Petition for Writ of Certiorari — Raymond Alexander Ford, Jr., Petitioner v. Ralph Northam, former Governor of Virginia, et al.

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 23-6410

RAYMOND A. FORD, JR.,

Plaintiff - Appellant,

v.

RALPH NORTHAM, Governor of Virginia (Former); GLENN YOUNGKIN,

Governor of Virginia (Present); HAROLD CLARKE, Director of the Virginia

Department of Corrections (VDOC); KEMSY BOWLES, Warden of Coffeewood

Correctional Center (CWCC); KIMBERLY SOUTTER, Institutional Operations

Manager at CWCC; S. RUIZ, Grievance Coordinator at CWCC; GEORGE

WALKER; ASHLYN HARTSOOK, Institutional Program Manager at CWCC;

NICK MEYER, Chaplain at CWCC; S. MOE-WILLIS, Regional Ombudsman for

the VDOC,

Defendants - Appellees.

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

Roanoke. Elizabeth Kay Dillon, District Judge. (7:22-cv-00122-EKD-JCH)

Submitted: September 14, 2023

Decided: September 18,2023

Before WILKINSON, GREGORY, and RICHARDSON, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Raymond Alexander Ford, Jr., Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Raymond Alexander Ford, Jr., appeals from the magistrate judge’s order denying

his motion to appoint counsel and the district court’s order dismissing his 42 U.S.C. § 1983

civil action. We have reviewed the record and find no reversible error. Accordingly, we

affirm the orders. Ford v. Northam, No. 7:22-cv-00122-EKD-JCH (W.D. Va. Nov. 15,

2022; Mar. 31,2023; Apr. 26,2023). We grant Ford’s motion to exceed length limitations

for his informal brief, deny his motions to compel and to extend the filing time for an

informal reply brief, and 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

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FILED: September 18, 2023

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 23-6410

(7:22-cv-00122-EKD-JCH)

RAYMOND A. FORD, JR.

Plaintiff - Appellant

v.

RALPH NORTHAM, Governor of Virginia (Former); GLENN YOUNGKIN,

Governor of Virginia (Present); HAROLD CLARKE, Director of the Virginia

Department of Corrections (VDOC); KEMSY BOWLES, Warden of Coffeewood

Correctional Center(CWCC); KIMBERLY SOUTTER, Institutional Operations

Manager at CWCC; S. RUIZ, Grievance Coordinator at CWCC; GEORGE

WALKER; ASHLYN HARTSOOK, Institutional Program Manager at CWCC;

NICK MEYER, Chaplain at CWCC; S. MOE-WILLIS, Regional Ombudsman for

the VDOC

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

«i

FILED: October 23, 2023

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 23-6410

(7:22-cv-00122-EKD-JCH)

RAYMOND A. FORD, JR.

Plaintiff - Appellant

v.

RALPH NORTHAM, Governor of Virginia (Former); GLENN YOUNGKIN, Governor

of Virginia (Present); CHADWICK DOTSON, Director of the Virginia Department of

Corrections (VDOC); KEMSY BOWLES, Warden of Coffeewood Correctional

Center(CWCC); KIMBERLY SOUTTER, Institutional Operations Manager at CWCC;

S. RUIZ, Grievance Coordinator at CWCC; GEORGE WALKER; ASHLYN

HARTSOOK, Institutional Program Manager at CWCC; NICK MEYER, Chaplain at

CWCC; S. MOE-WILLIS, Regional Ombudsman for the VDOC

Defendants - Appellees

ORDER

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

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

Entered at the direction of the panel: Judge Wilkinson, Judge Gregory, and Judge

Richardson.

For the Court

/s/ Nwamaka Anowi, Clerk

'x C

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

RAYMOND A. FORD, JR.,

Plaintiff,

v.

RALPH NORTHAM, et al.,

Defendants.

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Civil Action No. 7:22-cv-00122

By: Elizabeth Dillon

United States District Judge

memorandum opinion

Plaintiff Raymond A. Ford, Jr., a prisoner in the custody of the Virginia Department of

Corrections (“VDOC”) and proceeding pro se, filed this action pursuant to 42 U.S.C. § 1983. He

paid the full filing fee. His complaint names ten defendants: the former and current governors of

Virginia (Ralph Northam and Glen Youngkin, respectively), VDOC’s Director Harold Clarke,

Kemsy Bowles (the Warden of Coffeewood Correctional Center ( CWCC )), Regional

Ombudsman S. Moe-Willis, and five defendants who work at CWCC, where Ford was housed at

all relevant times: Kimberly Souter, S. Ruiz, C. Walker, Ashlyn Hartsook (sometimes spelled in

defendants’ filing as Hartsbrook or Hartsock), and Nick Meyers.

l

Ford’s complaint is lengthy, consisting of 115 hand-written pages. ( See generally Dkt.

No. 1.) In an introduction, Ford alleges “infringement upon, violation, and denial of various

, rights protected by the United States and Virginia Constitutions, and Religious Land Use and

Institutionalized Persons Act (RLUIPA), the Americans with Disabilities ACT (ADA), and the

1 The style of the complaint also includes the language “all employees at CWCC.” (Compl. 1, Did. No. L)

Defendants’ counsel interpreted that as referring to a separate defendant and declined to accept service on behalf of

that defendant. But the court interprets those words as a reference to where other named defendants are employed,

and not as a separate defendant. (See also Compl. 3 (describing parties).) Regardless, to the extent Ford mtended to

sue “all employees at CWCC,” that entity is not a proper party to a § 1983 action. See Wells v. S. C.D.F. Emps., No.

CA 2T0-3111 -CMC-BHH, 2011 WL 2472512, at *2 (D.S.C. May 19, 2011) (collecting authority for the

proposition that group defendants such as “medical staff’ are not proper defendants under § 1983), report and

recommendation adopted. No. CA 2:10-3111-CMC-BHH, 2011 WL 2463066 (D.S.C. June 21, 2011)

Health Insurance Portability and Accountability Act (HIPAA).” (Id. at 7.)2 His complaint also

includes other claims, as discussed herein.

Most of Ford’s claims are based on his overarching theory that the mitigation measures

used by the governor and VDOC officials to control the spread of COVID-19, and particularly

their making vaccines available to inmates and providing incentives to inmates to accept the

vaccines, were harmful to him and other inmates.3 He states that the “new normal” implemented

by VDOC after the vaccine became available violated his constitutional rights by requiring that

he be

“fully” “vaccinated” with a COVID-19 “vaccine,” which,

according to Plaintiff, is a publicly-funded biological weapon of

mass destruction (WMD or BWMD) that actually causes COVID19 and promotes mutations of COVID-19.

(Compl. 7.)

Ford further asserts that he has “numerous reasons for objecting” to the vaccine and does

not want it. (Id.) These include that he contracted COVID-19 in late 2020, and he has natural

immunity,” as well as his concerns about the vaccine’s safety and effectiveness. He suggests

that “by mandating and infecting Plaintiff, other VDOC prisoners and staff with this BWMD,

defendants are engaged in a practice of genocide, as well as state-sponsored Munchausen

Syndrome by proxy” because extensive use of vaccines is prolonging COVID infections and

sickness. (Id. at 8.) Relatedly, he contends that when the vaccine was released, the VDOC

policies implementing the “new normal” were “acts of both [secession and treason. (Id.)

2 Citations to pages of the complaint are to the numbers assigned by the court s Case

Management/Electronic Case Filing System, not to the handwritten page numbers on the bottom of each page.

3 Although Ford also alleges that defendants encouraged widespread vaccmation because they had a

financial stake in the sale of vaccines (Compl. 87-88), he has presented no facts based on personal knowledge to

support any such claim. Indeed, he even notes that he simply “suspects” that their conduct stems from a conspiracy

to profit from the pandemic and from vaccines. (Id. at 87.) Thus, the court cannot credit those conclusoiy

allegations of a wide-spread conspiracy or of any defendant’s “hand” being in the “cookie jar, as Ford repeatedly

alleges. (See, e.g., id.)

2

Pending before the court is a joint motion to dismiss filed by all defendants (Dkt. No. 17),

to which Ford has responded (Dkt. No. 24). The motion seeks dismissal of all claims against all

defendants on various grounds. Ford also has filed a motion to expand the record. For the

reasons set forth herein, the court will grant defendants’ motion to dismiss, although it will grant

Ford leave to amend—should he choose to do so—in order to provide further factual detail in

support of one of his retaliation claims and his access-to-courts claim. The court will deny as

moot Ford’s motion to expand the record.

I. BACKGROUND

A. Factual Background4

After setting forth his basic theory of the case in the complaint’s “introduction,” Ford

devotes many pages to explaining what a coronavirus is, why both COVID-19 and its vaccines

are WMDs or BWMDs, setting forth a history of the pandemic and the U.S. response to it,

including an alleged “cover-up” related to the release of the COVID-19 virus m China,

explaining various parts of the vaccine, and describing how and why it has been ‘weaponized.

(Id. at 10-41.) He also includes a section explaining the history of U.S. “Munchausen Syndrome

by Proxy” and how the vaccines represent “state-sponsored Munchausen Syndrome by Proxy.”

{Id. at 41-46.) He then discusses why he believes natural immunity is superior in strength to the

vaccines, the “questionable” efficacy of COVID vaccines, how the booster shots affect antibody

levels, and how the vaccines are contributing to the infection rate. {Id. at 47—53.)

Finally, beginning on page 54 of his complaint, Ford begins to discuss COVID- 19-related

events that occurred within VDOC or at CWCC. He explains that that he had worked at the law

library at CWCC since 2018, and he had worked hard to ensure that the law library remained a

4 The court sets forth many allegations from Ford’s complaint here, but additional factual allegations are

discussed in context in addressing his legal claims.

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“COVID-ffee zone.” (Id. at 54.)

In “late 2020,” VDOC and CWCC officials “offered—with incentive for the first time—a

‘flu shot.’” (Id. at 55.) After other prisoners received this shot, and staff and prisoners mingled,

Ford became infected with COVID-19. After his recovery, Ford was told by several doctors that

he had “natural immunity to COVID-19,” and he then conducted “ an extensive research project”

as to natural immunity. (Id.) From then until the filing of his complaint in March 2022, Ford did

not test positive again for COVID, although “nearly all vaccinated prisoners around him have

tested positive.” (Id.)

