Petition for Writ of Certiorari — Karsten O. Allen, Petitioner v. J. Mayo, et al.
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FILED: November 30, 2021
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-6822
(1:20-cv-00780-TSE-JFA)
KARSTEN O. ALLEN
Plaintiff - Appellant
v.
J MAYO Officer; J. SMITH, Officer; T. D. JOHNSON, Captain; .L FELTNER,
Institutional Hearings Officer; T. S. FOREMAN, Unit Manager; ISRAEL
HAMILTON, Warden; L. FIELDS, Unit Manager
Defendants - Appellees
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.
A/PATRICIA S. CONNOR. CLERK
ApftertAix JL
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-6822
KARSTEN O. ALLEN,
Plaintiff - Appellant,
v.
J MAYO Officer; J. SMITH, Officer; T. D. JOHNSON, Captain; J. EELTOBR,
Institutional Hearings Officer; T. S. FOREMAN, Unit Manager; ISRAEL
HAMILTON, Warden; L. FIELDS, Unit Manager,
Defendants - Appellees.
District Court for the Eastern District of Virginia, at
Alexandria. T. S. Ellis, III, Senior District Judge. (l:20-cv-00780-TSE-JFA)
Submitted: November 23, 2021
Decided: November 30,2021
Before NIEMEYER, FLOYD, and RUSHING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Karsten Obed Allen, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Karsten O. Allen, a Virginia inmate, appeals the district court’s order granting
Defendants summary judgment on Allen’s 42 U.S.C. § 1983 complaint. We have reviewed
the record and find no reversible error. Accordingly, we affirm for the reasons stated by
the district court. Allen v. Mayo, No. 1:20-cv-00780-TSE-JFA (E.D. Va. May 4, 2021).
We dispense
presented in
with oral argument because the facts and legal contentions are adequately
the materials before this court and argument would not aid the decisional
process.
AFFIRMED
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IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
Karsten O. Allen.
Plaintiff,
)
)
)
)
)
)
)
v.
J. Mayo, et aL,
Defendants.
l:20cv780 (TSE/JFA)
ORDER
For the reasons stated in the accompanying Memorandum Opinion, defendant’s motion
for summary judgment [Diet No. 29], is GRANTED; and it is further
ORDERED that plaintiffs motions for summary judgment (Dkt. No. 34] and sanctions
[Dkt. No. 36] are DENIED.
This is a final Order for the purposes of appeal. To appeal this decision, plaintiff must
file a written notice of appeal with the Clerk’s office within thirty (30) days of the date of this
Order.
Fed. R. App. P. 4(a). A written notice of appeal is a short statement indicating a
desire to appeal and including the date of the Order the plaintiff wishes to appeal. Failure to tile
a timely notice of appeal waives the right to appeal this decision.
The Clerk is directed, pursuant to Fed. R. Civ. P. 58, to enter final judgment in favor of
defendants; to send a copy of the Memorandum Opinion and this Order to plaintiff pro se and to
counsel of record for defendants; and to close this civil action.
Entered this
Alexandria, Virginia
day of
W
2021.
U
T. S. Ellis. Ill
United States District Judge
Pi
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IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
Karsten O. Allen,
Plaintiff,
v.
J. Mayo, et al.,
Defendants.
)
)
)
)
)
)
)
l:20cv780 (TSE/JFA)
MEMORANDUM OPINION
Karsten O. Allen (“Allen” or “Plaintiff’), a Virginia inmate proceeding pro se, filed a civilrights action pursuant to 42 U.S.C. § 1983, alleging the defendants deprived him of his right to be
present at his disciplinary hearing, at which he was convicted and the conviction later overturned;
and denied him of an interim review to have his good conduct allowance (“GCA”) level corrected
after the institutional conviction was overturned. [Dkt. No. 1 at 7-8, 8]. Defendants have filed a
motion for summary judgment, supported by affidavits with exhibits attached. [Dkt. Nos. 29, 30].
•
Allen has been afforded the opportunity to file responsive materials pursuant to Roseboro w
Garrison. 528 F.2d 309 (4th Cir. 1975), and he has responded. Allen has also filed a motion for
summary judgment, supported by exhibits and an affidavit [Dkt. Nos. 34, 35],' as well as a motion
for sanctions. [Dkt. No. 36]. Accordingly, this matter is now ripe for disposition. For the reasons
that follow, defendants’ motion for summary judgment must be granted, and plaintiffs motions
for summary judgment and sanctions must be denied.
1 In his response to the motion for summary judgment, Allen appears to be attempting to amend his complaint by
adding a substantive due process claim. [Dkt. No. 35 at 9], A claim raised in opposition to a motion for summary
judgment is not properly before the Court. See Klein v. Boeing Co.,, 847 F. Supp. 838, 844 (W.D. Wash. 199 ).
Allen cannot amend his complaint by raising new matters in a response to a motion. See Hurst v. District.of
Columbia 681 F App’x. 186,194 (4th Cir. 2017) (“a plaintiff may not amend her complaint via briefing ) (citing
Commonwealth of Pennsylvania v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988)). Such a claim raised via
briefing” is not properly before the Court and will not be addressed here.
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Allen’s two claims stem from an October 15, 2019 disciplinary conviction that was
subsequently overturned on February 13, 2020. [Dkt. No. 1 at 4-7].
1. Allen was denied his right to due process to be present at his disciplinary hearing
because defendants Officer J. Mayo, Officer J. Smith, Captain Johnson,
Institutional Hearing Officer J. Feltner, Unit Manager T. S. Foreman, and Warden
Hamilton because of the submission, review, use, and upholding of his conviction
based upon a falsified “Refusal to Appear” form. [Id at 7-8].
2 Unit Manager L. Fields denied Allen his due process rights because he lefused
to provide Allen an interim review to correct his “good time earning level to
remedy Allen’s “loss of good time due to” the overturned disciplinary conviction
and Fields actions “upheld the taking of the good time credits.” [Id at 8].
Defendants contend that Claim 1 does not involve a loss of a liberty interest because the penalty
imposed was a loss of visitation and telephone privileges, which is not an “atypical and significant
hardship
... in relation to the ordinary incidents of prison life.” Sandin v. Conner. 515 U.S. 472,
484 (1995). Defendants argue that Claim 2 has no merit because Allen did not lose any
accumulated good time credits and he has no protected liberty interest in remaining in or being
assigned to a particular good conduct allowance level. Plaintiff argues he is entitled to summary
judgment because the defendants submitted and relied upon a false statement that he had refused
to attend the hearing, which was later proved true and his conviction was overturned; and that
defendant Fields denied him an interim review to correct his “good time earning level,” which was
based upon the disciplinary charge that was overturned.
I. Undisputed Facts
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law .” Fed. R. Civ. P.
56(a). Defendants, pursuant to Federal Rule of Civil Procedure 56 and Local Rule 56, set forth a
statement of material facts that defendants contend are undisputed. In response, plaintiff
substantially complied with his obligations under those Rules by submitting statements of
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un disputed facts, although plaintiff failed to comply with the mandate to cite to specific record
evidence.2
Accordingly, the following statement of uncontested facts is derived from a review of
defendants’ statement of undisputed facts, plaintiffs responses, and the record.
1. Allen is and has been at all times pertinent to this action, an inmate incarcerated
within VDOC and housed at either Sussex I State Prison (Sussex I) or Keen Mountain
Correctional Center (Keen Mountain).
2. On September 20, 2019, while Plaintiff was incarcerated at Sussex I, Correctional
Officer T. Johnson charged Allen with Disciplinary Offense #201, Disobeying an Order, after
Allen refused to return to his cell and lockdown as instructed following in-pod recreation. [Dkt.
No. 30-1 at U 4 and Enclosure A],
3. Allen was served with a copy of the charge on September 21, 2019 and declined the
penalty offer. The disciplinary hearing was held on October 15, 2019. [Id, at 4-5]. On the date of
the hearing, defendants Mayo, Smith and Johnson signed a refusal to attend the hearing form
indicating that Allen refused to appear because he was at recreation. [IdJ The hearing was
conducted in Allen’s absence, and he was found guilty based on the reporting officer s written
testimony. [IdJ The Inmate Hearings Officer, defendant Feltner, imposed a penalty of the 30-day
loss of telephone privileges and the 30-day loss of visitation privileges. [IdJ. Defendant Foreman
approved the charge and disposition. [Id, at 4],
4. Allen appealed the Inmate Hearings Officer’s decision to the Warden, defendant
Hamilton, who upheld the decision on November 26, 2019. [Id, at ^ 5 and Enclosure B],
2 The record of admissible evidence includes defendants’ affidavits and exhibits, and plaintiffs verified complaint
[Dkt. No. 1]; and his memorandum in support of his motion for summary judgment [Dkt. No. 35] and plaintiffs
“Affidavit” in his memorandum in support of his cross motion for summary judgment. [Dkt. No. 37]. See Goodman
v DiggSi 986 F.3d 493, 498-99 (4th Cir. 2021) (verified pleadings are the “equivalent of an affidavit”).
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5. Allen subsequently wrote to the Offender Discipline Unit (“ODU”) complaining about
his disciplinary conviction because he had not been outside for recreation on October 15, 2019 as
stated in the refusal form. [Id at 9, 14-15], On February 13, 2020, the ODU investigated the
matter, confirmed Allen was not outside and overturned the charge. [kL at 13]
6. Records reflect that Allen received his 2019 annual review at Sussex I on December 2,
2019. [Dkt. No. 30-2 at^[ 6 and Enclosure A], Allen scored in Earning Level II during his annual
review and his evaluation was approved by Ms. Foreman, at Sussex I, on January 13, 2020. [Id].
During the 2019 annual review approved by Ms. Foreman, Allen’s earning level did not change
from his 2018 annual review, at which time he also scored in Earning Level II. [kL]7. Allen was transferred to Keen Mountain on February 21, 2020 “for an unrelated
administrative matter.” [Dkt. Nos. 1 at 1] 29; 30-2 at U 4].
