAN.,

Plaintiff,

Civil Action No. 3:18cv597

PHYLLIS SMITH, et al,

Defendants.

ORDER

In accordance with the accompanying Memorandum Opinion, it is hereby ORDERED that

the Motions for Summary Judgment (ECFNos. 79, 103) concerning Chapman’s Equal Protection

Clause Claims under the both the Virginia and United States Constitutions will be GRANTED as

follows:

1.)

Claim One as to Defendant Shaw;

2.)

Claim Two as to Defendants Moore and Shaw;

3.)

Claim Three as to Defendants Moore and Shaw;

4.)

Claim Five as to Defendants Moore and Shaw;

5.)

Claim Six as to Defendants Shaw, Walker, and Geo;

6.)

Claim Seven as to Defendants Shaw, Robinson, and Geo; and,

7.)

Claim Eight as to Defendant Jones.

The Clerk is DIRECTED to send a copy of the Memorandum Opinion and Order

to Chapman and counsel of record.

2H;

Date:

Richmond, Virginia

Isl

John A. G ibney, Jr. / / /

United States District Judge

Gase 3:18-cv-00597-JAG-RCY Document 161 Filed 03/03/21 Page 1 of 18 PagelD# 1922

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

LOUIS ROY CHAPMAN,

Plaintiff,

Civil Action No. 3:18CV597

PHYLLIS SMITH, et al.,

Defendants.

MEMORANDUM OPINION

Louis Roy Chapman, a Virginia inmate proceeding pro se, filed this 42 U.S.C. § 1983

action1 alleging various violations of his constitutional rights because of what he perceives to be

bias against him because he is a white male. The action is proceeding on Chapman’s Second

Particularized Complaint. (ECF No. 27.) The procedural history of this case has been somewhat

J'"’ cumbersome, due in no small part to the inartful nature of Chapman’s pleadings.2 Nevertheless,

at this juncture, the bulk of Chapman’s claims have already been resolved. (See ECF Nos. 152—

7 55.) Presently, only a handful of claims remain, claims which were not previously addressed by

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

at law....

42 U.S.C. § 1983.

2 In his hand-written, forty-two-page Particularized Complaint, Chapman failed to

delineate clearly between his various claims. (See ECF No. 27, at 1-42.) Chapman’s clearest

articulation of his individual claims appeared in a response that he filed to a motion for summary

judgment that has since been resolved. (See ECF No. 97, at 6-8.) Having reviewed both

documents, the Court will refer to this latter iteration of Chapman’s claims to frame and

contextualize the issues before it.

Case 3:18-cv-00597-JAG-RCY Document 161 Filed 03/03/21 Page 2 of 18 PagelD# 1923

the parties or involve two unserved defendants, Phyllis Smith and D. Kreitz, Under the Prison

Litigation Reform Act (“PLRA”), the Court has an ongoing duty to review and evaluate

Chapman’s claims. The matter is presently before the Court for evaluation of Chapman’s

remaining claims pursuant to 42 U.S.C. § 1997e(c)(l) and for consideration of a MOTION TO

AMEND OR ALTER THE JUDGMENT (ECF No. 156) filed by Chapman, which the Court

construes as a motion pursuant to Federal Rule of Civil Procedure 54(b). For the reasons set forth

below, Chapman’s remaining claims will be DISMISSED either for failure to state a claim or

because they are legally frivolous (or both), Chapman’s Rule 54(b) Motion will be DENIED, and

all other outstanding motions and requests will be DENIED AS MOOT. The action will be

DISMISSED.

I. Obligatory Judicial Review

Pursuant to the 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.” 42 U.S.C. § 1997e(c)(l); accord28 U.S.C. § 1915(e)(2)(B)(i-ii); 28 U.S.C. § 1915A(b).

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 ofN.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 plaintiffs well-pleaded allegations

Case 3:18-cv-00597-JAG-RCY Document 161 Filed 03/03/21 Page 3 of 18 PagelD# 1924

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.’” BellAtl. 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.” Id. (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,” id. “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.” Iqbal, 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. El 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); Iodice v. United

States, 289 F.3d 270,281 (4th Cir. 2002)).

“Where the context . . . makes clear a litigant’s essential grievance, the complainant’s

additional invocation of general legal principles need not detour the district court from resolving

that which the litigant himself has shown to be his real concern.” Beaudett v. City of Hampton,

Case 3:18-cv-00597-jAG-RCY Document 161 Filed 03/03/21 Page 4 of 18 PagelD# 1925

775 F.2d 1274, 1278 (4th Cir. 1985). 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 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).

II. Summary of Remaining Claims and Allegations

Chapman is a white male confined in the Lawrenceville Correctional Center (“LCC”).