In December 2020, VDOC distributed a fact sheet about the COVID vaccine being made

available to VDOC prisoners, and many prisoners agreed to be vaccinated, but Ford refused. In

early 2021, defendant Hartsook became CWCC’s new Institutional Program Manager . Ford

alleges that she began implementing directives to implement a “new normal,” which were passed

down from Governor Northam, VDOC Director Clarke, Dr. Anthony Fauci, the CDC, the

Virginia Department of Health, and others. (Id. at 58.) The “new normal,” which would begin

in mid-July 2021, would allow persons who had been fully vaccinated to attend programs,

school, the law library, or any other services offered at CWCC, if they lived in a dorm in which

75% of the people were vaccinated, although the requirement did not apply to “re-entry

programs” run by the state. (Id.)

Ford raised his concerns over the “new normal” policies to numerous people. He

explained to Hartsook and others, and subsequently in numerous informal complaints and

grievances, that vaccinated and unvaccinated prisoners live together at CWCC in dorm-style

rooms, share restrooms and other equipment, and are moved between buildings and even prisons,

and that half of the CWCC staff was not vaccinated. In light of these facts, the new normal

principles made “no sense.” (Id. at 59.) He further explained that the principles were “untimely”

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because Virginia’s state of emergency ended on June 30, 2021, that denying unvaccinated

prisoners access to programs was discriminatory, punitive, and a violation of constitutional

protections, and that because he and “everyone” at CWCC already had COVID, they all had

natural immunity, so the vaccinations were unnecessary. (Id.) Moreover, Ford conveyed that no

physician or other medical staff had ever recommended that he get a COVID vaccine. (Id.)

Nonetheless, because he refused to receive the COVID vaccine, he began to be denied

access to the law library, religious services, and programs. (Id. at 61.) According to Ford, other

“new normal” measures included a decrease in law library hours, the library being closed at

night, a reduction in religious programs from twice weekly to once monthly, educational and

vocational programs being cut down, and visitation being decreased. (Id. at 62—63.)

He also complains that defendants were still enforcing policies and procedures, at the

time of the complaint, that make it more likely that COVID will spread, including refusing to

tum on the ventilation system, refusing to give more than 50 minutes of fresh air or outdoor

recreation daily, and insisting that prisoners wear masks in certain circumstances. (Id. at 83, 8586.)

As noted, Ford filed numerous complaints and grievances about the “new normal”

policies and his other claims raised in this lawsuit. He claims that although all of his grievances

were timely, some were improperly denied as untimely and all were ultimately rejected, despite

their merit. (See Id. at 5, 63-83.) He also alleges that, apparently as a result of both his refusal

to be vaccinated and his filing of grievances and complaints, defendants have retaliated against

him.

5 Although Ford’s complaint is not clear, it appears that when discussing decreases in activities, he is

comparing the “new normal” with activities that were permitted prior to VDOC’s COVID-19-related lockdowns.

(Cf. Compl. 111 (seeking injunctive relief including a return to “normal operations as before the lockdown, state-olemergency, and ‘new normal’”).)

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B. Ford’s Claims

Ford’s complaint lists sixteen claims, which are summarized as follows:

Claim 1: Defendants’ mandates and attempts to compel his

infection by encouraging him to be vaccinated violate the 5th, 8th,

and 14th Amendments of the U.S. Constitution and Article I of the

Virginia Constitution;6

Claim 2: Defendants’ mandates and attempts to vaccinate Ford

will subject him to irreparable harm in violation of the 9th and 1 Oth

Amendments of the U.S. Constitution and Article I of the Virginia

Constitution;

Claim 3: Defendants’ actions in punishing Ford and blocking him

from religious services, the law library, visitation, etc. violate the

1st, 5th, 8th and 14th Amendments of the U.S. Constitution and

Article I of the Virginia Constitution;

Claim 4: Defendants’ actions in allowing both vaccinated and

unvaccinated prisoners housed in re-entry programs to attend

religious services together, while prohibiting Ford from attending

his religious services, violate the 1st, 5th, 8th, 9th, 10th, and 14th

Amendments of the U.S. Constitution and Article I of the Virginia

Constitution;7

Claim 5: Defendants’ implementation of the “new normal” is the

effective suspension of the laws and Constitutions of the U.S. and

Virginia and violates the 9th, 10th, and 14th Amendments of the

U-S. Constitution and Article I of the Virginia Constitution;

Claim 6: Ford’s conviction and sentence were in violation of Due

Process and therefore his continued incarceration violates the 1 st,

5th, 13th, and 14th Amendments of the U.S. Constitution and

Article I of the Virginia Constitution;

Claim 7: Defendants’ actions in disregarding and blocking Ford’s

grievances violate the 1st, 5th, 6th, 8th and 14th Amendments of

the U.S. Constitution and Article I of the Virginia Constitution;

6 Many of Ford’s claims reference multiple—and different—sections of Article I of the Virginia

Constitution. The court does not list the specific sections referenced in each claim here.

7 Part of this claim seems to be an establishment clause claim, but it is based on other prisoners (housed in

re-entry programs, unlike him) being “compelled” to attend certain programs, which Ford characterizes as religious.

Ford does not have standing to pursue such a claim.

6

Claim 8: Defendants’ actions violate the Ku Klux Klan Act of 1871;

Claim 9: Defendants’ actions in denying Ford access to religious

programming violate RLUIPA;

Claim 10: Defendants’ actions of implementing the “new normal”

constitute treason and a secession from the United States, and

those actions violate the 1st, 5th, 6th, 8th, and 14th Amendments

of the U.S. Constitution and Article I of the Virginia Constitution;

Claim 11: Defendants’ actions in establishing a system of tracking

Ford’s vaccination status and releasing such information violate

HIPAA;

Claim 12: Defendants are liable for defamation, slander, and libel

by spreading rumors that Ford was a contagious health hazard;

Claim 13: Defendants’ actions in keeping the ventilation system

off and restricting access to outside air despite a highly contagious

virus circulating violate the 5 th, 8th and 14th Amendments of the

U.S. Constitution and Article I of the Virginia Constitution;

Claim 14: Defendants are able to profit from the vaccine mandates, which is a

conflict of interest and violates Article 1 of the Virginia Constitution;

Claim 15: Defendants’ actions in retaliating against Ford for complaining for all

of the above violate the 1st, 4th, 5th, 6th, 8th, and 14th Amendments of the U.S.

Constitution and Article I of the Virginia Constitution, and

Claim 16: Defendants’ actions in denying Ford access to religious services,

work, visitation, and the law library violate the Americans with Disabilities Act

(ADA), 42 U.S.C. .§ 12101 etseq., and Section 504 of the Rehabilitation Act.

(Compl. 83-99 (setting forth claims with subparts); see also Defs.’ Mem. Supp. Mot. Dismiss 2

4, Dkt. No. 18 (containing nearly identical summary).) Ford does not dispute this

characterization of his claims in his response. (See generally Dkt. No. 24.)

For relief, Ford asks for compensatory and punitive damages, various declaratory

judgments, and injunctive relief. The injunctive relief includes requests that defendants be

ordered to immediately discontinue and rescind the “new normal” policy, to stop keeping track

of who is vaccinated and who is not, to restore Ford with all rights and privileges as those who

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are vaccinated, and to allow Ford to attend his religious services and have adequate access to the

courts. (Compl. 105-115.)

C. Parties’ Arguments

Defendants argue that Ford’s motion to dismiss is subject to dismissal both because he

fails to allege adequate personal involvement by the defendants, so as to render any of them

liable under § 1983, and because his claims fail to state a claim for which relief can be granted.

Other arguments include that defendants are immune from damages for official-capacity claims.

(See generally Mem. Supp. Mot. Dismiss, Dkt. No. 18.)

Ford’s 85-page response to the motion to dismiss and its attachments fill a medium-sized

box. (PL’s Resp. to Mot. Dismiss, Dkt. No. 24.) His filing includes twenty-eight separate

affidavits from him, all of which attach numerous articles, information from websites, or other

documentation in support of the background information in his complaint, his attempts at

exhaustion, or his claims.8 It also includes a 24-page “summary” of those affidavits and the

supporting evidence. (Dkt. No. 24-1.) Moreover, a big chunk of the response itself is dedicated

to a discussion of his affidavits and information from the attachments. (See Pl.’s Resp. 3-43.)

8 The affidavits reference the following topics: (1) COVID-19: a publicly-funded weapon pf mass

destruction used against the people of the United States; (2) Racial justice protests, white Nationalist militias , war on

police and the CHOP, domestic terrorism and the police betrayal, Jan. 6th: the storming of the Capitol; (3) President

Donald Trump’s downplaying of COVID-19 dangers; (4) Operation Warp Speed, AKA Manhattan Project 2; (5)

The use of COVID-19 spike proteins to make COVID-19 vaccines; (6) Variants of SARS-COV-2; (7) The

intentional spread of COVID-19 through vaccinations; (8) Continuous risky research usmg gam-of-function and

gene therapy which caused pandemic; (9) Vax-producers’ admissions that COVID-19 vaccines were rushed, are

extremely unstable, unverified, and will be used to change DNA; (10) Failed HIV/AIDS vaccines which is the basis

of COVID-19 vaccines; (11) Those objecting to experimental vaccinations and eugenics-style practices; (12) me

abomination of vaccine research and development; (13) Risks of vaccination; (14) Deaths after vaccination, (15)

State-sponsored Munchausen Syndrome by Proxy; (16) Elimination of masks and social distancing for the

vaccinated; (17) Spread of Delta variant of COVID-19 among the vaccinated; (18) Rise of COVID-19 after

campaigns of vaccinations and boosters; (19) Two levels of immunity: internal and mucosal immunity; (20) Natural

immunity; (21) Natural immunity 2; (22) Improper assessment for the need of booster shots; (23) Omicron variant;

(24) His sincerely-held religious beliefs and genetic and medical issues exempting him from COVID-19

vaccinations; (25) Relevant laws, codes, rules, policies, procedures, etc.; (26) Complaints, grievances, and meetings

with VDOC officials, Part 1; (27) Complaints, grievances, and meetings with VDOC officials, Part 2; and (26)

Complaints, grievances, and meetings with VDOC officials, Part 3.

8

The heart of Ford’s response to defendants’ arguments is contained on pages 44 through

81. The first portion of that responds to defendants’ arguments of immunity and lack of personal

involvement. (Pi’s Resp. 44-60.) As to these arguments, Ford counters that they are

“premature, unsupported by affidavit, unbelievable, and must fail for these and many other

reasons. ” (Id. at 44.) Ford then turns to the defendants’ arguments regarding his failure to state

a claim. (Id. at 60-81.) His response to these arguments will be discussed in the context of

discussing specific claims. See Section II-D infra.