8. Allen was initially assigned to Building B, a general population assignment, which
was overseen by defendant Unit Manager Fields. [Dkt. No. 30-2 ffl] 4, 7].
9. While in Building B, Allen’s Counselor was Counselor Booth. [Id at K 5; Dkt. No. 1
at t 29].
10. If an inmate wants an interim review of his classification, the inmate must submit a
request form to his Counselor explaining the reasons why the review is warranted. [Id. at f 5].3
The inmate’s assigned counselor then reviews the request to determine if the inmate meets the
criteria for an interim review. [Dkt. No. 30-2 at ] 5], The request is then forwarded to the
appropriate Unit Manager or Chief of Housing Unit and Programs. [Id].
3 See https://www.vadoc.virginia.gov/files/onerating-procedures (VDOC Operating Procedure 830.1, Institution
Classification Management, Offender Management & Programs, click on 830.1 Facility Classification Management,
last accessed April 30, 2021).
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11. Unit Manager Fields does not recall receiving a request from Counselor Booth to
conduct an interim review for Allen. [Id. at ^[ 5], Records do not reflect that Allen asked
Counselor Booth for an interim review or that such request was made of Counselor Booth. [Id.].
The CORIS database indicates that an interim review of Allen’s good time earning level was not
done in 2020 at Keen Mountain. [Id.].
12. Allen desired an interim review because he believed his score from the review at
Sussex I on December 2, 2019 would change due to the charge being overturned by the ODU.
[Dkt. No. 35 at 2], Allen asked Booth, verbally, to conduct an interim review on or about
February 21, 2020. [Id.]. At some time after speaking with Booth, Allen spoke with defendant
Fields who Allen says told him to submit a request and Fields would look into it.
13. Allen remained in Building B until he was moved to segregation in Building C on
April 30, 2020, after he received Disciplinary Charge #111, intentionally destroying state
property, for kicking his cell door. [Dkt. No. 30-2 at ^ 7 and Enclosure B] 4 Once Allen was
moved to Building C on April 30, 2020, defendant Fields was no longer Allen’s Housing
Manager and had no control over what occurred in Building C. [Id at ^ 7]. With the transfer to
Building C, Counselor Booth was also no longer Allen’s counselor. [Id.].
14. On May 3, 2020, Allen filed an informal complaint in which he alleged he had been
denied an interim review to consider the overturned conviction by the ODU. On May 18, 2020,
defendant Fields responded to the infonnal complaint and stated that “they had been in the
process of reviewing [Allen’s] alleged ‘errors’ on your annual review from Sussex I when” Allen
was placed in the Restrictive Housing Unit (“RHU”). [Dkt. No. 1-2 at 11; Dkt. No. 36-1].
4 Allen filed a § 1983 civil action against Fields in the Western District of Virginia on April 12, 2021. Allen v.
Fields et al., 7:21-cv-00207-TTC-RSB (Allen III (filed April 12, 2021). The factual allegations in that complaint
overlap with those set forth in the present complaint regarding Fields. Allen II, Dkt. No. 1 at 2.
5
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15. On May 20, 2020, Allen was found guilty of the April 30, 2020 charge, Disciplinary
Charge #111, intentionally destroying state property, for kicking his cell door, and fined $ 15
dollars. [Dkt. No. 30-2].
16. The evaluation of an inmate’s security level and good time earning level by the
assigned counselor and the ICA during the inmate’s annual review is a separate process from the
disciplinary hearing process, [hi at H 8], While disciplinary charges are one of several factors
that have a bearing on the evaluation and scoring of an inmate’s good time and security level, it
is not the only factor. [IdJ.
17. Records indicate that during Allen’s December 2020 annual review at Keen
Mountain, Allen scored in and was assigned to Earning Level IV. [Id, at 1) 9 and Enclosure C].
He continues to earn sentence credit at Level IV, which means that he receives zero credit for
every 30 days served. [IdJ. The Sussex I charge was not noted or mentioned in the December
2020 annual review.
II. Standard of Review
“When cross-motions for summary judgment are before a court, the court examines each
motion separately, employing the familiar standard under Rule 56 of the Federal Rules of Civil
Procedure.” Desmond v. PNGI Charles Town Gaming. LLC, 630 F.3d 351, 354 (4th Cir. 2011).
Summary judgment is appropriate only if “the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
see also Anderson v. Liberty Lobby. Inc.. 477 U.S. 242, 247-48 (1986). The party seeking
summary judgment has the initial burden to show the absence of a material fact. Celotex Corn, v.
Catrett 477 U.S. 317, 325 (1986). The facts shall be viewed, and all reasonable inferences drawn,
in the light most favorable to the non- moving party. Anderson. 477 U.S. at 255. Parties asserting
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that a fact cannot be or is genuinely disputed must comply with the requirements of Fed. R. Civ.
P. 56(c) and Local Civ. R. 56(B).
III. Analysis
Plaintiff alleges his Fourteenth Amendment rights were violated at the October 15, 2019
disciplinary hearing because the defendants submitted and relied upon a false statement that he
had refused to attend the hearing, which was later proved true and his conviction was overturned;
and that defendant Fields denied him his due process rights because he refused to provide Allen
an interim review to correct his “good time earning level,” which was based upon the disciplinary
charge that was overturned. The defendants move for summary judgment asserting that Allen had
no liberty interest at stake with regard to the disciplinary hearing and that plaintiff suffered no
prejudice in his December 2, 2019 score for his January 13, 2020 review. [Dkt. No. 30 at 6-9 11].
Plaintiff responds that he has a liberty interest and that the defendants denied him a hearing in
violation nf Wolff v. McDonnell. 418 U.S. 539 (1974). [Dkt. No. 35 at 3-4], Plaintiff asserts that
Fields was aware of his request for an interim review and that he failed to conduct such a review
that would have corrected his good time allowance level and restored lost good time from the
Sussex I conviction that was overturned. [Id, at 8].
A. Claim 1: October 15, 2019 Disciplinary Hearing
As a matter of law, Allen’s motion for summary judgment must be denied. The Due Process
Clause of the Fourteenth Amendment provides that no State shall “deprive any person of life,
liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. Allen’s
allegations, even if true, do not state a claim upon which relief can be granted because he has failed
to identify a protected liberty interest that would trigger the application of the due process
procedures set forth in Wolff, 418 U.S. at 556-57.
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“To state a procedural due process violation, a plaintiff must (1) identify a protected liberty
or property interest and (2) demonstrate deprivation of that interest without due process of law.”
Prieto v. Clarke, 780 F.3d 245, 248 (4th Cir. 2015). Prisoners possess a liberty interest only in (1)
state-created entitlements to early release from incarceration, see Bd. of Pardons v. Allen, 482 U.S.
369, 381 (1987), and (2) being free from conditions that “imposef] atypical and significant
hardship ... in relation to the ordinary incidents of prison life.” See Sandm, 515 U.S. at 484. Where
a plaintiff fails to identify a protectable liberty or property interest that the defendant’s actions
placed in jeopardy, he fails to establish that he is owed any level of procedural protection. See
Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (“We need reach the question of what process is
due only if the inmates establish a constitutionally protected liberty [or property] interest ).
Thus, the due process question presents two related but distinct inquiries: whether the loss
at issue implicates a liberty interest triggering procedural due process requirements; and, if so,
whether the procedures afforded plaintiff satisfied those requirements. See Dilworth v. Adams,
841 F.3d 246, 250-51 (4th Cir. 2016); see also Prieto, 780 F.3d at 259 (“Once a liberty interest is
established, the question then becomes what process is due to protect it.”). Allen’s claim is
premised upon his implicit belief “that any state action taken for a punitive reason encroaches upon
a liberty interest under the Due Process Clause.” Sandin, 515 U.S. at 484. His premise is mistaken
because “[l]awful incarceration brings about the necessary withdrawal or limitation of many
privileges and rights,” temporarily losing privileges as “[discipline by prison officials in response
to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a
court of law.” Id. at 486.
Here, Allen assumes his loss of telephone privileges and visitation are losses that implicate
a liberty interest and that a violation of the procedures outlined in Wolff entitles him to relief.
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Allen’s position is incorrect.5 Allen’s allegation that he was denied his right to be present at the
hearing because of the false refusal to appear form fails to state a viable due process claim because
neither a loss of telephone privileges nor visitation involve a recognized liberty interest.
It is well established that inmates do not have an absolute right to use a telephone. United
States v.Alkire, No. 95-7885,82 F.3d 411 (table), [published in full-text format at 1996 U.S. App.
LEXIS 7021*1-2] (4th Cir. Apr.10, 1996) (“Alkire’s complaint that the portion of the sentence
restricting his use of a telephone while in prison is without merit; there is no constitutional or
federal statutory right to use of a telephone while in prison.”).6 Thus, plaintiffs loss of telephone
privileges simply does not rise to a level deserving of constitutional protection.
Likewise, it is well settled that loss of visitation privileges does not implicate a liberty
interest “The Fourth Circuit has recognized that ‘there is no absolute right to prison visitation,
nor is there a constitutional right to prison visitation, either for prisoners or visitors ....
Aitrphnlanvahh v. Ozmint, 2009 U.S. Dist. LEXIS 59779, *9-10 (D.S.C. July 13, 2009) (quoting
White v.
Keller, 438 F. Supp. 110, 114-15 (D. Md. 1977), affd, 588 F.2d 913 (4th Cir. 1978)),
= The minimum procedural due process requirements in a disciplinary heanng that involves a loss of a liberty
interest are’ (1) written notice of the claimed violation at least 24 hours prior to the disciplinary heanng, (2) a
written statement by the adjudicator as to the evidence relied upon and the reasons for the disciplinary action, and
(3) the right to call witnesses and present evidence, when doing so would not be “unduly hazardous to institution
safety or correctional goals.” Wolff. 418 U.S. at 563-66. The Fourth Circuit noted that Wolff held inmates are not
entitled to confront the witnesses against them, nor are they guaranteed the right to retained or appointed counsel.