(ECF No. 27, at 2, 23.)3 LCC is operated by Global Experts in Outsourcing (“Geo”), a private,

for-profit corporation. (Id. at 2.) While confined at LCC, Chapman contends that he has been the

victim of “Racial Discrimination.” (Id. at 3.) Chapman’s remaining claims are as follows:4

Claim One:

Defendants Smith, Kreitz, and Shaw will not process Chapman’s job

application for various clerk positions because Chapman is white, and they

have only hired “Black and Hispanic” clerks. (ECF No. 97, at 6.)

(a) These actions violated Chapman’s rights under the Eighth Amendment.5

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

corrects that spelling and punctuation in the quotations from Chapman’s submissions. The Court

corrects some, but not all, of the capitalization in the quotations from Chapman’s submissions.

The Court omits some of the excessive emphasis in the quotations from Chapman’s submissions.

4 In prior rulings, the Court liberally construed each of the enumerated claims to state both

an Eighth Amendment claim and an Equal Protection Clause claim under the United States

Constitution, as well as a state equal protection claim under the Virginia Constitution. (See ECF

No. 154, at 4 n.7, 7 n.8.) To date, neither the Court nor the parties have substantively addressed

the Eighth Amendment issues raised by the above-referenced claims. Consequently, the Court

must now address the Eighth Amendment claims raised by Chapman against all remaining

Defendants. However, the Court previously granted summary judgment to Defendants Moore,

Robinson, Shaw, Walker, and Geo on the Equal Protection aspects of Chapman’s claims.

Therefore, the Court need only address Chapman’s Equal Protection claims against Defendants

Smith and Kreitz, the two unserved defendants.

5«

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.” U.S. Const, amend. VIII.

Case 3:18-cv-00597-JAG-RCY Document 161 Filed 03/03/21 Page 5 of 18 PagelD# 1926

(b) These actions by Defendants Smith and Kreitz violated Chapman’s

rights to equal protection under the both United States Constitution6 and the

Virginia Constitution.7

Claim Two:

Defendants Smith, Moore, and Shaw have “a black authors and Spanish

language section with a plaque,” in the “regular library,” but “there are NO

plaques for any other race in the world.” (Id.)

(a) These actions violated Chapman’s rights under the Eighth Amendment.

(b) These actions by Defendant Smith violated Chapman’s rights to equal

protection under both the United States Constitution and the Virginia

Constitution.

Claim Three: Defendants Smith, Moore, and Shaw “included Martin Luther King Jr.

[Day] on the law library/library calendar... [but] did not include Robert E.

Lee [Day] or Thomas “Stonewall” Jackson [Day], but closed the law

libraiy/library both dates.” (Id. at 6-7.)

(a) These actions violated Chapman’s rights under the Eighth Amendment.

(b) These actions by Defendant Smith violated Chapman’s rights to equal

protection under both the United States Constitution and the Virginia

Constitution.

Claim Five.

Defendants Smith, Moore, and Shaw “had a black history program

scheduled... the only race ... given special treatment.” (Id.)

(a) These actions violated Chapman’s rights under the Eighth Amendment.

(b) These actions by Defendant Smith violated Chapman’s rights to equal

protection under both the United States Constitution and the Virginia

Constitution.

Claim Six:

Defendants Smith, Shaw, Walker, and Geo “designed [the] recreation [area]

for blacks only.” (Id.)

(a) These actions violated Chapman’s rights under the Eighth Amendment.

“No State shall... deny to any person within its jurisdiction the equal protection of the

laws.” U.S. Const, amend. XIV, § 1.

Chapman invokes Article I, Section 11 of the Virginia Constitution as a basis for his state

law racial discrimination claims. “The Virginia Constitution affords no greater protection to be

free from government discrimination than the equal protection clause in the Fourteenth

Amendment,” consequently, “the same analysis applies” to both Chapman’s state and federal

racial discrimination claims. Farley v. Clarke, No. 7:15CV352, 2016 WL 8540135, at *18 n.25

(W.D. Va. Dec. 27, 2016) (citing Lee v. York Cty. Sch. Div., 418 F. Supp. 2d 816, 835 (E.D. Va

2006); Archer v. Mayes, 194 S.E.2d 707, 711 (Va. 1973)), report and recommendation adopted,

No. 7.15CV352,2017 WL 1049579 (W.D. Va. Mar. 17, 2017). The Court addresses Chapman’s

state and federal racial discrimination claims concomitantly. Thus, any decision that the Court

renders as to one set of Chapman’s “equal protection” claims applies equally to the other, unless

otherwise specifically stated.

Case 3:18-cv-00597-JAG-RCY Document 161 Filed 03/03/21 Page 6 of 18 PagelD# 1927

(b) These actions by Defendant Smith violated Chapman’s rights to equal

protection under both the United States Constitution and the Virginia

Constitution.