II. DISCUSSION

A. Motion to Dismiss9

A motion to dismiss under Rule 12(b)(6) tests the complaint s legal and factual

sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); Bell Atl. Carp. v. Twombly, 550

U.S. 544, 554-63 (2007); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008).10 To

withstand a Rule 12(b)(6) motion, a pleading must “contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678. In considering

the motion, the court must accept well-pleaded allegations as true and must construe reasonable

inferences “in the light most favorable to the nonmoving party.” Massey v. Ojaniit, 759 F.3d

343, 347 (4th Cir. 2014). A court need not accept as true a complaint’s legal conclusions,

“unwarranted inferences, unreasonable conclusions, or arguments.” Giarratano, 521 F.3d at

302. Pro se complaints are afforded a liberal construction. Laber v. Harvey, 438 F.3d 404, 413

n.3 (4th Cir. 2006).

9 The court is dismissing in this opinion some claims that defendants neglected to address in their motion

to dismiss or on different grounds than those they raised. To the extent the court’s dismissal of any claim is

considered a sua sponte dismissal, the dismissal is pursuant to 28 U.S.C. § 1915A(b) and 42 U.S.C. 1997e( ).

10 Unless otherwise noted, the court omits internal citations, alterations, and quotation marks throughout

this opinion. See United States v. Marshall, 872 F.3d 213, 217 n.6 (4th Cir. 2017).

9

B. Generally

Before turning to defendants’ specific arguments, the court addresses some general

aspects of Ford’s response and arguments. First of all—and despite the obvious effort that Ford

has put forth into researching and collecting articles and information to support his general

positions regarding COVID-19 and its vaccines—it is well established that a plaintiff may not

amend his complaint through briefing. See S. Walk at Broadlands Homeowner s Ass n v.

OpenBand at Broadlands, LLC, 713 F.3d 175,184-85 (4th Cir. 2013). It is both inappropriate

an d unnecessary for the court to consider his affidavits to determine whether his current

complaint states a claim, so the court has not considered them.

Second, Ford often notes all of the allegations that defendants do not “deny.” For

example, he states that defendants do not deny that they “orchestrated a campaign of mandates,

punishments, retaliations, reprisals, obstructions, marginalizations, discrimination, etc. to force

injection of the BWMD ‘vaccines’ under threat, duress, and coercion...” (Pl.’s Resp. 40-41.)

Similarly, he asserts that defendants “admit” that they are acting outside of their capacity as

medical advisors, by encouraging inmates to receive the vaccine, and that they are not medical

doctors and should not be doing so. (Id. at 69.)

These arguments about denials and admissions are misplaced. No “denial” is required in

bringing a motion to dismiss. Instead, a court ruling on the motion to'dismiss must assume the

truth of the well-pleaded factual allegations of the complaint. Massey, 759 F.3d at 347. Thus,

defendants’ failure to “deny” anything in their motion to dismiss is meaningless. Likewise,

treating facts set forth as “true” for purposes of a motion to dismiss does not constitute an

11 To the extent Ford’s affidavits include facts relevant to any of the claims that the court is dismissing

without prejudice and allowing him to refile, Ford may include such facts in any amended complaint that he| chooses

to file. The court notes, however, that based on the topics of his affidavits, at least the first twenty-three affidavits

with attachments are wholly irrelevant to any of the claims the court is allowing m any amended complaint.

10

admission. See Crumb v. McDonald’s Corp., No. CV DKC 15-1719,2016 WL 6822481, at *1

(D. Md. Nov. 18, 2016) (noting same).

Third, some of Ford’s arguments or statements—like the one quoted two paragraphs

ago—misstate the facts laid out in Ford’s complaint, relying instead on his conclusions. In that

quote, Ford suggests that he or others were “forced” to receive vaccines. But his own allegations

make clear that he has refused the vaccine and no one has forced him to receive it. Thus, any

arguments based on alleged “forced” medication are untenable.

Fourth, throughout his response, Ford complains that defendants have failed to provide

affidavits to support their assertions. This argument, however, misconstrues the purpose of a

motion to dismiss, which is to test the complaint’s factual and legal validity; it is not to develop

or provide a record based on testimony and other evidence. Compare Fed. R. Civ. P. 12(b)(6)

with Fed. R. Civ. P. 56.

Fifth and finally, Ford argues that defendants’ motion to dismiss is precluded because the

court did not sua sponte dismiss his case under 28 U.S.C. § 1915A, and it thus has implicitly

ruled that his claims adequately state a claim. (Pl.’s Resp. 43, 74-75.) Ford is incorrect,

however. As other courts have recognized, “a court’s decision allowing some claims to go

forward at the initial screening stage does not insulate those claims from later review on a motion

to dismiss.” Hendrix v. Pactiv LLC, 448 F. Supp. 3d 43, 50-51 (W.D.N.Y. 2020). See also

Mendez v. FMC Facility Section, No. 19-CV-2820 (NEB/TNL), 2021 WL 4044911, at *3 (D.

Minn. Apr. 30, 2021) (collecting authority for same), report and recommendation adopted, No.

19-CV-2820 (NEB/TNL), 2021 WL 3418438 (D. Minn. Aug. 5, 2021), aff’d, No. 21-3065, 2022

WL 245541 (8th Cir. Jan. 27, 2022).

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C. Claims for Official-Capacity Damages

In their motion, defendants correctly argue—and it is well established—that plaintiff may

not recover damages from any of the defendants in their official capacities. State employees

acting in their official capacities are not “persons” for purposes of § 1983. Will v. Mich. Dep’t of

State Police, 491 U.S. 58, 71 (1989). In addition, the Eleventh Amendment, which immunizes

the states against suits for money damages brought in federal court, Bland v. Roberts, 730 F.3d

368, 389 (4th Cir. 2013), applies with equal force to suits brought against state employees in

their official capacities, Cromer v. Brown, 88 F.3d 1315,1332 (4th Cir. 1996); see also Will, 491

U.S. at 71 (“[A] suit against a state official in his or her official capacity is not a suit against the

official but rather is a suit against the official’s office. As such, it is no different from a suit

against the State itself.”). Accordingly, the court will grant the motion to dismiss all claims for

damages against all defendants in their official capacities.

D. Failure to State A Claim

Defendants also argue that Ford’s claims fail both because he has failed to allege

adequate personal involvement against any defendant and because none of his allegations state a

claim. The court discusses the claims, rather than separately addressing the extent of each

defendant’s personal involvement, and it concludes that all of Ford’s claims are subject to

dismissal.

1. Claims Under HIPAA

Ford asserts that his HIPAA rights were violated when it was revealed to others that he

was not vaccinated, but these claims fail. Most fundamentally, any HIPAA claims fail because

the statute does not provide a private cause of action. Payne v. Taslimi, 998 F.3d 648, 660 (4th

Cir.), cert, denied, 142 S. Ct. 716 (2021).

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2. Claims Under the Virginia Constitution

In many of his claims, Ford alleges violations of Article I of the Virginia Constitution,

identifying one or more of the following sections in each claim: Sections 1, 2, 3,7, 8,9,11, 12,

16, and 17. (See generally Compl. 83-99.) Ford does not discuss any of these sections

individually, nor does he explain which facts he offers in support of what claims or how any of

the facts show a violation of any individual section.

While pro se complaints are subject to a liberal construction, the court is not required to

construct claims that are not “fairly presented.” Brock v. Carroll, 107 F.3d 241, 243 (4th Cir.

1997) (Luttig, J., concurring) (noting the court does not act as an inmate’s advocate, is not

expected to construct full blown claims from sentence fragments, and does not conjure up

questions never squarely presented); Gordon v. Leeke, 574 F.2d 1147,1151 (4th Cir. 1978)

(recognizing that a district court is not expected to assume the role of advocate for a pro

se plaintiff).

Consistent with this authority, the court will not sort through more than one hundred

pages of allegations to guess at how Ford believes defendants violated a particular section of

Virginia’s state constitution. See also Walker v. Prince George s Cnty., 575 F.3d 426,429 n.

(4th Cir. 2009) (“Judges are not like pigs, hunting for truffles buried in [a party’s filings].”).

Furthermore, at least some—if not all—of these state constitutional claims are barred for

various reasons. First, any claims based on Article I, Section 8 fail because that provision

applies only to criminal prosecutions. Va. Const., Art. I § 8.

Many of his other claims fail because they are based on sections that are not self­

executing. As explained in Doe v. Rector & Visitors of George Mason Univ., 132 F. Supp. 3d

712 (E.D. Va. 2015), “[i]n order to enforce a private right of action under the Virginia

Constitution, the provision in question must be self-executing.” Id. at 728. In Doe, the court

13

concluded that Section 11 of Article 1 was “self-executingbut only with regard to deprivations

of property. Id. (collecting cases); see also Calloway v. Commonwealth of Virginia, No. 5:16CV-00081, 2017 WL 4171393, at *4 (W.D. Va. Sept. 20,2017) (holding same). Because Ford’s

due process claims do not involve the taking of property, Ford may not bring a claim under

Section 11 of Article I.

Similarly, another judge of this court has held that Section 12 (concerning freedom of

speech) is only self-executing for challenges against laws or ordinances that purportedly infringe

on free speech rights, but not other types of free speech claims. Mais v. Albemarle Cnty. School

Bd., _ F. Supp. 3d _, 2023 WL 2143471, at *5-6 (W.D. Va. Feb. 21,2023) (discussing the

issue at length). Under that reasoning, Ford has no viable claim under Section 12, either, as his

claims are not based on a law or ordinance, but on procedures and policies of a state agency. See

id.

Defendants summarily state that the other sections relied upon by Ford are not self­

executing, but are “instead, broad statements of policy and do not include any enforcement

mechanism.” (Defs.’ Mem. Support Mot. Dismiss 17.) Ford does not respond m substance to

that argument. Based on its own research, the court concludes that the issue is less clear than

defendants suggest. Cf. Mais, 2023 WL 2143471, at *5 (“[Constitutional provisions are

‘usually’ considered self-executing if they appear in the Bill of Rights or are provisions of

negative character.”); Jones v. City ofDanville, No. 4:2Q-CV-00020, 2021 WL 3713063, at 11

(W.D. Va. Aug. 20, 2021) (stating that Article I of the Virginia Constitution “is the

Commonwealth’s entire Bill of Rights”).

But other courts have held that at least some of the other sections on which Ford relies

are not self-executing. E.g., Quigley v. McCabe, No. No. 2:17CV70, 2017 WL 3821806, at *6

(E.D. Va. Aug. 30, 2017) (Section 9); Capel v. Chesapeake Sheriff’s Off, No. 2:20CV129, 2022

14

WL 571528, at *5 (E.D. Va. Feb. 18, 2022), ajf’d, No. 22-1178, 2022 WL 11752020 (4th Cir.