Brown v. Braxton. 373 F.3d 501, 504-05 (4th Cir. 2004) (citing Wolff, 418 at 567-70).
an involuntary transfer to a highersecu
393 396 (7th Cir ?nrm cert, denied. 534 U.S. 1093 (2002) (“In light of Sandm, the deprivations that Smith
suffered as a result of the disciplinary proceedings - namely, 22 days in segregation, a six-month loss of privileges
associated with his demotion to C class, and six days without phone privileges - do not implicate a hberty
Merest ”)• see, e.g., Tannev v. Boles. 400 F. Supp. 2d 1027, 1040 (E.D. Mich. 2005) (citations omitted) (cone uding
that an inmate’s loss or restriction of telephone privileges for disciplinary reasons is not considered an atypical
significant hardship, even when the disciplinary charges are allegedly false, and thcrefore does not implica e a
liberty interest protected by due process); Husbands v. McClellan, 990 F Supp. 2 4, 217 (W.D.N.Y. 1998) (.The
temporary loss of the various privileges alleged in this case — i.e., telephone, package, commissary, and recreation
privileges_does not represent the type of deprivation which could reasonably be viewed as imposing an atypical
an d significant hardship on an inmate.”).
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aff d, 358 F. App’x. 431 (4th Cir. 2009).
Neither prisoners nor would-be visitors have a constitutional right to visitation.
White v. Keller. 438 F. Supp. 110, 115 (D. Md. 1977) (but leaving open the
possibility that a permanent ban on all visitation could implicate the Eight
Amendment), affd, 588 F.2d 913 (4th Cir. 1978); see_alsp Kentucky Dep.tof
Pnrrer.tinns v. Thomuson, 490 U.S. 454, 461 (1989) (finding no right to visitation
guaranteed by the Due Process Clause). In sum, visitation is a privilege, not a
constitutional right. Wright v. Vitale, 937 F.2d 604 (4th Cir. 1991).
Dunford v. McPeak, No. 7:08cv00018,2008 U.S. Dist. LEXIS 5229, *9 (W.D. Va. Jan. 24,2008).7
As noted in Dunford. “[applying Sandjn, it is clear that the loss of visitation privileges is ‘within
the normal limits or range of custody which the conviction has authorized the [prison authorities]
to impose,’ id, 515 U.S. at 478, and plaintiff experienced no atypical hardship. Thus, there is no
federal right to enhanced procedural protections at issue here.” 2008 U.S. Dist. LEXIS 5229, *7
n.6.
Further, a violation of one of Wolffs procedural protections, standing alone, does not
constitute a due process violation. Bills v. Hevns, No. 15-CV-11415, 2015 U.S. Dist. LEXIS
150198, *4 (E.D. Mich. Nov. 5, 2015) (“the procedural protections established in Wolff are not
lmplicated” unless the disciplinary conviction involves a “liberty interest ).
the procedural mandates of Wolff are not applicable absent disciplinary punishment
that results in an actual deprivation of a constitutionally protected liberty or
property interest. In other words, even if the plaintiff had sufficiently shown a
192 p 3d 504 508 (5th Cir. 1999) (inmate “has no constitutional right to visitation privileges ), see also Singleton_w
Cecil 176 F 3d 419 424 (8th Cir. 1999) (en banc) (‘“Analysis of either a procedural or substantive due process
claim must begin with an examination of the interest allegedly violated,’ ... and ‘the possession of a protected life,
liberty, or property interest is ... a condition precedent’ to any due process claim. ) (citation omitted).
8 There is also no violation of due process where a disciplinary conviction is overturned in the administrative
pr^ faMorissette v. Pete.s,45 F.3d 1119.1122 (711, C„.
inmate complains of is corrected in the administrative appeal process ); see also Wycoff v Nichols, 94J-3d l 187,
1189-90 (8th Cir. 1996) (finding no liberty interest at stake where a prisoner served forty-five days in admimstiative
segregation before disciplinary decision was reversed). In addition,‘‘[a] claim that a prisoner was t'11Pr0PcJ 7
charged with things he did not do,’ standing alone, does not state a due process claim. Harris v. South, 482 F.
App’x. 929, 930 (5th Cir. 2012) (quoting Collins v. King, 743 F.2d 248, 253 (5th Cir. 1984)).
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violation of procedural due process in connection with the disciplinary charge, the
resulting punishment would have to be such that it “impose[d] atypical and
significant hardship on [him] in relation to the ordinary incidents of prison life.
v White. No. 7:14cv2143,2015 U.S. Dist. LEXIS 87809, *4-5 (N.D. Ala. May 4, 2015),
adopted by. 2015 U.S. Dist. LEXIS 87130 (N.D. Ala., July 6, 2015); cf Fra]ex v. Spaventa, No.
5:17cv201 (FDW), 2020 U.S. Dist. LEXIS 10345, *25 (W.D.N.C. Jan. 22, 2020) (finding
plaintiffs claim that he “was not allowed to attend” his disciplinary hearing immaterial to due
process claim where plaintiff had not been stripped of a protected liberty or property interest at
disciplinary hearing); Hines v. Ray, No. 7:05cv565, 2005 U.S. Dist. LEXIS 37616, at *8-9 (W.D.
Va. Sept. 22, 2005) (“[P]risoners are only afforded procedural due process protections, such as
written notice of charges and the right to call witnesses, when the loss of statutory good time credits
or some other liberty interest is at issue. Hines’ sole punishment for this conviction was a $10.00
fine .... Therefore, Hines was not entitled to any procedural safeguards during the institutional
hearing.”) (citation omitted).
For the above reasons, not only must Allen’s motion for summary judgment be denied,
but the defendants’ motion for summary judgment must be granted.
B. Claim 2: Denial of an Interim Review
Allen asserts he is entitled to summary judgment because he requested an interim review
and Defendant Fields denied him an interim review. Defendant Fields has disputed whether
Allen requested such a hearing because the VDOC’s records do not reflect that a request was
filed and. that as of April 30, 2020, Fields no longer had any authority over an interim review for
Allen because Allen was transferred to the RHU. Fields also contends, as a matter of law, Allen
has no due process claim. Given that defendant Fields disputes the material facts upon which
Allen relies, Allen’s motion for summary judgment must be denied.
Defendant Fields’ motion for summary judgment presents two independent rationales.
First. Fields correctly points out that Allen does not have a liberty interest in any particular
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classification or good conduct time earning rate.9 See James v. Robinson, 863 F. Supp. 275, 278
(E.D. Va. 1994) (“Inmates have no
protected liberty interest in remaining in or being assigned to
a particular good conduct allowance level.”), affd, 45 F.3d 426 (4th Cir. 1994) (unpublished);
c~ alcr» Fwdl v. Murray. 813 F. Supp. 1180, 1182 (W.D. Va. 1993) (“The due process clause
does not create for a prison inmate a liberty interest in earning a certain number of good time
credits.”) (citation omitted). The Western District recently issued an opinion that closely mirrors
Allen’s claim. Spratlev v. Mabrey, No. 7:19cv837, 2021 U.S. Dist. LEXIS 25582 (W.D. Va. Feb.
10, 2021).
Spratlev, like Allen, involved two interrelated claims. Spratley’s first claim alleged he
had been denied a liberty interest because he had been denied a witness and video evidence at his
disciplinary hearing in which he was found guilty and assessed a fine. The district court found
that the imposition of a fine did not rise to the level of a liberty interest and dismissed the first
claim. Id, at *2-6. Spratley’s second claim alleged “that this conviction reduced his good time
earning level
” which “in turn, delayed his mandatory parole release date and, he claims, reduced
the likelihood that he would be granted discretionary parole.” Id, at *2. Spratley held that to the
extent that the existence of his conviction could affect his good time earning level, that effect
does not trigger constitutionally protected due process rights because
Virginia prisoners have no liberty interest in any particular classification or good
conduct time earning rate, either derived from the United States Constitution, Wolff
v. McDonnell, 418 U.S. 539, 557 (1974), or as the result of Virginia laws or
policies, Garner v. Clarke, No. 7:18CV00560, 2019 U.S. Dist. LEXIS 157999
(W.D. Va. Sept. 17, 2019), apneal dismissed and remanded for further
consideration of the due process claim, No. 19-7601 (4th Cir. Oct. 23, 2019). See
also Mills v. Holmes. 95 F. Supp. 3d 924, 931-34 (E.D. Va. 2015) (analyzing
Virginia statutes and VDOC regulations and concluding that maintaining a
particular ... earning level” for good conduct “is not a protected liberty interest in
Virginia”) The Fourth Circuit has also so held, although in an unpublished
decision. West v. Angelone, 165 F.3d 22, [published in full-text format at 1998
9 Allen does not appear dispute this point and states in his affidavit that he has “not in his complaint nor now allege
that a ‘change’ in [his] good time earning level is a protected liberty interest....” [Dkt. No. 37 at 2],
12
• Case 1.20-CV-00780-TSE-JF7
)cument 42
Filed 05/04/21
Page - * of 17 PagelD# 240
U.S. App. LEXIS 27495] (4th Cir. 1998) (unpublished table decision) (“Inmates
have no protected liberty interest in remaining in or being assigned to a particular
good conduct allowance level ....”). Thus, no due process claim can be asserted
based on any change in [an inmate’s] good time earning level as a result of this
conviction.
Spratlev. 2021 U.S. Dist. LEXIS 25582, 6.
Allen alleges that Fields’ alleged denial of the interim review was a “taking of good time
credits.” [Dkt. No. 1 at 8]. Allen’s position is not only contrary to well settled law, but Allen
points to no evidence that he has lost any accumulated good time credits. Instead, Allen s
reference to “loss” refers to potential future credits and not accrued good time credits .The
distinction is of significance because he has no such liberty interest in potential future credits.
See Dennis v.