Claim Seven: Defendants Shaw, Robinson, and Geo “have a contract to air TVONE, an

ALL Black TV channel,... in ... [the] dayroom ... TVONE’s language

is racist and carries sex offenders . . . there is NO ALL WHITE TV

channel.” (Id.) These actions violated Chapman’s rights under the Eighth

Amendment.8

III. Analysis

11 is both unnecessary and inappropriate to engage in an extended discussion of the lack of

! i merit of Chapman’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

/I °f frivolous or “insubstantial claims” (citing Neitzke v. Williams, 490 U.S. 319,324 (1989))).

Eighth Amendment Claims

To state an Eighth Amendment, claim, an inmate must allege facts showing “(1) that

/<£ objectively the deprivation of a basic human need was ‘sufficiently serious,’ and (2) that

subjectively the prison officials acted with a ‘sufficiently culpable state of mind.’” Johnson v.

Quinones, 145 F.3d 164,167 (4th Cir. 1998) (quoting Wilson v. Seiter, 501 U.S. 294,298 (1991)).

/f Under the objective prong, the inmate must allege facts to suggest that the deprivation complained

2# of was extreme and amounted to more than the “routine discomfort” that is “part of the penalty

£ ( *at criminal offenders pay for their offenses against society.” Strickler v. Waters, 989 F.2d 1375,

1380 n-3 (4th Cir. 1993) (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992)). “In order to

demonstrate such an extreme deprivation, a prisoner must allege ‘a serious or significant physical

Neither Defendant Smith nor Defendant Kreitz were named by Chapman in Claim Seven.

Thus, as far as that claim is concerned, the equal protection issues have been settled and all that

remains for the Court to consider are the Eighth Amendment issues raised by Chapman.

Case 3:18-cv-00597-JAG-RCY Document 161 Filed 03/03/21 Page 7 of 18 PagelD# 1928

or emotional injury resulting from the challenged conditions.’” De 'Lonta v. Angelone, 330 F.3d

z 630,634 (4th Cir. 2003) (quoting Stickler, 989 F.2d at 1381).

The subjective prong requires the plaintiff to allege facts that indicate a particular defendant

/ actually knew of and disregarded a substantial risk of serious harm to his person. See Farmer v.

S Brennan, 511 U.S. 825,837 (1994). “Deliberate indifference is a very high standard—a showing

( of mere negligence will not meet it.” Grayson v. Peed, 195 F.3d 692,695 (4th Cir. 1999) (citing

7 Estelle v. Gamble, 429 U.S. 97,105-06 (1976)).

f' [A] prison official cannot be found liable under the Eighth Amendment for denying

9 an inmate humane conditions of confinement unless the official knows of and

fa disregards an excessive risk to inmate health or safety; the official must both be

// aware of facts from which the inference could be drawn that a substantial risk of

/l, serious harm exists, and he must also draw the inference.

fZ Earmer, 511 U.S. at 837. Farmer teaches “that general knowledge of facts creating a substantial

/ Cy risk of harm is not enough. The prison official must also draw the inference between those general

yj—facts and the specific risk of harm confronting the inmate.” Quinones, 145 F.3d at 168 (citing

l& Farmer, 511 U.S. at 837); see Rich v. Bruce, 129 F.3d 336, 338 (4th Cir. 1997). Thus, to avoid

dismissal, the deliberate indifference standard requires a plaintiff to assert facts sufficient to form

fa" 00 iHferenc6 that “the official in question subjectively recognized a substantial risk of harm” and

/<f “that the official in question subjectively recognized that his [or her] actions were ‘inappropriate

pj in light of that risk.’” Parrish ex rel. Lee v. Cleveland, 372 F.3d 294,303 (4th Cir. 2004) (quoting

{ Rich, 129 F.3d at 340 n.2).

Chapman fails to satisfy either the objective or subjective prongs for any of his Eighth

Amendment claims. Chapman fails to allege facts that plausibly suggest he sustained serious

7 ¥ physical or emotional injuiy from any of the challenged conditions. De ’Lonta, 330 F.3d at 634.

Pif

Furthermore, in no instance does Chapman allege facts that indicate any defendant perceived that

Case 3:18-cv-00597-JAC-RCY Document 161 Filed 03/03/21 Page 8 of 18 PagelD# 1929

his or her actions subjected Chapman to a substantial risk of serious harm. De ’Lonta v. Fulmore,

745 F. Supp. 2d 687, 691 (E.D. Va. 2010) (“Verbal abuse of inmates by prison officials, without

more, does not rise to the level of an Eighth Amendment violation.” (citing Moody v. Grove, No.

89-6650, 1989 WL 107004, at *1 (4th Cir. Sept. 19, 1989); Collins v. Cundy, 603 F.2d 825, 827

(10th Cir. 1979)).

Accordingly, the Eighth Amendment claims raised in Claims One (a), Two (a), Three (a),

Five (a), Six (a), and Seven will be DISMISSED as they fail to state a claim and are frivolous.