Oct. 20, 2022) (Sections 8-A and 9); Chandler v. Routin, No. CL02-1080, 2003 WL 23571249,

at *2 (Va. Cir. Ct. Sept. 23,2003) (Sections 1, 8, and 10). Thus, at least some of Ford’s claims

fail on this basis.

Furthermore, at least some of the federal and state constitutional claims “rise and fall

together,” including Article I, Section 12’s ffeedom-of-speech guarantee and any due process

claims under Section 11. Warning v. West Point School Bd., 480 F. Supp. 3d 711,721 (E.D. Va.

2020) (free speech and due process); Delk v. Moran, Delk v. Moran, No. 7:16CV00554,2019

WL 1370880, at *5 (W.D. Va. Mar. 26, 2019) (free speech). Accordingly, “courts may look to

federal constitutional law when deciding Virginia constitutional claims.

Warning, 480 F. Supp.

3d at 721. Thus, for the same reasons that Ford’s federal constitutional claims fail, and to the

extent the state claims are co-extensive, his state constitutional claims also fail.

Lastly, even if some of his Virginia constitutional claims survived a motion to dismiss,

the court would decline to exercise jurisdiction over them. See 28 U.S.C. § 1367(c)(3). For all

of the foregoing reasons, the court will dismiss Ford’s claims based on the Virginia Constitution.

3. Claims Under the Fifth, Ninth, and Tenth Amendments of the U.S. Constitution

Ford’s claims include alleged violations of many amendments to the U.S. Constitution,

including the Fifth Amendment, but the Fifth Amendment’s Due Process Clause applies only to

actions of the federal government—not state or local governments or officials. See Dusenbery v.

United States, 534 U.S. 161,167 (2002); see also Starbuck v. Williamsburg James CityCnty.

School Board, 28 F.4th 529, 537 (4th Cir. 2022). None of the defendants are federal officials

and the Fifth Amendment in inapplicable here. Thus, all of Ford’s claims based on the Fifth

Amendment must be dismissed.

Ford’s claims brought pursuant to the Ninth and Tenth Amendments also fail as a matter

15

of law. “The Ninth Amendment has never been recognized as independently securing any

constitutional right, for purposes of pursuing a civil rights claim.” Strandberg v. City ofHelena,

791 F.2d 744, 748 (9th Cir. 1986). See also Wohlford v. U.S. Dep ’t ofAgriculture, 842 F.2d

1293,1988 WL 24281, at *1 (4th Cir. 1988) (unpublished table decision) (citing Strandberg)-,

Evans v. Pitt Cnty. Dep’t ofSoc. Serv., 972 F. Supp. 2d 778, 797 (E.D.N.C. 2013), vacated in

part on other grounds by Evans v. Perry, 578 F. App’x 229 (4th Cir. 2014). Likewise, the Tenth

Amendment “creates no constitutional rights cognizable in a civil rights cause of action.”

Strandberg, 791 F.2d at 744. For these reasons, Ford’s Ninth and Tenth Amendment claims also

will be dismissed.

4. Claims Under the Ku Klux Klan Act of 1871

Ford’s complaint asserts claims under the Ku Klux Klan Act of 1871, a statute which

subsequently led to 42 U.S.C. §§ 1985,1986. Cf Andreadakis v. Ctr.for Disease Control &

Prevention, No. 3:22CV52 (DJN), 2022 WL 2674194, at *7 (E.D. Va. July 11,2022), appeal

docketed, No. 22-1953 (4th Cir. Sept. 12,2022) (discussing history of Act and noting that it has

been embodied in 42 U.S.C. §§ 1985 and 1986).

Based on its review of Ford’s complaint, the court concludes that he has not pled

adequate facts to allege a violation of the Ku Klux Klan Act of 1871. Ford’s complaint asserts

only a tenuous and unsupported allegation between race and religion, but this is insufficient to

state a claim under this Act. Cf id. Moreover, to state a claim under 42 U.S.C. § 1985(3), a

plaintiff must allege that the conspirators harbored “some racial, or otherwise class-based,

invidiously discriminatory animus.” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). A

person’s vaccination status, which is based on his choice as to whether to accept a vaccine,

however “coerced,” is not a “discrete, insular, and immutable characteristic!;] comparable to

16

those characterizing classes such as race, national origin, and sex.” Andreadakis, 2022 WL

2674194, at *8 (quoting Buschi v. Kirven, 775 F.2d 1240, 1258 (4th Cir. 1985)).

Ford’s complaint contains conclusory allegations of racial discrimination, but they are

unsupported by factual matter. For example, in discussing his grievances, he states that the “new

normal” policies are “racist” and “clearly marginalize [and] discriminate against.. . AfricanAmericans,” like him, although he does not explain how. (Compl. 64.) He also states that the

“new normal” violates “Juneteenth Principles” because it keeps him in a state of “civil death” or

“slavery.” (Id. at 65.)

Again, though, nowhere does he explain—with any actual factual content how the new

normal” policies discriminate against any racial group. He also asserts that defendant Hartsook

is restricting “three African-American workers” from working in the law library, but allowing

Caucasian inmates to work there. (Id. at 65-66.) But he does not allege which, if any, of the

other workers are unvaccinated. Moreover, he acknowledges that the reason he was not

permitted to work in the library was because he was not vaccinated, not because of his race.

Thus, he has failed to allege facts showing defendants conspired to violate the Ku Klux Klan Act

of 1871. These claims will be dismissed.

5. Claims Under the Americans with Disabilities Act and the Rehabilitation Act

Defendants contend that Ford’s claims fail to state a claim under the ADA because he

does not have a disability, as that term is defined in the ADA. Although defendants do not

address it, Ford also asserts a claim under Section 504 of the Rehabilitation Act.

Although there are some differences between the standards under the two acts (most

notably the causation standard, see Constantine v. Rectors & Visitors of George Mason Umv.,

411 F.3d 474, 498 n.17 (4th Cir. 2005)), they “share the same definitions of disability.” Rogers v.

Dep’t of Health & Env’t Control, 174 F.3d 431,433 (4th Cir. 1999); see also Bragdon v. Abbott,

17

524 U.S. 624, 646 (1998) (noting same). As discussed next, the court concludes that Ford has

failed to allege facts to show he has a disability under either statute.

The Fourth Circuit has explained:

Title II of the ADA provides that no qualified individual shall, “by

reason of [a] disability,” be denied the benefits of public “services,

programs, or activities” or be subject to discrimination by a public

entity. 42 U.S.C. § 12132. The term “disability” is defined by the

Act to mean “a physical or mental impairment that substantially

limits one or more major life activities,” “a record of such an

impairment,” or “being regarded as having such an impairment.” Id.

§ 12102(1) .... [T]o state a cause of action under Title II, an

individual must plausibly allege (1) that he has a disability or has

disability; (2) that he is otherwise

been regarded as having

qualified to receive the benefits provided by a public entity; and (3)

that he was denied those benefits or was otherwise discriminated

against on the basis of his disability. See Wicomico Nursing Home

v. Padilla, 910 F.3d 739, 750 (4th Cir. 2018).

Fauconier v. Clarke, 966 F.3d 265,276 (4th Cir. 2020).

Ford asserts that he has a disability in the form of a “mental impairment,” offering the

following explanation: “Plaintiffs impairment is that he is unable to suppress his good sense to

take a BWMD that will likely kill him and others. Nor would plaintiff be able to drink Jim

Jones’ cyanide simply because Jim Jones said it was Kool-Aid. And because of such way of

thinking, Plaintiff was prohibited in every way.” (Pl.’s Resp. 71-72.) Even if this could

somehow be interpreted as an “impairment,” he has not alleged or shown how it “substantially

limits one or more major life activities.” Thus, Ford does not have a qualifying mental or

physical impairment within the meaning of the ADA and Rehabilitation Act.

The court also considers whether Ford’s complaint could be construed as alleging that he

was “regarded as” having a disability. Even so construed, though, his claims still fail. Another

district court in Virginia addressed a similar claim by a county employee, who alleged that the

county’s classification of him as unvaccinated, as well as requiring him to test weekly and wear i

18

mask in order to retain his employment, violated the ADA. He alleged that he was being treated

as if he had an “impaired immune system” and “impaired respiratory system.” Id. at *2.

In dismissing the plaintiffs complaint, the Schneider court flatly rejected that he was

“regarded as having a disability,” so as to state a claim under the ADA. The court s reasoning is

equally applicable here:

Whether an employee is regarded as disabled is measured from the

“reactions and perceptions of the employer’s decisionmakers.”

Wilson v. Phoenix Specialty Mfg. Co., Inc., 513 F.3d 378, 385 (4th

Cir. 2008) (quoting Runnebaum v. NationsBank of Md., N.A., 123

F.3d 156, 172-73 (4th Cir. 1997) abrogated on other grounds by

Bragdon v. Abbott, 524 U.S. 624 (1998)). The Amended Complaint

contends that the County’s policy regarded unvaccinated individuals

‘“as if they carried [COVID-19] or ‘as if they had an impaired or

suppressed immune system that made them prone to contracting

‘[COVID-19].”’ [Dkt. No. 14] at TJ 7. This theory of liability has

been rejected by multiple courts in this circuit and around the

country. For example, in Tony Jorgenson v. Conduent Transport

Solutions, Inc., 2023 WL 1472022, at *4 (D. Md. Feb. 2, 2023), a

case involving nearly identical facts and arguments raised by

Schneider, the court concluded that it was implausible that the

employer regarded all unvaccinated employees as having COVID19. In addition, a judge in this district has held that, to the extent

requiring unvaccinated employees to test weekly suggests a belief

that they are more prone to contracting COVID-19, “possible future

exposure to COVID-19 does not constitute an impairment under the

ADA.” Hice v. Mazzella Lifting Techs., Inc., 589 F. Supp. 3d 539,

550 (E.D. Va. 2022).