Clarke, No. 3:15cv603, 2016 U.S. Dist. LEXIS 110036, at *18 (E.D. Va. Aug. 17,
2016) (“It is well established that Virginia inmates do not enjoy a protected liberty interest in the
rate at which they earn either Earned Sentence Credits or Good Conduct Allowances. ) (citing
many cases); nehlasio v. Johnson. 128 F. Supp. 2d 315, 330 (E.D. Va. 2000); (“while the
Virginia Code and relevant VDOC regulations require prison officials to provide opportunities
for inmates to earn GCA credits, they also give officials absolute discretion over GCA
classification... .Thus, Virginia has not created a statutory or regulatory interest in a particular
GCA classification.”) (citing James, 863 F. Supp. at 277-78; Ewell, 813 F. Supp. 1180, 1182
83); Holmes v. Cooper, 872 F. Supp. 298, 302 (W.D. Va. 1995) (“The opportunity to earn good
time credits is not a constitutionally established liberty interest.”); cfi Gaskins v. Johns_on, 443 F.
Supp. 2d 800, 805 (E.D. Va. 2006) (even if an “infraction resulted in reducing the good-time
credits he might earn in the future; it did not result in his losing any already-earned credits . This
distinction is important because prisoners have no liberty interest in obtaining or retaining a
specific prison classification level to allow them to obtain an early release.”). Consequently,
defendant Fields motion for summary judgment on this ground will be granted.
In addition, under VDOC OP 830.1, the interim review process starts with the Counselor,
13
Case l:20-cv-00780-TSE-JF/
)cument 42 Filed 05/04/21 Page
if 17 Page ID# 241
not Fields. While Fields response to the informal complaint on May 18, 2020 indicated that they
were in the process of reviewing [Allen’s] alleged errors on [Allen’s] annual from Sussex I,” the
response continues noting that the process ended “when [Allen]
was placed in the RHU,” and
that no one had denied Allen “anything.” [Dkt. No. 36-1], The statement Allen attributes to
Fields
obviously refers to VDOC OP 830.3, which states in pertinent part that “[a]n offender
who is confined to a
restrictive housing unit is not eligible for advancement to Class Level I.”
VDOC OP 830.3(V)(G). At the time he was transferred to keen Mountain, Allen was at Level II,
which means he was seeking an interim review to obtain Level I.
Thus, it appears from Allen’s own exhibit that the process of an interim review (whether
officially or unofficially underway) was terminated by Allen’s transfer to the RHU, and not by
Fields actions.10 See F.uans v. Chalmers. 703 F.3d 636, 647 (4th Cir. 2012) (“[C]onstitut,onal
. require a demonstration of both but-for and proximate causation” and “intervening acts
torts ..
of other[s]” may “insulate” a defendant from liability). Accordingly, Defendant Fields did not
cause the
denial of an interim review as alleged and he is entitled to summary judgment on this
ground as well.
C. Plaintiff’s Motion for Sanctions
Allen seeks sanctions on the defendants and defense counsel for statements that Fields
made in the
affidavit submitted in support of Fields motion for summary judgment. Allen argues
that Fields’ statements that he did “not recall specifically talking with Allen about his good time
and that the records do “not reflect that Allen asked Counselor Booth for an interim review or
that the request was made of’ Fields. [Dkt. No. 36 at 1; Dkt. No. 30-2 at 2], Allen alleges that
SS Allen intended 'to file «lawsuit. Allen then alleges that Fields filed a false disciplin.iy charge against him
for destruction of state property (kicking his cell door), and Allen was transferred to segregation, kf, 1 -1 at 2.
April 30,2020 institutional conviction has, therefore, clearly not been overtume .
14
' .Case l:20-cv-00780-TSE-JFv
ocument 42 Filed 05/04/21 Page
of 17 PagelD# 242
Fields two statements were untruthful and Fields “willfully and intentionally” made the untrue
statements.
[Dkt. No. 36 at 2]. Allen contends he is entitled to sanctions against defendant Fields
and counsel for the defendants, pursuant to Federal Rules of Civil Procedure 11(b)(3), 11(b)(4),
and 56(h).
“Whether to award sanctions under Rule 56(h) ... is within the district court s sound
discretion.” T.a Michoacana Nat.. LLC v. Maestre, No. 3:17cv727, 2020 U.S. Dist. LEXIS
42951, *22 (W.D.N.C. Mar. 12, 2020) (citing Six_w Generations Fed. Credit Union, 891 F.3d
508,
518-19 (4th Cir. 2018)); Nationwide Mut. Fire Ins. Co. v. D.R. Horton, Inc,, No. 15-351-
CG-N, 2016 U.S. Dist. LEXIS 160148, *13-14 (S.D. Ala. Nov. 18, 2016) (recognizing that in the
context of sanctions under Rule 56(h), the Court “has wide discretion in deciding what
constitutes bad faith”) (citation omitted). Federal Rule of Civil Procedure 56(h) provides:
If satisfied that an affidavit or declaration under this rule is submitted in bad faith
or solely for delay, the court — after notice and a reasonable time to respond
may order the submitting party to pay the other party the reasonable expenses,
including attorney’s fees, it incurred as a result. An offending party or attorney may
also be held in contempt or subjected to other appropriate sanctions.
See
Towers. LLC. 886 F. Supp. 2d 317, 327 (S.D.N.Y. 2012) (for purposes of
Rule 56(h), ‘“bad faith,’ ... ha[s been] found only when the attorneys conduct is ‘egregious,
‘where affidavits contained perjurious or blatantly false allegations or omitted facts
such as
concerning issues central to the resolution of the case.”). “Sanctions under Rule 11 are
appropriate only in ‘extraordinary circumstances.
Lf
Contrary to Allen’s argument, simply because an affiant does not recall a conversation
does not equate to a
false or untrue statement, and there is nothing false or untrue about the
records not reflecting a request was filed. See United Energy Corp. v. United States, 622 F.
Supp 43 (D. Cal. 1985) (failure to accurately recall events not bad faith); see also Raher v.
Federal Bureau of Prisons, No. 03:09cv526 (ST), 2011 U.S. Dist. LEXIS 117725, *22 (D. Oi.
Oct. 12
2011) (“Bad faith in the context of Rule 56(h) requires a deliberate or knowing act for
15
•
Case l:20-cv-00780-TSE-JF
locument 42 Filed 05/04/21 Pagr
of 17 PagelD# 243
an improper purpose. Affidavit testimony that is materially contradicted by prior deposition
testimony alone is not sufficient to show the necessary bad faith under Rule 56(h).”).
Prison personnel interact with hundreds of inmates throughout the course of a single day
and for that very reason it is not surprising that VDOC regulations require inmates submit a form
of some sort so that a record is established and the VDOC can track matters. Allen has not
established any “egregious conduct” that would warrant sanctions and there is no clear evidence
that the statements at issue are either false or submitted in bad faith. Fort Hill Builders, Inc. v^
Nat’ 1 Grange Mut. Ins. Co.. 866 F.2d 11,16 (1st Cir. 1989). Even if an affidavit “suffers from
severe inattention to detail and/or employs misleading language, it does not amount to a
deliberate or knowing act for an improper purpose” such as to warrant sanctions. Cableview
Communs. of Jacksonville. Inc, v. Time Warner Cable Se., LLC, No. 3:13-cv-306 (J/JRK), 2018
U s. Dist. LEXIS 236948, *28 (M.D. Fla. Mar. 19, 2018). It is within the court’s discretion to
deny sanctions even “when an affidavit or declaration ‘suggests a misleading implication,’ a
request for sanctions under Rule 56(h) can be denied because ‘bad faith in the context of Rule
56(h) requires a deliberate or knowing act for an improper purpose.’” Id
Allen relies heavily on Fields May 18, 2020 response to his informal complaint as
support that Fields statements he does not recall Allen’s request and that no record exists of a
written request from Allen is untrue. However, Allen’s belief that Fields is not being truthful,
alone, is insufficient to warrant sanctions. See Booker v. Robinson, 2015 U.S. Dist. LEXIS
91675 (E.D. Va. July 14, 2015) (denying a motion for sanctions pursuant to Rule 56(h) where the
only evidence that an affidavit had been submitted in bad faith was plaintiff s own disagreement
with the affidavit), vacated and remanded on other grounds, 644 F. App’x. 219 (4th Cir. 2016).
Lastly, there is no evidence that defendants’ counsel acted in an improper manner.
V. Conclusion
For the foregoing reasons, defendants’ motion for summary judgment [Dkt. No. 29] must
16
Case l;20-cv-00780-TSE-JF/
ocument42 Filed 05/04/21 Page
* "7
of 17 PagelD# 244
be granted, plaintiffs motions for summary judgment [Dkt No. 34] and sanctions pict. No. 36]
must be denied. An appropriate ordeuvili issue alongside this memorandum opinion.
Entered this
4^ day of
Alexandria, Virginia
2021.
V7
MjL
T. S. Ellis, III
United States District Judge
17
FILED: December 28, 2021
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-6822
(l:20-cv-00780-TSE-JFA)
KARSTEN O. ALLEN
Plaintiff - Appellant
v.
J MAYO Officer; J. SMITH, Officer; T. D. JOHNSON, Captain; L FELTNER,
Institutional Hearings Officer; T. S. FOREMAN, Unit Manager; ISRAEL
HAMILTON, Warden; L. FIELDS, Unit Manager
Defendants - Appellees
ORDER
The petition for rehearing en banc was
circulated to the full court. No judge
requested a poll under Fed. R. App. P. 355. The court denies the petition for
rehearing en banc.
For the Court
/s/ Patricia S- Connor, Clerk
/ty patent JL
loss °T fPOTw*
loss
of owits
30 diosfS
do
j bXhibrt
VIRGINIA DEPARTMENT OF OwrtRECTIONS
Disciplinary Offense Report
a
Offender Name:
Case Number: SXI-2019-2244 ^
,
,861.1 A-1
, r,H<a Q
Report generated by Johnson, T D
rf50Report
run on 09/21/2019 at 10:47 AM
•j
- :
DOC #:
Allen, Karsten O
1333187
Housing: HU4-A-16T-
_________ Reference: _____
Facility: Sussex I State Prison
Offense Code:
201A
Offense Title:
Offense Date:
9/20/2019
Approximate Time: 12:09 AM Location:
Disobeying an Order
,
.