Equal Protection Claims

The Equal Protection Clause of the Fourteenth Amendment commands that similarly

iO situated persons be treated alike. See City ofCleburne v. Cleburne Living Ctr., 473 U.S. 432,439

// (1985) (citing Plyler v- Doe, 457 U.S. 202, 216 (1982)). To state an equal protection claim,

/* ChaPman must alle8e facts that plausibly suggest: (1) “that he has been treated differently from

others with whom he is similarly situated”; and, (2) that the differing treatment resulted from

/y intentional discrimination. Morrison v. Garraghty, 239 F.3d 648,654 (4th Cir. 2001). To succeed

//* on an equal protection claim, a plaintiff must set forth “specific, non-conclusory factual allegations

/ p that establishes] improper motive.” Trulock v. Freeh, 275 F.3d 391,405 (4th Cir. 2001) (quoting

Crawf°rd-El v- Litton, 523 U.S. 574, 598 (1998)). If a plaintiff satisfies the above, “the court

Proceeds t0 determine whether the disparity in treatment can be justified under the requisite level

/ f of scrutiny-” Morrison, 239 F.3d at 654 (citations omitted). “In a prison context,” disparate

7-0 treatment Passes muster so long as “the disparate treatment is ‘reasonably related to [any]

legitimate penological interests.’” Feneyv. Wyche, 293 F.3d 726, 732 (4th Cir. 2002) (alteration

7% in origina0 (quoting Shaw v. Murphy, 532 U.S. 223,225 (2001)).

Case 3:18-cv-00597-JA'G-RCY Document 161 Filed 03/03/21 Page 9 of 18 PagelD# 1930

1. Claim One (b)

In Claim One (b), Chapman alleges that Defendants Smith and Kreitz would not process

his job application for a law clerk position because Chapman is white, and they only hire “Black

and Hispanic clerks. (ECFNo. 97, at 6.) However, Chapman does not allege that the position he

desired was actually open and available to new hires, much less that he applied for, or even

attempted to apply for, it at an appropriate time and in an appropriate manner. Further, Chapman

does not allege what the qualifications for the position were, much less that his own qualifications

(which he recites multiple times) were indeed compatible with the job requirements. Finally,

Chapman does not identify a similarly situated comparator who he maintains was treated

differently than Chapman in applying for the law clerk position.9

Even if the Court were to ignore these basic issues, Chapman has offered nothing, aside

from his own speculation and subjective beliefs, to indicate that any decision made by Defendants

Smith and Kreitz was motivated by race in any way, much less that they harbored any animosity

towards Chapman because he was white. Chapman’s allegations concerning Smith and Kreitz are

speculative and conclusory and fail to state a claim. Twombly, 550 U.S. at 555 (holding that a

plaintiff must allege facts sufficient “to raise a right to relief above the speculative level”).

Accordingly, Claim One (b) will be DISMISSED WITHOUT PREJUDICE.

2. Claim Two (b)

In Claim Two (b), Chapman alleges that Defendant Smith has “a black authors and Spanish

language section with a plaque,” in the “regular library,” but “there are NO plaques for any other

Chapman alleges generally that a black inmate, who he maintains was less qualified than

Chapman, was given the library clerk position. (See ECF No. 27, at 7.) However, Chapman fails

to allege even the most basic details of this person’s putative hiring, including when it occurred.

Nothing in Chapman’s pleadings indicates that he was actually in direct competition with this

person for the same position at the same time.

/f- c

Case 3:18-cv-00597-JAG-RCY Document 161 Filed 03/03/21 Page 10 of 18 PagelD# 1931

)

race.” (ECF No. 97, at 6.) Chapman avers that if LCC has a section for “black authors” and a

2 “Spanish language” section marked by a plaque, there must be a similar “plaque for all other races”

or there should be no plaques at all. (ECF No. 97, at 10.) Chapman maintains that “[tjhere is

nothing special about black authors.” (Id. at 21.) He states that “[t]his is the United States of

(T J^merica) the ‘official language is English,” and Spanish-speaking inmates should simply

Assimilate. (Id. at 22.) Chapman maintains that Defendant Smith is “setting out one race over

another,” (see id.), which he alleges is “offensive, and humiliating, and degrading to [him].” (ECF

, No. 27, at 9.)

The Court construes Chapman’s claim to be one of “stigmatic injury/’ See, e.g., Moore v.

/ 0 Bryant, 853 F.3d 245, 249 (5th Cir. 2017). In Moore, an African-American attorney sued the

Governor of Mississippi, alleging that his “unavoidable] expos[ure] to the state flag,” which, in

P3*’ “depicted] the Confederate battle flag,” stigmatized him, made him “feel like a second-class

/ y citizen,” and caused him “physical and emotional injuries.” Id. at 248-49.

In resolving the case, the Fifth Circuit determined that in order to plead a stigmatic injury,

a [p]laintiff must plead that he was personally subjected to discriminatory treatment.” Id. at 249

(citations omitted). The court held that under the Equal Protection Clause, “exposure to a

discriminatory message, without a corresponding denial of equal treatment, is insufficient to plead

m ^nJury- Id. at 250 (citations omitted). This is because “the gravamen of an equal protection

if c,aim is differential governmental treatment, not differential governmental messaging.” Id.