The Amended Complaint contains no plausible factual allegations

to suggest that the defendant regarded Schneider as having a

physical or mental impairment. Instead, the alleged facts show that

plaintiff was subject to a generally applicable policy which required

him., as well as all other County employees, to disclose their

vaccination status and to provide evidence of weekly testing if

unvaccinated, all of which plaintiff refused to do. Plaintiff s refusal

to follow his employer’s requirement to report his vaccination status

which led the County to treat him as unvaccinated “is not the same

as believing [he] has a physical or mental impairment.” Jorgenson,

2023 WL 1472022, at *4. See Speaks v. Health Sys. Mgmt., Inc.,

2022 WL 3448649, at *5 (W.D.N.C. Aug. 17, 2022) (“Again, there

is no plausible basis to conclude that Health Systems regarded

Speaks as having a ‘physical or mental impairment.’ The Company

19

only regarded Speaks as being required—like all of its employees—

to obtain a COVID-19 vaccine or be approved for an exemption and

then ‘regarded’ her as having failed to do so by the deadline to

become vaccinated.”). For these reasons, the Amended Complaint

fails to allege a plausible claim that the County regarded plaintiff as

disabled.

Schneider v. Cnty. ofFairfax, No. 122CV871LMBWEF, 2023 WL 2333305, at *4-5 (E.D. Va.

Mar. 2,.2023), appeal docketed, No. 23-1303 (4th Cir. Mar. 21,2023) (internal footnote

collecting authority omitted).

Although Schneider arose in the employment context, the court concludes that the same

reasoning applies here, because the definition of “disability” under the statutes does not change

with the context. In short, Ford has not plausibly alleged either that he had a disability or that

defendants “regarded him” as having a disability. He therefore has not alleged sufficient facts to

state a claim under either the ADA or the Rehabilitation Act. Any such claims must be

dismissed.

6. Claims Under RLUIPA

Under RLUIPA, a plaintiff may not recover damages against defendants in either their

official or individual capacities. Sossamon v. Texas, 563 U.S. 277,288 (2011) (holding damages

are unavailable for official-capacity claims); Rendelman v. Rouse, 569 F.3d 182,184 (4th Cir.

2009) (holding individual-capacity damages are unavailable under RLUIPA when invoked as a

spending clause statute); see also Firewalker-Fields v. Lee, 58 F.4th 104, 113 (4th Cir. 2023)

(explaining that under RLUIPA, the prisoner-plaintiff could obtain only equitable relief, not

damages).

Plaintiff concedes in his response that, two days after he filed this action, defendants

changed their policy and stated that “they would no longer restrict participation to religious

programs, law library, vocations, recreation, and library to only “vaccinated prisoners.

20

(PI. s

Resp. 77-78012 Although he contends that this change in policy was a “clear admission of

guilt,” it also has the practical effect of rendering moot his RLUIPA claims, because they can

provide only injunctive relief and not damages. See Firewalker-Fields, 58 F.4th at 113-14

(explaining that prisoner’s transfer from the facility implementing the challenged policy mooted

his RLUIPA claims). Thus, Ford’s RLUIPA claims will be dismissed.

7. First Amendment Claims Based on Religion

A First Amendment free-exercise claim requires a showing that the defendant imposed a

substantial burden on the plaintiffs religious exercise. Greenhill v. Clarke, 944 F.3d 243,253

(4th Cir. 2019) (setting forth the elements of a claim alleging a violation of the Free Exercise

Clause in this context, which requires plaintiff to demonstrate that he holds a sincere religious

belief’ and that “a prison practice or policy places a substantial burden on his ability to practice

his religion”). The plaintiff bears the initial burden of establishing that the government’s actions

substantially burdened his exercise of religion. Holt v. Hobbs, 574 U.S. 352, 358 (2015).

Moreover, a prisoner must show a “conscious or intentional interference with his rights, mere

negligence is insufficient. Lovelace v. Lee, All F.3d 174, 194—95, 201-02 (4th Cir. 2006).

In addressing the First Amendment claims of prisoners, a policy or regulation is valid so

long as it is “reasonably related to legitimate penological interests.

Turner v. Safley, 482 U.S.

78, 89 (1997). This standard “affords less protection to inmates’ free exercise rights than does

RLUIPA.” Lovelace, All F.3d at 199-200- In deciding whether there is a reasonable relation

between the policy and asserted interest served by it, courts should examine:

(1) whether there is a “valid, rational connection” between the

prison regulation or action and the interest asserted by the

government, or whether this interest is “so remote as to render the

12 Defendants continued to ban visitation for some time for unvaccinated prisoners, which prevented

plaintiff from visiting with his mother before her July 2022 death and prevented him from comforting any friends or

family or being comforted by them after she had died. (PL’s Resp. 78.) Ford does not allege that this mterferes with

or substantially burdened his religion, so it does not give rise to a RLUIPA claim based on religion.

21

policy arbitrary or irrational”; (2) whether “alternative means of

exercising the right . . . remain open to prison inmates”; (3) what

impact the desired accommodation would have on security staff,

inmates, and the allocation of prison resources; and (4) whether

there exist any “obvious, easy alternatives” to the challenged

regulation or action.

Wall v. Wade, 741 F.3d 492,499 (4th Cir. 2014); Turner, 482 U.S. at 89-92.

In weighing these factors, the court must “respect the determinations of prison officials.”

United States v. Stotts, 925 F.2d 83, 86 (4th Cir. 1991). Further, the court also must avoid “the

micromanagement of prisons,” id. at 99, and instead “accord substantial deference to the

professional judgment of prison administrators.” Overton v. Bazzetta, 539 U.S. 126,132 (2003).

A plaintiff has the burden of proof under the Turner analysis to disprove the validity of the

prison regulation at issue. Id. Because plaintiff bears that burden, moreover, he also must allege

facts in his complaint sufficient to show that the policy at issue lacked a “rational relation to

legitimate penological interests.” Desper v. Clarke, 1 F.4th 236,244 (4th Cir. 2021); see also

Firewalker-Fields, 58 F.4th at 115 (noting that it is the prisoner’s burden to show that the

practice or regulation does not satisfy Turner).

Ford’s complaint fails to satisfy his burden as to any First Amendment claim. First of all,

he does not provide sufficient factual matter to establish that any defendant “imposed a

substantial burden” on his religious exercise. Other than stating that he has been unable to gather

with his religious community, he does not explain in his complaint how this inability violated his

religion or significantly burdened it.

But even if his allegations were sufficient to show a substantial burden, his claim still

fails because he cannot show that the policy here does not satisfy Turner. Defendants stated that

they were implementing the “new normal” to encourage vaccination, as part of their attempt to

control or limit the spread of COVID-19, and the facts alleged by Ford support that as the reason

22

for the limitations. That is certainly a valid penological interest. Indeed, as defendants note,

they have an obligation to try to limit the spread of dangerous diseases within VDOC facilities.

Further, limiting unvaccinated persons from attending religious services and other public

gatherings is “reasonably related” to that interest, and Ford has not alleged facts within his

personal knowledge to the contrary. He believes that he has adequate natural immunity and

should not be compelled to take what he deems a dangerous vaccine. Assuming he has adequate

natural immunity, perhaps the precise terms of the “new normal” policies are an imperfect fit

with the stated goal. But a perfect fit is not required under the First Amendment, only a

reasonable relation. And encouraging vaccination and limiting participation for programs for

those who refuse to be vaccinated are reasonably related to the stated interest. Accordingly, Ford

has failed to allege a violation of his First Amendment religious rights.13

8. Claims Asserting Retaliation Based on Exercise of First Amendment Rights

In Claim 15, Ford asserts a retaliation claim, which defendants do not expressly address

in their motion to dismiss. But upon careful review of his complaint, the court notes that he

references retaliation multiple times.

To succeed on any retaliation claim, Ford must establish that “(1) he engaged m protected

First Amendment activity, (2) the defendant took some action that adversely affected his First

Amendment rights, and (3) there was a causal relationship between his protected activity and the

defendant’s conduct.” Martin v. Dufy, 977 F.3d 294, 299 (4th Cir. 2020) (citing Martin v.

Duffy, 858 F.3d 239, 249 (4th Cir. 2017)) (alterations omitted). Notably, however, the Fourth

13 Defendants address a possible establishment clause claim that appears based on Ford’s attempts to

extent there is an establishment clause claim in these allegations, it is entirely unclear to the court what plaintiff

asserting.

23

Circuit has cautioned that courts must treat an inmate’s claim of retaliation by prison officials

“with skepticism.” Cochran v. Morris, 73 F.3d 1310,1317 (4th Cir. 1996). Thus, conclusory

allegations of retaliation are insufficient to survive dismissal. Adams v. Rice, 40 F.3d 72, 74—75

(4th Cir. 1994) (summarily dismissing retaliation claim as insufficient because it consisted

merely of conclusory allegations and no facts to show retaliatory motivation).

Most of Ford’s retaliation claims are based on many of the same facts as his other claims,

and he sometimes refers to an action or policy as “retaliation” for his refusal to be vaccinated.

For example, he describes it as retaliation that Hartsook engaged in libel, slander, and

defamation when she “told staff and other prisoners that [Ford] posed a serious infectious health

risk, which also violated his HIPAA rights.” (Compl. 72-73.) Similarly, he claims that he was

retaliated against by the denial of his grievances and by not allowing him to attend religious

services, denying him visitation, etc. because he is not vaccinated. {Id. at 81-83.) Thus, nearly

all of the alleged retaliation falls in the category of being the result of the “new normal” policies,

which were actions taken against him not because he filed complaints, but because he elected to

remain unvaccinated.

As to this type of claimed “retaliation,” then, it is more properly described as the

implementation of the policies restricting unvaccinated prisoners. The complaint in this case and

the timing of his alleged complaints and grievances about vaccination and the “new normal”

make clear that those restrictions were announced before he started complaining about being

compelled or coerced to receive the vaccine. That is, the limitations that would be in effect

under the “new normal” preceded and prompted his many complaints. Thus, those decisions pre­

date his “protected activity” and cannot support retaliation claim. Put differently, what he is

calling retaliation was not related to his engaging in protected activity such as filing grievances;

they were the natural result under the stated policies of his refusal to be vaccinated.

24

In terms of “additional retaliation,” Ford also alleges two retaliatory actions that appear

unrelated to his vaccination status. (Id. at 80-83.) First, he alleges that three times in October

2021, he was called to the law library, but then told to leave after about 45 minutes and the law

library was shut down. On one of the occasions, he was told the server was down. This resulted

in him not being able to do any tasks or research on those occasions. (Compl. 80-81.)

Second, he alleges that someone changed his class level (which determines the rate at

which he earns good-time credit) from a 1 to a 2 and changed his release date. He states that he

is properly a Class 1. (Id. at 81.)

Prisoners have a “First Amendment right to be free from retaliation for filing a

grievance.” Booker v. S.C. Dep’t ofCorr., 855 F.3d 533, 541 (4th Cir. 2017). Thus, for

decisions and actions that were made or occurred after he began complaining which are the

two types of retaliation described above—the court must consider whether the adverse action

against him is one that “would likely deter a person of ordinary firmness from the exercise of

First Amendment rights.” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d

474, 500 (4th Cir. 2005).