GP Dayroom - HU4-A
DESCRIPTION OF THE OFFENSE
Provide a summary of the details of the offense (i.e.: who, what, when, where, and how; any unusual behavior, any physical evidence and its disposition, and any
immediate action taken - including use of force, etc.)
On the above date and approximate time 12:09pm I, Officer T. Johnson was the control room officer had announced lockdown numerous direct orders
warning after pod rec had ended and Allen, K #1333187 continue to remain on 4A pod. At 12:12pm it was then announced lockdown again, and the doors
cycled open and shut for lockdown. Offender Allen, K #1333187 still declined to follow orders. Upon seeing offender Allen, K #1333187 was still playing
cards on the pod he was instructed again to "go to his cell and lockdown1'. Therefore, this Charge jS being Written.
|
| Investigation
Date Completed:
□
Reporting Officer:
Witnesses:
Officer -In-Charge :
Johnson, T D
1
OIC Signature:
DESCRIPTION CONTINUED ON ATTACHED PAGE
Johnson, T
Title:
Correctional Officer
Date:
9/20/2019
Title:
Captain
Date:
9/21/2019
Time:
8:21 PM
Time:
10:46 AM
ADVISEMENT OF RIGHTS
3y signing below, you indicate your preference regarding the rights indicated. Failure to respond, or indicate a preference, constitutes a WAIVER of the first three
ights. The following forms are available to the offender UPON REQUEST in each housing unit: Witness Request Form, Documentary Evidence Request Form,
and the Reporting Officer Response Form. The offender must submit these request forms to the Hearings Officer within 48-HOURS of the charge being served’.
DO YOU REQUEST A STAFF OR OFFENDER ADVISOR TO ASSIST YOU AT THE HEARING?
H Yes
□ No □ REFUSED TO RESPOND
DO YOU WISH TO REQUEST WITNESSES?
I^Ves
□ No Q REFUSED TO RESPOND
DO YOU WISH TO REQUEST DOCUMENTARY EVIDENCE?
£LYes
□ No □ REFUSED TO RESPOND
□ Yes
[^° HI REFUSED TO RESPOND
DO YOU WISH TO WAIVE YOUR RIGHT TO 24-HOUR PREPARATION TIME PRIOR TO THE HEARING?
DO YOU WISH TO APPEAR AT THE DISCIPLINARY HEARING?
Refusal to appear is an admission of guilt, a waiver of witnesses and the right to a disciplinary
hearing.
t^es □ No □ REFUSED TO RESPOND
YOU HAVE THE RIGHT TO QUESTION REPORTING OFFICER
(In person for Category I Offenses; by submitting a Reporting Officer Response Form for Category II Offenses)
YOU HAVE THE RIGHT TO ENTER INTO A PENALTY OFFER.
YOU MAY REMAIN SILENT. Silence does NOT constitute an admission of guilt.
THE CHARGE MAY BE VACATED AND RE-SERVED AS A DIFFERENT OFFENSE, WHICH CAN BE A HIGHER, EQUIVALENT OR LESSER OFFENSE CODE.
YOU MAY BE FOUND GUILTY OF A LESSER-INCLUDED OFFENSE CODE, IN ACCORDANCE WITH OPERERATING PROCEDURE 861 1--------------------------ou have been informed o^^ch^sjgainstjrou, and advised of your rights at the Disci^^^i
rintName.
Print Name:
late of Service:
Approximate Time:
F OFFENDER REFUSES TO SIGN,SERVING OFFICER WILL CERTIFY REFUSAL:
ADVISOR AT SERVICE OF DOR:
Date of Hearing:
10/2/2019
RD or» \laratloA.
FORMS PROVIDED AT SERVICE (IF REQUESTED)Revised Date:
lojii
paper\uoi'<
$p$e,\r\d\k.
h
1 '
Hearings
Revised Date:
Bf Yes
0 No
Revised Date:
fy h i & it Oj
AiW,;
Offender Name:
Number:
Offense Code:
Offense Date:
cia\
<3si_A Offense Title: P>SPb
Hearing
Date:
Qlg£>ltq
{O' /S’-/?.
(Date)
1333.1n
Bed'Cell:
4;fl
Building:
On
Refusal to Appear
/O'SS- £><] AM
at
Q PM
CSccXer
\oj tfi (i°i
the above named offender was
(Time)
askedby:
_____________________
__________ -
(Print Nig£e and 1 \wf
if he/she wished to attend the hearing/nowever. he/she refused to report to the hearing.
Offender Signature:
(Signed)
Staff Signature:
tC?
(Sigfifcd)
Tender refused to stgn
Note: The completion of this form is not required when the offender w aived his right to
appear at the disciplinary hearing during the serv ice of the charge.
Revision Date: 8'514
Hearings
1 1
Hearings
jl
uiooirL.n’fMiM urrcNsc KcruKi (continued)
Case Number:
•
rter Name: Allen. Karsten O
SXI-2019-2244
Facility: Sussex I State Prison
2^X0* ({) ;
DOC #: t
<187
O
Lj? „J
Housing: HU4-A-1ST
Reference:
OFFENDER'S PLEA AND RIGHTS
Hearing Location:
Plea:
10/15/2019
Time:
10:55 AM
| | No Plea
Q Not Guilty
0 Guilty
Advisor at hearing:
Date:
Sussex I State Prison
________________________
Reason for absence/exclusion of the accused offender:
Was the Reporting Officer present at the Disciplinary hearing?
0 Yes 0 No
Has there been a denial of requested witnesses?
□ Yes □ No
Has there been a denial of Documentary Evidence Forms?
□ Yes □ No
DECISION OF THE HEARINGS OFFICER
0
E Guilty
0 Not Guilty
[U Dismissed
[H
I
0' Reduced Penalty
Informal
| Reduced to Lesser-lncluded Offense
Accepted Penalty Offer within 24 Hours of
Service
Resolution
0 Vacated - Offender waived rewrite/reserve of offense
\X\
0 Vacated for Rewrite/Re-serve
Offense Title: 201A - Disobeying an Order
For the charge of:
0 For the Lesser
Included Offense of:
Offense Title: -----------------------------------------
Reason for Decision:
Based upon the preponderance of evidence, based upon the reporting officers written statement, based upon the reporting officer
stating that she gave the accused several direct orders to lock down however the accused refused and continued to play cards,
based upon the accused refusal to appear by attending outside rec instead of his hearing the accused was found guilty in his .
absence. The refusal was verified by CO Mayo, CO J. Smith who was booth officer and Capt,. Johnson who was also present.
The accused has the right to appeal my decision.
IR 3d - Loss of Telephone - Imposed Value: 30 Days
Penalty:
IR 3e - Loss of Visitation - Imposed Value: 30 Days
Comment:
Hearing Officer's Signature:
Date:
10/15/2019
Feltner, J
Print Name:
INSTITUTIONAL REVIEW:
jx] Approved
0 Dismissed
□ Reduced Penalty
| | Rehear
E For the charge of:
Offense Title:
| | For the Lesser
included Offense of:
Offense Title:
0 Suspended Penalty
0 Informal Resolution
I | Reduced to Lesser-lncluded Offense
201A - Disobeying an Order
Comments:
Penalty:
IR 3d - Loss of Telephone - Imposed Value: 30 Days
IR 3e - Loss of Visitation - Imposed Value: 30 Days
777
7
Signature:
Print Name:
Foreman, T S
Date:
10/16/2019
Title:
Unit Manager
/Ipp^ncltX XReport run on 10/16/2019 at 12:42 PM
Page 2 Hearings
Rev. 01/01/2016
0)
JT> 1 in f
Virginia
Department of Corrections
al Complaint 866_F3_4-i6
In
Informal Complaint
INSTRUCTIONS FOR FILING; Briefly write your issue in the space provided on the Informal Complaint form,
preferably in ink. Only one issue per Informal Complaint. Place your complaint in the designated area at your
facility A receipt is issued within 2 working days from the date received if the informal complaint is not returned
during intake. If no response is received within 15 calendar days, you may proceed in filing a regular grievance.
You may utilize your receipt as evidence of your attempt to resolve youi complaint.
An Informal Complaint is not required for an alleged incident of sexual abuse.
'iA - /a
Housing Assignment
□ Institutional Program Manager
I I Mailroom
/S33/&?
hars-tes' A-Uzn
Offender Number
Offender Name
FI Food Service
I | Commissary
□ Other (Please Specify):
□ Unit Manager/Supervisor
□ Personal Property
□ Medical Administrator
Briefly explain the nature of your complaint (be specific):
0;^
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Offenders - Do Not Write B^Iow This Line
Date Received:______
mvmYi
Tracking #
Assigned to:
Response Due:______
Action Taken/Response:
J)iCsto/innr\/ itCfJAS OP*
1-1
t//o f/i/brroo/ conofi/o/ats_but U/rt afffnder reOL/ed
tio-f
fnrmc r>n t/m nposa/ process, ttouoeuer ajheneuer txje aet oofrce
of a refusal to apfieor
nnf nnly uprififid hy n-Pficer Mnyn but it ts oko uenfiec/ by another officer/stuff
It IS
nr hfiohinn o/ficer. Therefor*, your rJimfi/aint is ou/Mouf—merit one/ you can address
yrtur CDnrerns on
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Printed Name and Title
Respondent Signature
1fHu
IQ-ftill
Date
WITHDRAWAL OF INFORMAL COMPLAINT:
I wish to voluntarily withdraw this Informal Complaint. I understand that by withdrawing this Informal Complaint,
I will not receive a response nor will I be able to file any other Informal Complaint or Grievance on this issue.