(citations omitted).

Case 3:18-cv-00597-JAG-RCY Document 161 Filed 03/03/21 Page 11 of 18 PagelD# 1932

In so holding, the court expressly rejected the plaintiffs attempt to infuse Establishment

Clause jurisprudence into a claim under the Equal Protection Clause because “the injuries

protected against under the Clauses are different.” Id. While the Establishment Clause “prohibits

V the Government from endorsing a religion, and ... directly regulates Government speech if that

S speech endorses religion,” “[t]he same is not true under the Equal Protection Clause.”

Id. In the

if en<*> the court held that the plaintiff lacked standing to bring his claim that the “flag’s message”

was “painful, threatening, and offensive,” and affirmed the district court’s dismissal of it because

S' the plaintiff had failed to plead a personal injury. Id. at 249.

There are many parallels between Chapman’s allegations and the claims asserted in Moore.

Chapman claims that the plaques designating the Spanish-language and "black authors” sections

// ofthe Prison library are “offensive, and humiliating, and degrading to [him],” (ECF No. 27, at 9),

/2. m much the same way that the plaintiff in Moore complained the Mississippi state flag was

/? “Painful, threatening, and offensive” to him, Moore, 853 F.3d at 249. As was the case with the

/ if plaintiff in Moore, who failed to show that he had been treated differently than anyone else who

if saw to® fla& Chapman has failed to show that he has been treated any differently than anyone else

/tf who used the library. Chapman does not allege that he was prohibited from accessing any

/ ? materials in the library. At most, he has shown that he was exposed to “differential governmental

i JS messaging.” Id. at 250. However, without more, even “exposure to a discriminatory message...

/f is insufficient to plead an equal protection case.” Id. (citation omitted).11

10 «

Congress shall make no law respecting an establishment of religion, or prohibiting the

free exercise thereof....” U.S. Const, amend. I.

The United States District Court for the District of Columbia recently applied Moore in

a similar fashion to dismiss an Equal Protection Clause challenge to a decision by the Mayor of

the District of Columbia to paint “BLACK LIVES MATTER” on the street “just outside the White

House.” Penkoski v. Bowser, No. 20cvl519,2020 WL 4923620, at *1, 5 (D.D.C. Aug. 21,2020).

There, a group of “non-black Christians,” challenged the “mural” because they “perceivefd] it as

Case 3:18-cv-00597-JAG-RCY Document 161 Filed 03/03/21 Page 12 of 18 PagelD# 1933

Accordingly, Claim Two (b) will be DISMISSED as it is legally frivolous and fails to state

a claim.

3. Claim Three (b)

In Claim Three (b), Chapman alleges that Defendant Smith “included Martin Luther King

Jr. [Day] on the law library/library calendar . . . [but] did not include Robert E. Lee [Day] or

Thomas Stonewall Jackson [Day].” (ECF No. 97, at 6-7.) Chapman’s primary grievance seems

to be that even though the library was closed on both Martin Luther King Day and Lee-Jackson

Day, the Defendants failed to write Lee-Jackson Day on the library calendar as the reason for the

second closure.12 (ECF No. 27, at 11-12.) Chapman alleges that if Geo is to do business in

Virginia, then it should be required to recognize Lee-Jackson Day. {Id. at 12.) Chapman further

argues that LCC s failure to include Lee-Jackson Day on the calendar is “offensive, humiliating

and degrading” to him, as a “native bom Virginian.” {Id. at 11-12.) Chapman notes that Martin

Luther King was not from Virginia, and he claims that King “caused riots.” (ECF No. 105, at 9.)

As an initial matter, it does not appear that Chapman specifically alleges that Defendant

Smith decided when the libraiy was to be closed or what specific holidays would be observed.

Rather, it appears that someone at Geo may have been responsible for those decisions. Chapman

did not expressly name Geo in Claim Three (b). But even if he had, Claim Three (b) would still

fail for the same reasons that Claim Two (b) failed.

[W!rf] I!0t welcome in ^ District.” Id. at *1. Because the plaintiffs did not show

that the Mayor had ‘subjected them to discriminatory treatment because of their race,” the court

held that any exposure they may have had to a “discriminatoiy message” was insufficient to

establish standing, and their claim was dismissed. Id. at *5.

,. n n

formally recognized Lee-Jackson Day as a state holiday. Since Chapman filed

his Particularized Complaint, Virginia has eliminated Lee-Jackson Day as a holiday. See 2020 Va

Acts ch. 418; Va. Code § 2.2-3300.