As to his claim that three times in one month, he was called to the law library to research

but then sent away, the court concludes that this is not a sufficiently adverse action to support a

retaliation claim. He states that because of his fear of “further retribution,” he has—“for the

most part”—stopped filing complaints and grievances. (Id. at 82.) But the test is not a

subjective one. Instead, to determine whether an action is sufficient to chill First Amendment

expression, the court must ask whether an objective person of “ordinary firmness would be

chilled in his speech by defendant’s conduct. Constantine, 411 F.3d at 500.

As to the law library incidents, courts have held that similar minor inconveniences and

minor property losses are generally insufficient to support a retaliation claim. Burgos v. Canino,

25

358 F. App’x 302, 307 (3d Cir. 2009) (explaining that “temporary inconveniences” do not rise to

the level of an adverse action). See also, e.g., Zaire v. Coryer, 204 F. App’x 948, 949 (2d Cir.

2006) (holding that confiscation of plaintiffs towel was de minimis, and not a sufficiently

adverse action to support a retaliation claim); Ballance v. Angelone, 7:01CV00410,2002 WL

32074716, at *2 (W.D. Va. May 2,2002), aff’d, 46 F. App’x 223 (4th Cir. 2002) (same as to

confiscation of 800 photographs and a pair of headphones); Miller v. Coning, No. CV 11-377LPS-SRF, 2014 WL 808023, at *12-13 (D. Del. Feb. 28, 2014), report and recommendation

adopted, No. 11-0377-LPS, 2014 WL 3896605 (D. Del. Aug. 7,2014) (same as to all of the

following: (1) defendant’s filing of an incident report without any related disciplinary action; (2)

multiple cell shakedowns; (3) verbal threats, staring at plaintiff with “grit,” and “deliberately

shouldering him”). Like the actions in these other cases, Ford’s being called to the law library

on three occasions and then being sent back and not being permitted to research do not rise to the

level of an adverse action sufficient to support a retaliation claim. This claim also fails because

Ford does not allege who sent him away from the library, as required to state a valid claim

against any particular defendant.

Turning next to the change in Ford’s class level and release date, it is a jury issue as to

whether this would satisfy the “adverse action” requirement. Even so, this retaliation claim fails

because the facts in his complaint do not plausibly state a claim against any defendant. First, it is

not even clear from the complaint who took this action. Ford first alleges that defendant Walker

was responsible for changes to his “class level.” He later alleges that he was told that Hartsook

made the change for an “unknown reason,” although he sets forth no facts based on personal

knowledge to show that is true. {Id. at 82.) For a particular defendant to be held liable for

retaliation, he or she must have taken an adverse action against him, and his current allegations

do not make clear who reclassified him, when, or for what stated reasons.

26

Further—and independently dispositive of his claim—Ford has not presented my facts to

show that the action was in retaliation for his filing of complaints or grievances, as required to

establish the third element of a retaliation claim. He does not identify any statements by any

defendants to that effect, he has not set forth dates sufficient to show any temporal connection,

and he has not pled any other facts to suggest that any defendant’s motive was retaliation. His

own belief that the action was retaliatory is a mere conclusory allegation of retaliation and is

insufficient to survive dismissal. Adams, 40 F.3d at 74—75 (summarily dismissing retaliation

claim as insufficient because it consisted merely of conclusory allegations and no facts to show

retaliatory motivation).

For all of these reasons, the court will dismiss his retaliation claims. Because he may be

able to state a claim, with additional factual matter, based on the change to his class level and

release date, the court will dismiss that claim without prejudice.

9. Eighth Amendment Conditions-of-Confinement Claims

Ford’s Eighth Amendment claims also fail. The court construes these claims as alleging

that defendants were deliberately indifferent to dangerous conditions that existed at CWCC, in

violation of his Eighth Amendment rights, i.e., as conditions-of-confinement claims. It is not

clear to the court precisely what his Eighth Amendment claims are based upon, but the court sees

three possible bases.

First, Ford appears to allege that defendants did not do—or are not doing enough to

prevent the spread of COVID, which led to him contracting the infection. In conjunction with

this, the court will consider his allegations that a counselor came to his dorm in December 2021

and shook hands with people. Within a week of that incident, there was a COVID outbreak in

the dorm, which he attributes to that counselor’s actions.

27

Second, he alleges that the policies associated with the “new normal,” which led to his

deprivation of access to the law library, work, and visitation, constituted cruel and unusual

punishment.

Third, he alleges that the conditions after implementation of the new normal—which

involved refusing to turn on the ventilation system, limiting outdoor time to about one hour per

day, and requiring masking—violate his Eighth Amendment rights. As to the third, he also

contends that the outdoor air is crucial because CWCC prisoners live in a “cramped dorm with

80 people (plus staff) in the room, with bunk beds” and limited space between bunks. (Compl.

83.) He also complains that defendants “continue to press masking policies, which he asserts

cause “harm and no good” and do not “prevent infection.” (Id. at 85-86.)

The Eighth Amendment protects prisoners from cruel and unusual living conditions.

Rhodes v. Chapman, 452 U.S. 337, 347 (1981). To adequately allege a conditions-ofconfinement claim, a prisoner must set forth facts showing that: (1) objectively, the deprivation

was sufficiently serious, in that the challenged, official acts caused denial of the minimal

civilized measure of life’s necessities”; and (2) subjectively, the defendant prison officials acted

with “deliberate indifference to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834

(1994) (citations omitted). The objective prong requires the prisoner to “produce evidence of a

senous or significant physical or emotional injury resulting from the challenged conditions” or

“demonstrate a substantial risk of such serious harm.” See Shakka v. Smith, 71 F.3d 162, 166

(4th Cir. 1995). To satisfy the second prong, a plaintiff must allege that a defendant was actually

aware of a serious risk of significant harm to the prisoner and disregarded it. Shakka, 71 F.3d at

166. Deliberate indifference is an “exacting standard.” Jackson v. Lightsey, 775 F.3d 170, 178

(4th Cir. 2014).

Ford’s claims do not satisfy this high standard. Based on Ford’s own allegations, most of

28

the conditions about which he comp 1 aints—in eluding disallowing movement of prisoners like

him who had not been vaccinated, and limits on use of ventilation and outside recreation paired

with masking—were implemented to prevent the spread of COVID-19 through the prison

population. His allegations, accepted as true, show that defendants were aware of a risk of

substantial harm from COVID-19, and took steps to reduce that harm. They did not ignore it.

a. Conditions that led to Ford contracting COVID-19

Ford points to a number of things that he alleges may have contributed to his contracting

COVID-19, including mingling of prisoners and staff, and the provision of flu shots to other

inmates, and later (in the period “after” the new normal), a counselor shaking hands with

numerous prisoners in his dorm, leading to a COVID outbreak, although he did not test positive

as a result.

As this court has addressed in other cases brought by VDOC prisoners (and others)

during the pandemic, the potential spread of COVID-19 satisfies the objective element of an

Eighth Amendment claim. Zellers v. Northam, No. 7:21-CV-393, 2022 WL 3711892, at *7

(W.D. Va. Aug. 29, 2022); Ross v. Russell, No. No. 7:20-CV-000774, 2022 WL 767093, at *10

(W.D. Va. Mar. 14, 2022).

As this court explained in both Ross and Zellers, though, the extensive policies VDOC

an d other jail facilities implemented to combat COVID-19 constitute substantial evidence that

prison officials (and here, the governors) were not deliberately indifferent, even when those

policies were sometimes not followed or enforced. Ross, 2022 WL 767093, at *11-13

(collecting authority and dismissing Eighth Amendment claim); Zellers v. Northam, No. 7.21CV-393, 2022 WL 3711892, at *9-11 (W.D. Va. Aug. 29, 2022) (same and dismissing claims

gainst Northam, Clarke, and the warden at plaintiffs facility where plaintiff alleged that the

29

measures taken to combat COVID-19 were insufficient and that they could have implemented

better policies).

The court adopts and incorporates its reasoning in those cases here. Based on that

reasoning, Ford’s claim that any defendants were deliberately indifferent to the risk of COVID19 posed to him and other CWCC inmates fails. Additionally, for the reasons explained in those

cases, even occasional lapses in the policies (such as the counselor shaking hands with many

people in the dorm, assuming that was not permitted in December 2021), does not constitute

deliberate indifference absent additional allegations. See Ross, 2022 WL 767093, at *13—14,

Zellers, 2022 WL 3711892, at *10.

Further, as set forth in both of those cases, the individuals named are entitled to qualified

immunity as to any individual-capacity claims for damages. See Ross, 2022 WL 767093, at 1415; Zellers, 2022 WL 3711892, at * 11.

b. Policies encouraging vaccination and “new normal” policies and procedures

As to any Eighth Amendment challenges to the “new normal” policies, the court notes

first that nothing in Ford’s complaint supports his assertion that he is being compelled or

mandated to receive a COVID vaccine. There may be incentives to receive one, in terms of an

ability to attend programs or obtain prison employment, but no one is requiring him to get a

vaccine. Put differently, he is not being forcibly medicated—he has not received the vaccine and

is not being required to. Thus, he is not subject to a substantial risk of serious harm from the

vaccines by any act of defendants.

Moreover, although he clearly disagrees with VDOC’s policy, disputes the effectiveness

of COVID vaccines, and presents his “research” on that issue, contrary opinions certainly exist.

Indeed, government agencies have recommended vaccines for COVID-19 and continue to do so.

See “Vaccines for COVID-19,” available at httns ://www.cdc. gov/coronavirus/201930

ncov/vaccines/index.html (last visited March 24, 2023) (“COVID-19 vaccines are safe, effective,

and free.”); Virginia Department of Health, “Vaccination FAQ,” available at

https://www.vdh.virginia.gov/covid-19-faQ/vaccination/ (last visited March 24, 2023).

Put differently, where defendants attempt to mitigate a risk, even if their attempts are illadvised, unsuccessful, or negligently performed, they are not being deliberately indifferent

toward that risk. Indeed, it is obvious from plaintiffs allegations that VDOC officials disagreed

with plaintiffs opinions about the dangers of the vaccine. As such, they could not have

subjectively believed that encouraging inmates to obtain the vaccine was likely to cause harm, so

as to show deliberate indifference. In short, defendants’ efforts to vaccinate the inmate

population through policies designed to encourage inmates to receive them, does not meet the

high standard for deliberate indifference, despite Ford’s beliefs about the dangers of COVID-19

vaccines.

c. “Conditions” related to ventilation and time outside

As for the conditions about which Ford complains as still occurring as of the filing of his

complaint, the court concludes that he has not shown that they satisfy the objective component of

an Eighth Amendment claim. As he describes it, the ventilation system is off because CWCC

officials do not want COVID-19 to spread throughout the facility through the ventilation. It is

unclear what the reasons are for the limited outside recreation.