Offender Signature:___
Date:____________
Staff Witness Signature:
Date:
Revision Date: 4/25/16
/lij) p&nd Tk
£1
y^hihif -t
sji
wm i
Si
COMMONWEALTH OF VIRGINIA
Department of Corrections
Division of Institutions
Israel Hamilton
Eastern Region
Warden
Sussex I Stale Prison
OFFENDER NAME:
OFFENSE CODE
OFFENSE TITLE:
HEARING DATE:
Karsten Allen
201A
24414 Mussehvhite Drive
IVaverty, Virginia 23891-2222
Phone: (804) 834-9967ext. 41364
Fax: (804) 834-4084
OFFENDER NUMBER:
OFFENSE DATE:
1333187
9/22/2019
HEARING'S OFFICER
DECISION
Guilty
Disobeying an Order
10/15/2019
IR 3d-Loss of TelephoneCASE NUMBER:
Imposed Value:30 Days
IR 3e- Loss of VisitationImposed Value: 30 Days
DECISION RENDERED-WARPEN: Upheld
WARDEN'S SIGNATURE:
DATE:
PENALTY
IMPOSED:
SXI-2019-2244
(51- w#-
This correspondence is forwarded to you in response to the issue(s) cited in your appeal of the offense
referenced above. A thorough review of the issues relative to the administration of the disciplinary
action initiated against you was conducted, and the rationale for the decision at this level is as follows;
A Refusal to Appear Form was completed on October 15, 2019, to show that you failed to be
present for the disciplinary hearing. Your refusal to appear was an admission of guilt and a
waiver of your witnesses. You submit the following procedural errors for review:
Issue #1: You claimed that Officer J. Smith lied and said you went to outside recreation
1 can find neither serious procedural error, nor justifiable reason to modify/disapprove the
decision or the penalty assessed by the Institutional Hearings Officer in your case. This charge is
UPHELD.
Only Category I convictions can be appealed to the Regional Administrator. Category II convictions
cannot be appealed to the Regional Administrator, with the exception of O.P. 861.1, Section XVIII,
F.2. You may appeal this decision within fifteen (15) calendar days to the Regional Administrator,
Disciplinary Appeals Unit, DOC, P.O. Box 26963, Richmond, VA 23261
C:
VACORIS
Attend/V _tL_
-ir,.,.y a ' i) i-1VIRGINIA DEPARTMENT OF/I
r
tECTIONS
DOC-11H
DOC L
,h: Sussex I State Prison
Report generated by Thorne, C L
i
Institutional Classification Authority Hearing
Offender Name: Allen, Karsten
0
DOC#: 1333187
Report run on 01/16/2020 at 02:35 PM
DOC Location: Sussex I State
Prison
Bed Assignment: HU4-A-16-T
Part I: ICA Referral Notice
You were scheduled to appear before the Institutional Classification Authority on or after 12/02/2019 for Good Time Level
Security Level
Comments: Annual Treatment Goals 2019/2020
Obtain and maintain infraction-free conduct
Enroll in and participate in program(s) of choice
Recommendations:
GCA Level 2 with 65 points
SL 4 with 32 points and an H6 override
Authorizing Staff
Date & Time
Hearing Date:
Offender Statement: "It's not fair. I have been doing everything that I am supposed to do and received a bogus charge during
my review period."
Reporting Staff Comments: Counselor explained subject's Annual Review regarding his Good Time Level, Security Level, Case
Plan Goals, and Timeline accordingly."
Part II: Hearing Disposition
Good Time Level Review:
The ICA recommends: Class Level change to Level 2
Rationale: Subject scores 65 points for a GCA Level 2. Offender received one (1) disciplinary conviction during review period
consisting of 201A in September, 2019. Next, offender will gain 20 out of 40 points for annual goals as he did not maintain an
infraction-free status (-20 points) but did participate in programs of his choice (20 points). Lastly, offender will accrue 15 out of
20 pro-rated points for work/vocation.
ICA: Foreman, T S
Date: 1/13/2020
Administrative Review:
Decision: Approve
Class Level change to Level 2
Foreman, T S
Date: 1/13/2020
Comments: Subject scores 65 points for a GCA Level 2. Offender received one (1) disciplinary conviction during review period
consisting of 201A in September, 2019. Next, offender will gain 20 °ut of 40 points for annual goals as he did not maintain an
infraction-free status (-20 points) but did participate in programs of his choice (20 points). Lastly, offender will accrue 15 out of
20 pro-rated points for work/vocation.
Security Level Review:
The ICA recommends: Security Level change to 4 - Close
Rationale: Offender is being recommended for a security level 4 with 32 points and a H6 override. Offender can be managed at
current security level.
ICA: Foreman, T S
Date: 1/13/2020
Administrative Review:
Decision: Approve
Security Level change to 4 - Close
Foreman, T S
Date: 1/13/2020
Appmd i>.
Page 1 of 2
Rev. 04/15/2010
i . X-' E I ~h ^7
m
4?
I
COMMONWEALTH OF VIRGINIA
Department of Corrections
I |AR< >i ! ) \\. CI. ARkl''
niKirfou
IM !. id i\ IV-A’?.'
RIC I :-M' 'MV '. I3‘
i
tdd i i c.74-d!ni'
February 13, 2020
Karsten Allen #1333187
Sussex I State Prison
24414 Musselwhite Drive
Waverly, VA 23891
RE: SXI-2019-2244
Mr. Allen,
... t, „nit Manaeer from your assigned housing unit on the day in question and he has
confirmed0that your housing unit did not have outside recreation on the day in question. As such, the charge
against you has been OVERTURNED by the Offender Discipline Unit.
Sincerely,
*..
Zachary Davis
Offender Discipline Unit
Append iJt JH
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' Va. Code Ann. § 53.1-202.2
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Va. Code Ann. § 53.1-202.2
Copy Citation
Current through the
2021 Regular Session and Special Sessions I and II of the General
Assembly
Title 53.1- Prisons and Other Methods of Correction.
r»Hi> r>f Virginia 1950_
- 15)
Chapter 6. Commencement of Terms; Credits and Allowances.
(Chs. 1
AHtirie 4. Earned Sentence Credits for Persons Committed_Up.on
(Arts. 1 - 4)
After January 1. 1995..C § § S3.1-202.2 — 53.1Felonv offenses Committed on or.
202.5)
§ 53.1-202.2. Eligibility for earned sentence credits.
A. Every person
who is convIctedoTa felony offense committed on orafter January 1,
term of incarceration in a state or local correctional
1995, and who is sentenced to serve a
sentence credits in the manner prescribed by this article.
facility shall be eligible to earn
Such eligibility shall commence upon the person's incarceration in any correctional facility
following entry of a final order of conviction by the committing court. As used in this
"earned sentence credit" mean deductions from a person s
chapter, "sentence credit" and
of confinement earned through adherence to rules prescribed pursuant to § 53.1-25,
term
through program participation as required by §§ 53.1-32.1 and 53.1-202.3, and by
meeting such other requirements as may be established by law or regulation. One earned
sentence credit shall equal a deduction of one day from a person's term of incarceration.
B. A juvenile convicted as an adult and sentenced as a serious juvenile offender under
clause (i) of subdivision A 1 of § 16.1-272 shall be eligible to earn sentence credits for the
portion of the sentence served with the Department of Juvenile Justice in the manner
prescribed by this article. Consideration for earned sentence credits shall require
adherence to the facility's rules and the juvenile's progress toward treatment goals and
objectives while sentenced as a serious juvenile offender under § 16.1-285.1.
History
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Va. Code Ann. § 53.1-25
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Va. Code Ann. § 53.1-25
Copy Citation
Current through the 2021 Regular Session and Special Sessions I and II of the General
Assembly
Code of Virginia 1950
Title 53.1. Prisons and Other Methods of Correction.
Chanter 2. State Correctional Facilities. (Arts. 1 —JD
fChs. 1 - 15)
l_
1, general Provisions. (SS 53.1-18 — 53.1-31.4)
Article
§ 53.1-25. Director to prescribe rules; rules to be available
to prisoners.
The Director may prescribe rules for the preservation of state property and the health of
prisoners in state correctional facilities and for the government thereof. Printed copies of
all such rules shall be made available to prisoners under such terms and conditions as the
Director may prescribe.
History
jMwur.aKsaBCTWJi:
Code 1950, § 53-23; 1970, c. 648; 1977, c. 354; 1982, c. 636.
Annotations
ApparvdiJr
CASE NOTES
This section does not mandate prisoner access
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Va. Code Ann. § 53.1-202.3
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Va. Code Ann. § 53.1-202.3
Copy Citation
Current through the 2021 Regular Session and Special Sessions I and II of the General
Assembly
Title 53.1. Prisons and Other Methods of Correction.
Code of Virginia 1950
(Chs. 1 — 151
Chapter 6- Commencement of Terms; Credits and Allowances.
Artirle
4. Earned Sentence Credits for Persons Committed Upon
(Arts. 1 — 4)
Felony Offenses Committed on or After January^,_1995-_(§§ 53.1-202.2 — 53.1202.51
Notice
P” This section has more than one version with varying effective dates.
§ 53.1-202.3. (Effective July 1, 2022) Rate at which
sentence credits may be earned; prerequisites.