Case 3:18-cv-00597-JAG-RCY Document 161 Filed 03/03/21 Page 13 of 18 PagelD# 1934

Chapman is again claiming a stigmatic injury because a holiday that he does not prefer is

explicitly celebrated, and a (now former) holiday that he does prefer is overlooked. The decision

of which holidays to include or exclude from a calendar can be construed as a message, much the

same as a flag, a plaque, or a mural: it can speak to the relative value that the creator of the calendar

places on the holidays it chooses to commemorate and those it chooses not to commemorate. At

its base, Chapman’s argument is that LCC has engaged in “differential governmental messaging”

concerning the relative value it places on Martin Luther King Day and Lee-Jackson Day. As

discussed above, “differential governmental messaging,” without “differential governmental

treatment,” is not actionable under the Equal Protection Clause. Moore, 853 F.3d at 250. Here

again, Chapman has failed to allege that he experienced differential treatment from anyone at LCC,

much less that he was treated differently because of his race. Indeed, it appears that everyone at

LCC was presented with the same calendar which observed the same holidays, even if the holidays

observed were not the holidays Chapman would have chosen.

Accordingly, Claim Three (b) will be DISMISSED as it is legally frivolous and fails to

state a claim.

4. Claim Five (b)

In Claim Five (b), Chapman alleges that Defendant Smith “had a black history program

scheduled.. . the only race... given special treatment.” (ECF No. 97, at 7.) Chapman avers that

“Where is nothing special about black history that separates it from the history of any other race.”

(Id. at 10.) He goes on to state that “[j]ust because the US Congress designated [Black History

Month] doesn t make it right.” (Id.) Chapman makes clear that he is upset because there was not

a scheduled observation for “Caucasian [history], Native American [history], North African

[history], or any other race in the world.” (ECF No. 105, at 9.) Chapman claims that he “cannot

Case 3:i8-cv-00597-JAG-RCY * Document 161 Filed 03/03/21 Page 14 of 18 PagelD# 1935

relate to black history,” and laments the absence of some other program “to which Chapman can

relate.” {Id. at 10.)

Here again, Chapman’s claim sounds not in terms of a personal injury suffered due to

discriminatory treatment, but in terms of a perceived stigmatic injury caused by governmental

f messaging that does not align with his viewpoint. See generally Moore, 853 F.3d 245. Chapman

£ is upset because LCC has chosen to observe an event which Chapman “cannot relate to,” and has

y °Pted not t0 institute an equivalent event, “to which Chapman can relate.” As with its selection of

which holidays to observe, LCC s decision to observe Black History Month and not to institute a

similar observation for any other race can be construed as a message that speaks to LCC’s relative

values and priorities. But as stated above, exposure to “differential governmental messaging,”

without “differential governmental treatment,” is not actionable under the Equal Protection Clause.

Id. at 250. It appears that all the inmates at LCC were exposed to the same message about Black

History Month that Chapman was, and Chapman has failed to allege that he was denied access to

any services or materials that were available to other inmates or that he was otherwise subject to

any treatment that was different than a similarly situated inmate due to LCC’s decision to observe

Black History Month.

Accordingly, Claim Five (b) will be DISMISSED because it is legally frivolous and fails

to state a claim.

5. Claim Six (b)

In Claim Six (b), Chapman alleges that Defendant Smith “designed [the] recreation [area]

for blacks only;.” (ECF No. 97, at 7.) Specifically, Chapman challenges the closure of a ballfield

where Chapman and other white inmates liked to play softball. (ECF No. 27, at 16—17.) Chapman

avers that the reconstituted “recreation yard is adequate if you are Black, but NOT for Chapman,

Case 3:18-cv-00597-JAG-RCY ‘ Document 161 Filed 03/03/21 Page 15 of 18 PagelD# 1936

CtiQ

or if you are White.” (Id. at 18.) He acknowledges that the stated purpose for the closure was

institutional security, but he questions the wisdom and efficacy of the decision to close the

ballfieid, ultimately dismissing those concerns as “fake,” and claiming that it “did nothing to stem

the tide of drugs and cell phones coming into the facility.” (ECF No. 97, at 19).

Chapman’s claim fails for a number of reasons. Most notably, Chapman has not adequately

alleged that he was treated differently than anyone else who used the reconstituted recreation area.

When the field was closed, all inmates were apparently excluded from the closed portion,

f" regardless of race. Moreover, Chapman does not allege that there

«f

are any portions of the

reconstituted recreation area that he was categorically barred from going because of his race. As

{$ for Chapman’s claim that the security concerns were somehow “fake” and the true motive for the

closure was to discriminate against him and other white men, Chapman has offered nothing more

fl than rank speculation on that point. Twombly, 550 U.S. at 555 (holding that a plaintiff must allege

/if fects sufficient “to raise a right to relief above the speculative level”).

Accordingly, Claim Six (b) will be DISMISSED as it is legally frivolous and fails to state

a claim.

IV. Chapman’s Rule 54(b) Motion

The Court now considers Chapman’s submission entitled “MOTION TO AMEND OR

ALTER THE JUDGMENT.”

he is challenging in his motion. (See id.) However, in his supporting memorandum, Chapman

references Federal Rule of Civil Procedure 56, which governs motions for summary judgment.