Regardless of the reasons for these policies, neither a lack of ventilation, without more,

nor a limitation to one outside hour of recreation per day to inmates living in a dorm-style

housing unit, caused denial of “the minimal civilized measure of life’s necessities.” See Farmer,

511 U.S. at 834. Other cases have concluded that similar—and far worse

conditions do not

satisfy the objective component of an Eighth Amendment claim. See, e.g., Beverati v.

Smith, 120 F.3d 500, 504 (4th Cir. 1997) (finding that segregation inmates did not

31

state Eighth Amendment claim when they complained of being housed for six months in a unit

with no outside recreation, no clean clothes, inadequate food, and cells infested with vermin and

smeared with urine and feces); Wishon v. Gammon, 978 F.2d 446,449 (8th Cir. 1992) (holding

45 minutes of outdoor exercise per week did not state an Eighth Amendment claim); Bailey v.

Shillinger, 828 F.2d 651, 653 (10th Cir. 1987) (same as to one hour of exercise per week

outdoors).

Furthermore, although Ford’s complaint contains conclusory statements of unspecified

“trauma” from the entirety of what has occurred to him since the “new normal” was

implemented, (Compl. 86), the harms he alleges as a result of either a lack of ventilation or a

lack of adequate outside recreation time and outside “air” do not appear to be harms that

occurred to him, but general harms that could occur. (Id. at 85 (explaining they have led to an

increase in COVID circulation, constantly breathing contaminated air, other sicknesses, weight

gain, increase in blood pressure and stress, as well as mold”). But he does not say that he

experienced any of these symptoms. He thus also fails to plausibly allege the harm or grave

risk of harm” sufficient to allege plausibly the second element of his Eighth Amendment claim.

For all of the foregoing reasons, Ford’s complaint fails to state an Eighth Amendment

claim.

10. Fourteenth Amendment Claims

The court construes Ford’s complaint as also alleging violations of both the Due Process

Clause and Equal Protection Clause of the Fourteenth Amendment,

a. Due Process Clause

The alleged violations of the Due Process Clause are based on several different acts by

defendants or others. First of all, Ford’s claim challenging his conviction and sentence as

obtained in violation of due process (Claim 6) is not properly brought in an action pursuant to 42

32

U.S.C. § 1983. Such claims by state prisoners must be brought instead as a petition for writ of

habeas corpus, after first exhausting state-court remedies. Thus, Claim 6 is dismissed because it

is not properly asserted here.

Other claims in which he appears to allege due process violations are Claims 1, 3,4, 5,

10, and 13 (based on the incentives to vaccinate, including the limitations on the movement of

unvaccinated prisoners and their ability to attend programs) and Claim 7 (based on the denial or

improper handling of his grievances). None of these claims entitle him to relief.

“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).

First, as to Ford’s claim (in Claim 7) that his due process rights were denied based on

defendants’ responses to his grievances, interference with his grievance rights, or violation of the

grievance procedures, such allegations do not state a constitutional claim. This is so because

“inmates have no constitutional entitlement or due process interest in access to a grievance

procedure.” Booker v. S.C. Dep 7 ofCorr., 855 F.3d 533, 541 (4th Cir. 2017); see also Adams v.

Rice, 40 F.3d 72, 75 (4th Cir. 1994) (“The Constitution creates no entitlement to grievance

procedures or access to any such procedure voluntarily established by a state.”). Thus, the

Fourteenth Amendment claim in Claim 7 must be dismissed.

Similarly, to the extent Ford is complaining that he has been denied prison employment,

he has not identified a constitutionally protected liberty or property interest, because prisoners

have no liberty or property interest in employment while in prison. Fletcher v. LeFevers, No.

7:21CV00231, 2021 WL 2953678, at *2 (W.D. Va. July 14, 2021); see also Robles v.

Sturdinvant, No. 7:14-cv-00070, 2014 WL 4853409, at *1 (W.D. Va. Mar. 27, 2014) (“[Ijnmates

have no independent constitutional right to a prison job and as such, prison officials may

33

generally terminate an inmate from a particular prison job for any reason without offending

federal due process principles.”);

His other due process claims (which allege that he was deprived of or restricted from

certain privileges, such as visitation privileges, researching at the law library, and participating in

certain VDOC programming) likewise fail to identify a protected liberty interest. As the

Supreme Court explained in Sandin v. Conner, 515 U.S. 472,485 (1995), mere limitations on

privileges, property, and activities resulting from administrative segregation fall[] within the

expected perimeters of the sentence imposed by a court of law” and do not implicate a liberty

interest. See also Gaston v. Taylor, 946 F.2d 340, 343 (4th Cir. 1991) (“[Changes in a

prisoners’ [sic] location, variations of daily routine, changes in conditions of confinement

and the denial of privileges” do not trigger constitutional due process protections.); Dunfordv.

McPeak, No. CIVA 7:08CV00018,2008 WL 204481, at *2 (W.D. Va. Jan. 24, 2008)

(concluding loss of visitation privileges did not trigger due process protections and collecting

authority). Thus, the “new normal” policies did not trigger Ford’s due process rights,

b. Equal Protection Clause

To the extent that any of his 14th Amendment claims are more appropriately construed as

Equal Protection claims, those claims likewise fail.14 To prove an equal protection claim, a

litigant “must first demonstrate that he has been treated differently from others with whom he is

similarly situated.” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (quoting Morrison v.

14 Ford’s complaint makes a passing reference to an allegation that unvaccinated laundry workers were

permitted to work, but he was not permitted to work in the library because he did not receive the vaccine, w ic e

calls discriminatory. (Compl. 68.) This does not appear in the section where he describes his claims, however and

the court does not treat it as a separate Equal Protection claim. In any event, Ford does not provide sufficient facts

to state a claim on this issue. He does not provide further detail, nor does he explain who made the decision, so as to

state a claim against any particular defendant. It also is unclear to the court whether he is similarly situated m a

relevant respects to those laundry workers, who work in a different setting. For example, he has not set forth any

facts about the level of contact library employees have with others relative to laundry workers, or other factual

matter to show they are similarly situated in all relevant respects. Thus, even if Ford had intended this to be a claim,

his failure to allege sufficient factual matter to state a plausible claim would require its dismissal.

34

Garraghty, 239 F.3d 648,654 (4th Cir. 2001)). Two groups of persons are “similarly situated”

only if they “are similar in all” relevant respects. Van Der Linde Housing, Inc. v. Rivanna Solid

Waste Auth., 507 F.3d 290,293 (4th Cir. 2007). Once such a showing is made, then the court

will determine “whether the disparity in treatment can be justified under the requisite level of

scrutiny.” Veney, 293 F.3d at 731 (quoting Morrison, 239 F.3d at 654).

Notably, vaccinated and unvaccinated prisoners are not similarly situated. As another

judge of this court recently explained, in dismissing a claim that treating vaccinated and

unvaccinated workers differently violated the Equal Protection Clause,

“[A] classification neither involving fundamental rights nor

proceeding along suspect lines . . . cannot run afoul of the Equal

Protection Clause if there is a rational relationship between disparity

of treatment and some legitimate governmental purpose. Cent.

State Univ. v. Am. Ass ’n of Univ. Professors, Cent. State Univ.

Chapter, 526 U.S. 124, 127-28 (1999) (citations omitted). Courts

within the Fourth Circuit have found that policies treating

unvaccinated individuals differently than those vaccinated do not

target a suspect class. Bauer v. Summey, 568 F. Supp. 3d 573, 597

(D.S.C. 2021) (“Although the Policies treat unvaccinated

individuals differently than those vaccinated by only subjecting the

former to potential termination, such differential treatment does not

target a suspect class.”); McArthur v. Brabrand, No. 1:21-cv-1435,

_ F. Supp. 3d_, 2022 WL 2528263, at *7 (E.D. Va. July 27,2022)

(“[Heightened review is not justified because the quarantine policy

... is a vaccination-based classification.”) (citing cases holding that

unvaccinated people do not constitute a suspect class).

Antunes v. Rector & Visitors of Univ. ofVa., No. 3:21-CV-00042, 2022 WL 4213031, at *6

(W.D. Va. Sept. 12,2022).

The Antunes court upheld the policy at issue there, which terminated employees who

refused to be vaccinated but allowed vaccinated individuals to remain employed. It reasoned

that the policy bore “a rational relationship to some legitimate end,” because it was “related to

35

the government interest in preventing COVID-19 from spreading amongst” its employees who

were healthcare workers—and patients. Id. The same is true here.

Lastly, to the extent Ford is asserting an Equal Protection claim based on his race, he

alleges no facts to support any assertion that the “new normal” policies were racially

discriminatory, as discussed in addressing his claims under the Ku Klux Klan Act of 1871.

For the foregoing reasons, all of Ford’s Fourteenth Amendment claims must be dismissed.

11. Sixth Amendment Claims and Access-to-Courts Claims

In several of his claims, Ford references the Sixth Amendment, including when

discussing limitations on his access to the law library. In general, the Sixth Amendment which

ensures certain rights to criminal defendants, including a right to counsel is not even applicable

to most of Ford’s allegations. Instead, Ford references, in general terms, his desire to seek a

pardon from the governor and some type of habeas corpus proceedings, but cites to nothing to

show there is a wholesale right to counsel to pursue either. Thus, it appears that most of his

Sixth Amendment claim fails on that basis alone. See Duffin v. Reynolds, No. CA 1:11 -1145TMC-SVH, 2011 WL 5869614, at *1 & n.2 (D.S.C. Oct. 25, 2011) (rejecting access to the courts

claim based on the Sixth Amendment where plaintiff sought to prosecute a civil case and noting

that that “[b]y its express terms, the Sixth Amendment’s right to counsel applies only to criminal

proceedings”), report and recommendation adopted, No. CA 1:11-1145-TMC, 2011 WL

5869779 (D.S.C. Nov. 22,2011).

But the Sixth Amendment has been recognized as a source of an access-to-courts claim

derived from the right to counsel, as has the First Amendment, as part of the right to petition for

grievances. Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 (1983) (“[T]he right of

access to the courts is an aspect of the First Amendment right to petition the Government for

redress of grievances”); Kane v. Espitia, 546 U.S. 9, 10 (2005) (noting that access to a prison law

36

library may derive from the Sixth Amendment right to counsel).