A. A maximum of 4.5 sentence credits may be earned for each 30 days served on a
sentence for a conviction for any offense of:
1. A Class 1 felony;
2. Solicitation to commit murder under 5 18.2-29 or any violation of 5 18.2-32, 18.Z32.1. 18.2-32.2. or 18.2-33;
3. Any violation of § 18.2-40 or 18.2-45;
4. Any violation of subsection A of 5 18.2-46.5. of subsection D of § 18.2-46.5 if the
death of any person results from providing any material support, or of subsection A of §_
18.2-46.6:
5. Any kidnapping or abduction felony under Article 3 (§ 18.2-47 et seq.) of Chapter 4 of
Title 18.2;
6. Any malicious felonious assault or malicious bodily wounding under Article 4
18.2-51
et seq.) of Chapter 4 of Title 18.2, any violation of § 18,2-51.6 or 18.2-51.7, or any
AppPnJjy M
felony violation of §. 18.2-57
7. Any felony violation of ,§Jl
-60.3:
8. Any felony violation of §. 16.1-253.2 or 18.2-60.4;
9. Robbery under 8 18.2-58 or carjacking under § 18.2-5.8Jj
10. Criminal sexual assault punishable as a felony under Article 7 (§ 18.2:61 et seq.) of
Chapter 4 of Title 18.2;
11. Any violation of S 18.2-90;
12. Any violation of 6 18.2-289 or subsection A of,§ 18.2-300;
13. Any felony offense in Article 3 f§ 18.2-346 et seq.) of Chapter 8 of Title 18.2,
14. Any felony offense in Article 4 (§ 18.2-362 et seq.) of Chapter 8 of Title 18.2, except
for a violation of S 18.2-362 or subsection B of §.,18.2-37IJj
15. Any felony offense in Article 5 fS 18.2-372 et seq.) of Chapter 8 of Title 18.2, except
for a violation of subsection A of § 18.2-374.1:1;
16. Any violation of subsection F of 5 3.2-6570, any felony violation of §..18.2-128, or
any Violation of 5 18.2-481. 37.2-917, 37.2-918, 40.1-100,2, or 40.1-103; or
17. A second or subsequent violation of the following offenses, in any combination, when
such offenses were not part of a common act, transaction, or scheme and such person has
been at liberty as defined in § 53.1-151 between each conviction:
a. Any felony violation of § 3.2-6571;
b. Voluntary manslaughter under Article 1 (8 18.2-30 et seq.) of Chapter 4 of Title 18.2;
c. Any violation of 5 18.2-41 or felony violation of 8 18.2-42.1;
d. Any violation of subsection B, C, or D of § 18.2-46.5 or § 18.2-46.7;
e. Any violation of S 18.2-51 when done unlawfully but not maliciously, ,§ 18.2r51..1 when
done unlawfully but not maliciously, or S 18.2-54.1 or 18.2-54.2;
f. Arson in violation of S 18.2-77 when the structure burned was occupied or a Class 3
felony violation of § 18.2-79;
g. Any violation of S 18.2-89 or 18.2-92;
h. Any violation of subsection A of § 18.2-374.1:1;
i. Any violation of 5 18.2-423. 18.2-423.01. 18.2-423.1. 18.2-423.2, or 18,2-433,2; or
j. Any violation of subdivision E 2 of § 40.1-2,9,.
The earning of sentence credits shall be conditioned, in part, upon full participation in and
cooperation with programs to which a person is assigned pursuant to § 53.1-32.1.
B. For any offense other than those enumerated in subsection A for which sentence
credits may be earned, earned sentence credits shall be awarded and calculated using the
following four-level classification system:
1. Level I. For persons receiving Level I sentence credits, 15 days shall be deducted from
the person's sentence for every 30 days served. Level I sentence credits shall be awarded
to persons who participate in and cooperate with all programs to which the person is
assigned pursuant to 5 53.1-32.1 and who have no more than one minor correctional
infraction and no serious correctional infractions as established by the Department's
policies or procedures.
2. Level II. For persons receiving Level II sentence credits, 7.5 days shall be deducted
from the person's sentence for every 30 days served. Level II sentence credits shall be
awarded to persons who participate in and cooperate with all programs, job assignments,
and educational curriculums to which the person is assigned pursuant to § 53.1-32.1. but
who require improvement in not more than one area as established by the Department's
policies or procedures.
s deducted
j Level III sentence credits, 3.5 days si
3. Level III. For persons rec
1
from the person's sentence for every 30 days served . Level III sentence c. _jits shall be
awarded to persons who participate in and cooperate with all programs, job assignments,
and educational curriculums to which the person is assigned pursuant to .§ 53.1-32.1, but
who require significant improvement in two or more areas as established by the
Department's policies or procedures.
4. Level IV. No sentence credits shall be awarded to persons classified in Level IV. A
person: will be classified'in Level IV if that person willfully fails to participate in or
perate with all programs, job assignments, and educational curriculums to which the
coo
person is assigned pursuant to 5 53.1-32,1 or that person causes substantial security or
operational problems at the correctional facility as established by the Department's
policies or procedures.
C. A person's classification level under subsection B shall be reviewed at least once
annually, and the classification level may be adjusted based upon that person's
participation in and cooperation with programs, job assignments, and educational
curriculums assigned pursuant to 6 53.1-32.1. A person's classification and calculation of
earned sentence credits shall not be lowered or withheld due to a lack of programming,
educational, or employment opportunities at the correctional facility at which the person is
confined. Records from this review, including an explanation of the reasons why a person's
classification level was or was not adjusted, shall be maintained in the person's
correctional file.
D. A person's classification level under subsection B may be immediately reviewed and
adjusted following removal from a program, job assignment, or educational curriculum
that was assigned pursuant to S 53.1-32.1 for disciplinary or noncompliance reasons.
E. A person may appeal a reclassification determination under subsection C or D in the
manner set forth in the grievance procedure established by the Director pursuant to his
powers and duties as set. forth in 5 53.1-10.
F. For a juvenile sentenced to serve a portion of his sentence as a serious juvenile
offender under s 16.1-285.1. consideration for earning sentence credits shall be
conditioned, in part, upon full participation in and cooperation with programs afforded to
the juvenile during that portion of the sentence. The Department of Juvenile Justice shall
provide a report that describes the juvenile's adherence to the facility's rules and the
juvenile's progress toward treatment goals and objectives while sentenced as a serious
juvenile offender under 5 16.1-285.1.
G. Notwithstanding any other provision of law, no portion of any sentence credits earned
shall be applied to reduce the period of time a person must serve before becoming eligible
for parole upon any sentence.
History
1994, 2nd Sp. Sess., cc. 1, 2; 2008. c, 517: 2020. Sp. Sess. I. cc. 50. 52: 2021. Sp. Sess.
I. c. 389.
v Annotations
XDperating Procedure: 830.3
March 1,2019
3. Upon an administrative request for review after significant decline has been noted in one or more
areas of evaluation.
4. Regardless of the type of Class Level review, reduction of an offender's Class Level should be based
on:
a. Determination of a significant decline in any area of performance and responsibility to the extent
that the offender clearly has failed to maintain behaviors that led to advancement to the present
clhss
b. Due consideration will be given to criteria and restrictions that affect the offender in an
administrative placement, special status, or with special needs as set forth in this operating
procedure.
c. Due consideration will be given to the input of the offender's counselor, work supervisor,
building officer, and other staff knowledgeable of the offender's progress towards attainment of
treatment objectives in the offender's Reentry Plan. (5-ACI-5B-03; 4-4297) See Operating
Procedure 820.2, Re-entry Planning.
C. Each good time award evaluation must be based on the offender’s performance during the entire
preceding year in the areas of offender performance and responsibility as follows:
1. Infractions - 0-40 points available
a. A maximum score of 40 points must be awarded to offenders with no convictions under the
Offender Disciplinary Procedure.
b. Deduct 40 points (award 0 points) for any conviction of offenses numbered 100 through 108. See
Operating Procedure 861.1, Offender Discipline, Institutions.
c. Deduct 20 points for each conviction of other Category I (100 series) offenses,
d. Deduct 10 points for each conviction of Category II (200 series) offenses.
2. Reentry Plan, Annual Goals - 0-40 points available
a. Award points based on the offender’s achievement of goals established at the beginning of the
review year in one or more of the following areas:
i. Educational
ii. Program
iii. Vocational
iv. Other
b. Points should be allocated based on the number of goals set for the year i.e., for 2 goals - up to 20
points could be awarded for achievement of each goal.
3. Work-0-20 points available (5-ACI-7A-13; 4-4461; 2-CI-4A-8)
The score for work should be prorated based on the percentage of the year that the offender was
employed.
D. Goal Setting and Points Awards
1. Goals should be achievable in the offender’s current situation, related to identified criminogenic
factors, and represent progress toward the offender’s Reentry Preparation Goals. See Reentry Plan,
Operating Procedure 820.2, Re-entry Planning.
2. VACORIS will provide a tentative point score based on the offender’s current infraction convictions,
progress toward reentry plan goals, and work assignment.
3. Offenders should be recognized for making reasonable efforts to achieve their goals.
a. Offenders should not be penalized for unavailability of educational, program, vocational, or work
opportunities if the offender can document consistent, reasonable efforts to achieve the goal.
b. Offenders should not be rewarded for lack of consistent, reasonable efforts even though they may
be meeting the goal at the time of the review.
Page 4 of 14
/IpptAdiX tL
Operating Procedure: 830.3
March 1, 2019
c. Consideration, either through point scores or override, should be given to offenders who moved
trom one institution to another during the year which resulted in changed goals or affected
achievement of their goals.
d. The counselor and the ICA may adjust the tentative point scores or recommend overrides as
needed to accurately reflect the offender’s overall performance and progress for the entire review
period. The Counselor or ICA should justify and document each adjustment or override in the
Comments” section.
E. Annual Review
1. Annual reviews should be conducted each year within 30 days after the anniversary of the offender’s
Initial Classification Date (ICD); i.e. was first assigned a Security Level.
2. Offenders who have had one or more annual reviews based on the CRD will continue to have annual
reviews based on the CRD.
F. Class Level Evaluation,
1. Class Level changes and EGT awards should not be made within 60 days of an offender’s expected
discharge date.
2. The . counselor should determine the appropriate Class Level based on the total Class Level
Evaluation Points scored by the offender.
3. Class Level Point Ranges
• Class Level I
85 to 100 points
• Class Level II
65 to 84 points
• Class Level III 45 to 64 point
• Class Level IV 44 points or below
4. Prior to an Annual Review or other possible ICA review of Good Time Class Level, the counselor
should review the point score in VACORIS and determine if the offender is currently in the
appropriate Class Level.
5. At the annual review, if it is determined that an offender is currently in the appropriate Class Level,
the counselor should document in VACORIS that that no change is recommended subject to ICA
action and Facility Unit Head review.
6. Foi a change in Class Level, a classification hearing must be held in accordance with Operating
Piocedure 830.1, Institution Classification Management, for the ICA to consider the appropriate
Class Level assignment.
7. The ICA should review the point score and any supporting documentation for proper scoring and to
determine if an override is needed to place the offender in the appropriate Class Level.
8. The ICA should record the recommended Class Level and any override required in VACORIS.
9. For annual review changes in Class Level, the effective date for the change should be the anniversary
of the ICD or CRD as applicable.