(ECF No. 156.) Chapman does not expressly state which judgment

2 & (^ee ECF No. 157, at 2.) As such, the Court understands Chapman’s challenge to relate to the

'2- (

September 24,2020 Memorandum Opinion and Order granting summary judgment to some, but

2't not ^ defendants on some, but not all, of Chapman’s claims. (See ECF Nos. 154,155.)

Case 3:18-cv-00597-JAG-RCY' Document 161 Filed 03/03/21 Page 16 of 18 PagelD# 1937

If a motion seeks reconsideration of an order before the entry of final judgment, the motion

is governed by Rule 54(b). That rule provides:

[A]ny order or other decision, however designated, that adjudicates fewer than all

the claims or the rights and liabilities of fewer than all the parties does not end the

action as to any of the claims or parties and may be revised at any time before the

entry of a judgment adjudicating all the claims and all the parties’ rights and

liabilities.

Fed. R. Civ. P. 54(b).13

A district court retains the discretion to reconsider or modify a grant of a partially

dispositive motion at any time prior to the entry of final judgment. See Am. Canoe Ass ’« v. Murphy

Farms, Inc., 326 F.3d 505, 514-15 (4th Cir. 2003) (citing Fayetteville Investors v. Commercial

Builders, Inc., 936 F.2d 1462, 1469 (4th Cir. 1991); Fed. R. Civ. P. 54(b)). Nevertheless , a court

must exercise its discretion to consider such motions sparingly in order to avoid an unending

motions practice. See Potter v. Potter, 199 F.R.D. 550, 553 (D. Md. 2001). Under Rule 54(b), a

motion for reconsideration generally should be limited to instances including when

the Court has patently misunderstood a party, or has made a decision outside the

adversarial issues presented to the Court by the parties, or has made an error not of

reasoning but of apprehension .... [or] a controlling or significant change in the

law or facts since the submission of the issue to the Court [has occurred]. Such

problems rarely arise and the motion to reconsider should be equally rare.

Above the Belt, Inc. v. Mel Bohannon Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983); accord

United States v. Smithfield Foods, Inc., 969 F. Supp. 975,977 (E.D. Va. 1997). The Fourth Circuit

has indicated that reconsideration is also appropriate where “i subsequent trial produces

substantially different evidence” or “the prior decision was clearly erroneous and would work

manifest injustice.” Am. Canoe Ass’n, 326 F.3d at 515 (quoting Sejman v. Warner-Lambert Co.,

XstX ZX

because the judgment that Chapman seeks to challenge was not a final judgment, Rule 54(b) is the

proper vehicle for bringing this sort of contest.

Case 3:18-cv-00597-JAG-RCY Document 161 Filed 03/03/21 Page 17 of 18 PagelD# 1938

845 F.2d 66, 69 (4th Cir. 1988)). Generally, the Court will not entertain a motion to reconsider

which asks the Court to “rethink what the Court had already thought through—rightly or wrongly.”

Above the Belt, Inc., 99 F.R.D. at 101.

Chapman does not explicitly address any of the recognized grounds for relief in his Rule

54(b) Motion. Chapman’s Rule 54(b) Motion and his supporting memorandum (ECF No. 157)

are not clearly directed at a specific conclusion of the Court. Rather, Chapman states generally

that:

When a White man stands for his rights he’s called racist. When Blacks do

it, it is called heritage.

Chapman has given a clear and concise explanation of a pattern and culture

of racial Discrimination.

This Court’s 23 page typewritten Memorandum Order is premature, wrong,

incoherent, disjointed, rambling, frivolous and constitutionally defective, With

conclusory allegations and bare dismissals NOT rooted in facts.

This dismissal is prima fade evidence of this Courts [sic] premature

prejudicial bias against Chapman because he is a White inmate.

Chapman wants this Court to know that “White Inmate Lives Matter.”

(ECF No. 157, at 2, 5 (emphasis in original).)

The remainder of the Rule 54(b) Motion simply repeats conclusory assertions that

Chapman has advanced throughout this proceeding or veers off into other general grievances that

Chapman has, none of which directly relate to the adjudication of the summary judgment award

m question. At bottom, Chapman essentially asks the Court to, “rethink what the Court had already

thought through.” Above the Belt, Inc., 99 F.R.D. at 101. As such, Chapman has failed to identify

any error sufficient to warrant relief under Rule 54(b). Accordingly, Chapman’s Rule 54(b)

Motion (ECF No. 156) will be DENIED.

Case 3:18-cv-00597-JA,G-RCy Document 161 Filed 03/03/21 Page 18 of 18 PagelD# 1939

V. Conclusion

The Eighth Amendment claims raised in Claims One (a), Two (a), Three (a), Five (a),

Six (a), and Seven will be DISMISSED. The Equal Protection claims under the United States and

Virginia Constitutions raised in Claim One (b) will be DISMISSED WITHOUT PREJUDICE.