Ford has not identified any criminal proceeding in which he had a right to counsel and

that right was somehow infringed so as to state a Sixth Amendment claim. Nonetheless, because

the standard for analyzing the claim is the same under either amendment, the court considers his

access-to-courts claim under both the First Amendment and Sixth Amendment. All other Sixth

Amendment claims will be dismissed.

A plaintiffs right of access to the court “is ancillary to the underlying claim, without

which a plaintiff cannot have suffered injury by being shut out of court. Christopher v.

Harbury, 536 U.S. 403,415 (2002). Thus, in order to state a constitutional claim of denial of

access to the courts, a plaintiff must allege facts showing that the challenged action has actually

“hindered his efforts to pursue” a nonffivolous legal claim. Lewis v. Casey, 518 U.S. 343, 351

(1996).

Specifically, the plaintiff must identify in his complaint a “nonffivolous,” “arguable”

legal claim, along with the potential remedy that claim sought to recover, that was lost as a result

of the defendant’s alleged interference with the plaintiff s right of access. Christopher, 536 U.S.

at 415-16 (quoting Casey, 518 U.S. at 353). Put differently, the cause of action in the underlying

action, “whether anticipated or lost, is an element that must be described in the complaint, just as

much as allegations must describe the official acts frustrating the litigation. Id. at 415. This is

because the provision of legal services or legal libraries in prisons are not ends in themselves,

but only the means for ensuring a reasonably adequate opportunity to present claimed violations

of fundamental constitutional rights to the courts.” Lewis, 518 U.S. at 351

Ford claims that the denial of access to the law library for six months preceding the filing

of his complaint caused him to be “unable to research, prepare, or present his habeas corpus

petition, his petition for pardon, and this petition until now.” (Compl. 82-83.) He also states

37

that he has “been unable to research and prosecute his legal issues” and has missed unspecified

deadlines and opportunities, including seeking a pardon by the outgoing governor. Others

received pardons, but he does not believe he would receive one from the current governor.

Although Ford states his seeking of a pardon was delayed, he does not explain any

“nonfrivolous” basis on which he was seeking a pardon, nor does he explain why he believed he

could receive one from the former governor but not the current governor. Similarly, he alleges

that he missed deadlines in habeas corpus proceedings, but he does not identify whether those

were state or federal habeas proceedings, what “nonfrivolous,” “arguable” legal claim he was

asserting, or even that any habeas corpus petition was dismissed or denied because it was

untimely. Because he has failed to allege any effect on a nonfrivolous claim as a result of his

difficulties in accessing the law library, his access-to-courts claims must be dismissed. The court

will dismiss them without prejudice, however, because he may be able to add sufficient factual

matter to state a claim.

12. State Law Claims of Negligence, Defamation, Slander, and Libel

In light of the court’s dismissal of plaintiffs federal claims, it will decline to exercise

jurisdiction over any state-law claims, such as all of his state-law tort claims . See 28 U.S.C.

§ 1367(c)(3).

III. CONCLUSION

For the foregoing reasons, Ford’s complaint fails to state a claim against any of the

defendants and must be dismissed. Because it is possible that Ford may be able to state a valid

retaliation claim about his class level/release date and as to his access-to-courts claim under the

First Amendment, the court will allow him to file an amended complaint asserting those claims

and restating any state-law tort claims, should he choose to do so.

38

The remaining motions in the case, including Ford’s motion to expand or supplement the

record, will be denied as moot.

An appropriate order will be entered.

Entered: March 31, 2023.

Elizabeth K. Dillon

United States District Judge

39

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

RAYMOND A. FORD, JR.,

Plaintiff,

v.

RALPH NORTHAM, et al.,

Defendants.

)

)

)

)

)

)

)

Civil Action No. 7:22-cv-00122

By: Elizabeth Dillon

United States District Judge

ORDER

In accordance with the memorandum opinion entered this day, it is hereby ORDERED as

follows:

1. Defendants’ motion to dismiss (Dkt. No. 17) is GRANTED, and plaintiffs complaint

is hereby DISMISSED.

2. Plaintiffs state-law claims are dismissed without prejudice. As to the federal claims,

they are dismissed for failure to state a claim. The claims are dismissed with

prejudice, except for the following two claims, which are dismissed without

prejudice: (a) his retaliation claim based on the changing of his class level and

changing of his release date; and (b) his access-to-courts claim, based on his inability

to visit the law library or limited access to the law library and legal research.

3. All other motions, including Ford’s motion to expand the record (Dkt. No. 28), are

DENIED AS MOOT.

4. If Ford believes he can remedy the deficiencies noted by the court and, if he so

chooses, he may file a motion to reopen the case, along with an amended complaint,

within 30 days of the entry of this order. His motion to reopen shall not exceed five

pages. Any amended complaint may include ONLY the claims dismissed without

prejudice as set forth in paragraph 2 of this order, and may not include any of the

claims dismissed with prejudice. In particular, Ford’s complaint should not include

background information regarding COVID-19 or COVID-19 vaccines, which are no

longer part of this case. Any amended complaint he files must be a new pleading,

complete in all respects, which stands by itself without reference to any earlier filedcomplaint, documents, or attachments. Ford’s amended complaint must list his

claims separately and provide specific facts to support each claim against any

defendant he includes. Further, Ford’s complaint shall be limited to twenty-five

pages, which should be ample space to bring the limited claims permitted. If he

believes he needs additional pages to assert his claims, he may request them. If Ford

fails to comply with all of the requirements set forth in this paragraph and the

court’s directions, then any motion to amend may be denied and any amended

complaint may be dismissed.

5. Alternatively, Ford may file a notice declining to amend his complaint, in which case

the court will enter final judgment, and then Ford may file a notice of appeal from

this order, if he so chooses.

6. The Clerk is DIRECTED to STRIKE this case from the active docket of the court.

The clerk shall send the parties copies of this order and the accompanying memorandum

opinion, and also send to Ford a blank complaint form he may use to file an amended complaint.

Entered: March 31, 2023.

Elizabeth K. Dillon

United States District Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

RAYMOND A. FORD, JR.,

Plaintiff,

v.

RALPH NORTHAM, et al.,

Defendants.

)

)

)

)

)

)

)

Civil Action No. 7:22-cv-00122

By: Elizabeth Dillon

United States District Judge

FINAL JUDGMENT

Plaintiff Raymond A. Ford, Jr., a prisoner in the custody of the Virginia Department of

Corrections (“VDOC”) and proceeding pro se, filed this action pursuant to 42 U.S.C. § 1983. By

memorandum opinion and order entered March 31,2023, the court granted the defendants’

motion to dismiss. (Dkt. Nos. 29, 30.) It dismissed most of Ford’s claims with prejudice, but

dismissed two without prejudice. As to those two claims, the court gave Ford the option to file a

motion to reopen the case, along with an amended complaint, within 30 days. (Order 1-2, Dkt.

No. 30.) The order further stated that “[alternatively, Ford may file a notice declining to amend

his complaint, in which case the court will enter final judgment, and then Ford may file a notice

of appeal from this order, if he so chooses.” (Id. at 2.)

Pursuant to Britt v. DeJoy, 45 F. 4th 790 (4th Cir. 2022), the proper procedure if Ford

wanted to stand on his original complaint was for him to advise that he did not want to amend

and to request a final order. Instead of doing so, Ford filed a notice of appeal. Because his

notice of appeal reflects that he wants to appeal, rather than amend, the court hereby ENTERS

this final judgment, pursuant to Federal Rule of Civil Procedure 58, dismissing his claims

without leave to amend.

Ford is further advised that his prior notice of appeal is from a non-final order, as

explained in Britt. See Johnson v. Cuomo, No. 22-1156, 2022 WL 9874183, at *1 (4th Cir. Oct.

17, 2022) (dismissing appeal from order that granted leave to amend); United States v. Jacobs,

No. 22-6014, 2022 WL 4481478, at *1 (4th Cir. 2022) (same). If Ford wishes to appeal from

this final judgment, which dismisses all of his claims pursuant to the reasoning of the court’s

March 31, 2023 memorandum opinion, then he should file a new notice of appeal within thirty

days. See Fed. R. App. P. 4(a)(1)(A).

Entered: April 26,2023.

Elizabeth K. Dillon

United States District Judge

2

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

RAYMOND A. FORD, JR.,

Plaintiff,

v.

RALPH NORTHAM, et al.,

Defendants.

)

)

)

)

)

)

)

Civil Action No. 7:22-cv-00122

By: Elizabeth Dillon

United States District Judge

FINAL JUDGMENT

Plaintiff Raymond A. Ford, Jr., a prisoner in the custody of the Virginia Department of

Corrections (“VDOC”) and proceeding pro se, filed this action pursuant to 42 U.S.C. § 1983. By

memorandum opinion and order entered March 31,2023, the court granted the defendants’

motion to dismiss. (Dkt. Nos. 29, 30.) It dismissed most of Ford’s claims with prejudice, but

dismissed two without prejudice. As to those two claims, the court gave Ford the option to file a

motion to reopen the case, along with an amended complaint, within 30 days. (Order 1-2, Dkt.

No. 30.) The order further stated that “[alternatively, Ford may file a notice declining to amend

his complaint, in which case the court will enter final judgment, and then Ford may file a notice

of appeal from this order, if he so chooses.” (Id. at 2.)

Pursuant to Britt v. DeJoy, 45 F. 4th 790 (4th Cir. 2022), the proper procedure if Ford

wanted to stand on his original complaint was for him to advise that he did not want to amend

and to request a final order. Instead of doing so, Ford filed a notice of appeal. Because his

notice of appeal reflects that he wants to appeal, rather than amend, the court hereby ENTERS

this final judgment, pursuant to Federal Rule of Civil Procedure 58, dismissing his claims

without leave to amend.

Ford is further advised that his prior notice of appeal is from a non-final order, as

explained in Britt. See Johnson v. Cuomo, No. 22-1156, 2022 WL 9874183, at *1 (4th Cir. Oct.

17, 2022) (dismissing appeal from order that granted leave to amend); United States v. Jacobs,

No. 22-6014, 2022 WL 4481478, at *1 (4th Cir. 2022) (same). If Ford wishes to appeal from

this final judgment, which dismisses all of his claims pursuant to the reasoning of the court’s

March 31, 2023 memorandum opinion, then he should file a new notice of appeal within thirty

days. See Fed. R. App. P. 4(a)(1)(A).

Entered: April 26,2023.

Elizabeth K. Dillon

United States District Judge

2