10. Any oflender s Class Level point score and subsequent Class Level can be rejected on the basis of
one or more of the approved overrides listed below. All overrides must be justified with override
numbers and supporting comments noted on VACORIS.
Override
....
............ _.
Override Reason
_
#]
A point score in one area of evaluation is inordinately high or low affecting the Class Level •
#2 ; Seriousness or number of institutional infractions warrants a lower Class Level.
#3
A significant recent decrease in an area of evaluation warrants a lower Class Level.
^
^Extraordinary improvement in one or more areas of evaluation warrants a higher Class
Level.
#5
iLack of program availability inordinately affects Class Level.
#6
More information needed (i.e. under investigation, longer period of adjustment needed).
Page 5 of 14
Q
#7
#p
Operating Procedure: 830.3
March 1, 2019
^Refusal of or removal from any required educational, program, vocational, or work
iassignment must result in an automatic override to Level IV. See instructions below.
;Offender has reentered all required educational, program, vocational, or work assignments
: that resulted in use of override #7
11. Use of Ovei rides #7 and #P - See Operating Procedure 820.2, Re-entry Planning.
a. For any educational, program, vocational, or work assignment required on the Reentry Plan, if the
offender refuses to either enroll in or attend, or the offender attends but is removed due to
disruptive, non-participatory, or non-compliant behaviors, the offender should be charged with
offense code 200 in accordance with Operating Procedure 861.1, Offender Discipline,
Institutions.
b. An offender identified as a High Risk Sexual Aggressor (HRSA) (See Operating Procedure
810.1, Offender Reception and Classification.) that does not comply with therapy, counseling, or
other interventions designed to address and correct underlying reasons or motivations for the
abuse should be charged with offense code 200 in accordance with Operating Procedure 861.1,
Offender Discipline, Institutions. (§ 115.78[d])
c. An offender that does not comply with requirements to participate in a residential cognitive
community program should be charged with offense code 119e in accordance with Operating
Procedure 861.1, Offender Discipline, Institutions.
d. An offender who refuses to comply with COV §19.2-310.2 by refusing to provide a DNA sample
should be charged with offense code 116 in accordance with Operating Procedure 861.1,
Offender Discipline, Institutions.
e. An offender who refuses to comply with registration requirements in accordance with Operating
Procedure 735.1, Sex Offender and Crimes against Minors Registration, should be charged with
offense code 119d in accordance with Operating Procedure 861.1, Offender Discipline,
Institutions.
f. If the offender is found guilty of the charge, the offender must be referred to the ICA to be placed
in Class Level IV effective the date the charge was written. A #7 override should be used
regardless of the offenders’ Class Level score.
g. A #7 override may be used for reviews related to enhanced penalties for repeated violations of
Category I offenses not allowing an offender to earn good time for a period in excess of one year
or until they comply with some requirement (such as Offense Code 116 or 119).
h. The #7 override will flag the offenders’ file so that he or she is not allowed to earn good time
until meeting the specified requirements.
i. Once it is. clear that the offender is sincere and actively participating in the specified requirement,
the offender’s case should be brought before the ICA for review of Good Time Award Class
Level. Time spent on a waiting list does not count as participation.
j. As an incentive, offenders participating in an Intensive Reentry Cognitive Community program
while in Class Level IV due to removal from a Therapeutic Community program may be
reviewed for award of good time.
i. Such offenders assigned to an Intensive Reentry Cognitive Community can receive a Good
Time Class Level review at 90 days in the program.
ii. At the discretion of facility staff, an offender who has adequately participated for a minimum
. consecutive 90 day period can advance to the appropriate Class Level effective from the date
of their entry into the Cognitive Community.
(a) The offender’s Good Time Class Level can advance one level, only.
(b) The effective date of the Class Level change must be six months or less prior to the
offender’s GTRD.
(c) The class level change must be submitted no more than 90 days and no less than 60 days
prior to the offender’s release.
(d)An offender’s adjusted days may be utilized to allow adequate time to process the
Page 6 of 14
t
Operating Procedure: 830.3
March 1,2019
offender’s release.
(e) An Override #P is required to move an offender out of Class Level IV under Override #7.
iii. Once a higher Class Level has been achieved, offenders will be monitored to determine if their
behavior continues to warrant the current Class Level and may be adjusted at any time for
non-compliant behavior or disciplinary convictions.
iv. Any offender removed from the Intensive Reentry Cognitive Community will forfeit any good
time awarded under this provision.
k. An Override #P is required to move an offender out of Class Level IV when an Override #7 has
been used. Any change in Good Time Award Class Level should be retroactive to the date the
offender met the specified requirement.
12. VACORIS will generate a notification to the Facility Unit Head to review the ICA's action and
approve or disapprove it. An offender's Class Level will only be changed on Facility Unit Head
approval of the ICA action.
13. A Class Level Evaluation Report (See Attachment 1 for sample.) or Institutional Classification
Authority Hearing report (See Operating Procedure 830.1, Institution Classification Management.)
should be printed and provided to the offender showing Facility Unit Head approval or disapproval
of the ICA action. There is no need for filing a hard copy of either Report.
14. Facility Unit Head approval of ICA action to change Class Level will generate a notification to the
Court and Legal Section to update the offender’s time calculation.
G. An offender who is confined to a reslfiofive R^ffera^S Housing Unit is not eligible for advancement to
Class Level I. (changed 9/1/21)
1. If in Class Level I at the time of assignment to §§
| restorative housing, the ICA should
conduct a formal review within 90 days to determine if that Class Level is still appropriate.
2. It is intended that an offender in IreSirjoFijiS restorative housing should be ready to return to general
population on advancement to Class Level II.
H. Criteria and Restrictions for Special Status Offenders:
1. Upon transfer back to a local jail facility, the offender's good time award eligibility status should not
be affected.
2. Any offender who commits a felony or misdemeanor (except escape convictions) while in
confinement will automatically be reduced to Class Level IV effective the conviction date.
a. The offender will not become eligible for advancement in Class Level for 12 months from the
conviction date.
b. If the offender is presently serving a sentence under the Good Conduct Time (GCT) system, the
new consecutive sentence, or any new concurrent sentence extending the release date established
under COV §53.1-159 will be served under the GCA or ESC system once the GCT sentence has
been satisfied.
3. Any offender returned to confinement as a result of escape and conviction of a felony, misdemeanor,
or a Disciplinary Hearing offense for escape should automatically be reduced to Class Level IV
effective the date of the conviction. The offender will not be eligible for advancement in Class Level
for 12 months from the date of assignment to Class Level IV.
4. In accordance with COV §53.1-199, an offender with offense dates of July 1, 1993 or later and prior
to January 1, 1995 for first degree murder, rape, forcible sodomy, animate or inanimate object sexual
penetralion, or aggravated sexual battery will not exceed the good conduct earning rate of GCA
Class Level III on those related sentences. Any subsequent reduction in an offender's recognition
level requires ICA action and Facility Unit Head approval.
a. GCA Class Level III will be administratively assigned in such cases at the time of the offender’s
initial sentence computation.
Page 7 of 14
Append iJC^r
\
■
Qperating Procedure 830.1, Institution GV
Y
'nation Management
Emotive Date: February 1,2021
modify and develop a Classification Hearing Docket to meet institutional needs. Individua
inmate notification of PAR actions may be accomplished using forms developed at the institution.
b. For job assignment actions, facility staff should use the Facility Job Assignment Docket 841_F6
and the O ffender Work Program Job Application 841_F5.
_
use the Multi-Disciplinary Team
c. ^ ________________ ________ ___ ,
Hearing Docket to document cases reviewed; see Operating Procedure 425.4, Management of
Bed and Cell Assignments (Restricted), (changed 9/1/21)
2. Program assignment reviews are informal hearings.
a. Staff should inform the inmate of the purpose of the hearing, but advance notification is not
required.
b. If the inmate desires to be present, the PAR may permit the inmate to be present.
3. When the review concerns the involuntary removal of the inmate from a job, educational or
treatment program assignment, there should be a written or verbal statement from the person
requesting the removal.
a. The written or verbal statement should provide the reason for the removal and the PAR should
provide the inmate with the opportunity to be present and make a statement.
b. If the inmate is present at the hearing, the PAR should inform the inmate of the decision or
recommendation at that time.
c. Staff should advise inmates that are not present of the decision either verbally or in writing.
4. Upon final action by the appropriate approving authority, staff should enter the action into
VACORIS and provide a copy of the appropriate review form reflecting the PAR'S recommendation
and the final decision by the appropriate approving authority to the inmate.
E. Approval of Program Assignment Reviews:
1. All PAR hearings are reviewed and acted on by a staff person as designated below, who will
approve, disapprove or no action the case.
a. Staff should remand all no action cases to the Assistant Superintendent/Institutional Program
Manager for further review.
b. Staff will document all comments and reasons for all disapprovals on the respective forms.
c. The Facility Unit Head or designee will ensure copies of all classification paperwork are
distributed.
2. The Facility Unit Head is the sole and final authority for approving or disapproving PAR
recommendations for outside work assignments and must personally approve all work assignments
outside the secure perimeter The Facility Unit Head may only delegate this authority to the Assistant
Facility Unit Head for Work Centers; see Operating Procedure 841.2, Offender Work Programs.
3. The Chief of Security must approve all PAR recommendations for work assignments inside the
designated security perimeter but outside the housing unit.
4. The Facility Unit Head may designate one or more supervisory staff to be the final authority for
approving and disapproving all other PAR work assignment recommendations. This designated staff
member must not be the same individual who served as the PAR for the case under review.
V.
<3!
Inmate Initiated Review of Progress (5-AC1-5B-09)
A. It is the responsibility of the inmate to initiate the request for an interim review by completing an inmate
request identifying exactly why an interim review is warranted.
i—
B. The Counselor should make a recommendation and give justification to support their recommendation,
when applicable, and forward the request to the ICA/MDT for consideration.
Cs_
G-
C. Counselor recommendations for an interim review should generally be based on the following criteria:
VIRGINIA DEPARTMENT OF CORRECTIONS
Page 12 of 13
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.