The Equal Protection claims under the United States and Virginia Constitutions raised in Claims

Two (b), Three (b), Five (b), and Six (b) will be DISMISSED. Chapman’s Rule 54(b) Motion

(ECF No. 156) will be DENIED. All of Chapman’s other outstanding motions (ECF Nos. 95,107,

109, 123, 125, 127, 130, 133, 135, 137, 139, 141, 143, 147, 148, 149, 150, and, 158) will be

DENIED AS MOOT. This action will be DISMISSED.

An appropriate Order will accompany this Memorandum Opinion.

fsf

■>

Date: ' March 2021

Richmond, Virginia

United States District Jud/e

Case 3:18-cv-00597-JA,f?-RCY Document 162 Filed 03/03/21 Page 1 of 1 PagelD# 1940

/ ,,

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

LOUIS ROY CHAPMAN,

Plaintiff,

Civil Action No. 3:18CV597

PHYLLIS SMITH, et al.,

Defendants.

FINAL ORDER

In accordance with the accompanying Memorandum Opinion, it is ORDERED that:

The Eighth Amendment claims raised in Claims One (a), Two (a), Three (a),

Five (a). Six (a), and Seven are DISMISSED;

The Equal Protection claims under the United States and Virginia Constitutions

raised in Claim One (b) are DISMISSED WITHOUT PREJUDICE;

The Equal Protection claims under the United States and Virginia Constitutions

raised in Claims Two (b), Three (b), Five (b), and Six (b) are DISMISSED:

Chapman's Rule 54(b) Motion (ECF No. 156) is DENIED;

Ail of Chapman's other outstanding motions (ECF Nos. 95, 107, 109, 123, 125,

127, 130, 133, 135, 137, 139, 141, 143, 147, 148. 149. 150, and, 158) are DENIED

AS MOOT;

This action is DISMISSED.

Chapman is advised that he may appeal the decision of this Court. Should he wish to do

so, a written notice of appeal must be filed with the Clerk of the Court within thirty (30) days of

the date of entry hereof. Failure to file a timely notice of appeal may result in the loss of the ability

to appeal.

The Clerk is DIRECTED to send the Memorandum Opinion and Order to Chapman and

counsel of record.

It is so ORDERED.

Date:

March 2021

Richmond, Virginia

John A. Gibney, Jr. /

United States District Judge

Case 3:18-cv-00597-JAG-RCY Document 177 Filed 11/08/21 Page 1 of 1 PagelD# 2005

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

LOUIS ROY CHAPMAN,

Plaintiff,

Civil Action No. 3:18cv597

PHYLLIS SMITH, et al.,

Defendants.

ORDER

By Memorandum Opinion and Order entered March 3,2021, the Court addressed all of the

parties’ outstanding motions and dismissed the action. (ECF Nos. 161, 162.) On April 3,2021,

the plaintiff filed a “Motion Commanding Court To Respond” wherein he requests that the Court

address his outstanding motions. (ECF No. 163.) Because the Court has addressed all of the

outstanding motions, the Court DENIES the plaintiffs motion. (Id.)

The Clerk is DIRECTED to send a copy of this Order to the plaintiff.

It is so ORDERED.

Date:u November 2021

Richmond, Virginia

/s/

John A, Gibncy, Jr, / J

United States District Juda

FILED: November 3, 2021

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-6587

(3:18-cv-00597-JAG-RCY)

LOUIS ROY CHAPMAN

-» %

Plaintiff - Appellant

PHYLLIS SMITH, Education Director, LVCC; DINAH KREITZ; SHANIQUA

MOORE, Law Library, LVCC; DAVE ROBINSON, Chief of Operations, LVCC;

T. WALKER, Recreation Supervisor; MARILYN SHAW, Assistant Warden

Program, LVCC; CRYSTAL JONES, Facility Ombudsman, LVCC; RENEE

WOODSON, Regional Ombudsman, VDOC; K. COSBY, Regional Ombudsman,

VDOC; LAURA TORGESON; TAMIKA SOMMERVILLE; TALIA NEVILLE;

KIAESHIA THOMAS; COMMONWEALTH OF VIRGINIA; GLOBAL

EXPERTS AND OUTSOURCING, INC.

Defendants - Appellees

and

JENNIFER WALKER, Food Service Director, LVCC; N. C. EDMONDS,

Captain, LVCC; MASON, Food Service Supervisor, LVCC; J. SMITH, Health

Services Administrator, LVCC; SUSAN MINTER, Nurse Practitioner, LVCC;

KEEFE CORPORATION, INC.

Defendants

MANDATE

The judgment of this court, entered September 20, 2021, takes effect today.

This constitutes the formal mandate of this court issued pursuant to Rule

41(a) of the Federal Rules of Appellate Procedure.

/s/Patricia S. Connor, Clerk

Additional material

from this filing is

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.