Mills v. Holmes, 1:13cv520.

• Decision Date: 24 March 2015
• Docket Number: No. 1:13cv520.,1:13cv520.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Barry W. MILLS, Plaintiff, v. Dennis L. HOLMES, et al., Defendants.

95 F.Supp.3d 924

Barry W. MILLS, Plaintiff

v.Dennis L. HOLMES, et al., Defendants.

No. 1:13cv520.

United States District Court, E.D. Virginia, Alexandria Division.

Signed March 24, 2015.

Barry W. Mills, Pocahontas, VA, pro se.

Kate Elizabeth Dwyre, Office of the Attorney General, Richmond, VA, for Defendant.

MEMORANDUM OPINION

T.S. ELLIS, III, District Judge.

Barry W. Mills, a Virginia inmate proceeding pro se, has filed this civil rights action, pursuant to 42 U.S.C. § 1983, alleging that defendants (i) Dennis L. Holmes, Unit Manager at Deep Meadow Correctional Center (“Deep Meadow”), (ii) Major George E. Pierotti, Chief of Security at Deep Meadow, (iii) Harris Diggs, Jr., Warden of Deep Meadow, and (iv) L. Mercado, Counselor at Deep Meadow, violated plaintiff's Fourteenth Amendment Due Process rights by failing to give him notice and a proper hearing before reducing his Good Conduct Allowance (“GCA”) Class Level from I to III. This reduction in Class Level means that plaintiff now earns GCA at one third the rate he previously enjoyed. Each defendant is sued in his official and individual capacities. On August 28, 2013, defendants filed a motion for summary judgment, to which plaintiff filed a response. (Dkt. 20, 27). The defendants' motion was denied on the ground that there existed a material dispute of fact as to whether plaintiff had exhausted his administrative remedies. Mills v. Holmes, 1:13cv520 (E.D.Va. Feb. 20, 2014) (Memorandum Opinion and Order) (Dkt. 31). Thereafter, on March 20, 2014, defendants filed a renewed motion for summary judgment, to which plaintiff also filed a response. (Dkt. 33, 36).

Plaintiff's § 1983 claim and defendants' motion for summary judgment raise the following questions:

(i) Whether plaintiff's claim is cognizable under § 1983 or whether it must be brought as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 ;

(ii) Whether plaintiff's claim can be construed and resolved as a § 2254 habeas petition or whether it must be dismissed for procedural infirmities; and

(iii) Whether plaintiff has a liberty interest in his GCA Class Level that allows him to state a claim for having been deprived of that interest without the procedural due process guaranteed by the Fourteenth Amendment.

Consideration of these questions as well as review of the renewed motion for summary judgment and supporting memorandum reveals that defendants' motion must be granted.

I.

Plaintiff alleges that defendants violated his Fourteenth Amendment Due Process rights by reducing his GCA earning level from Class Level I to Class Level III without giving him notice or a hearing as required by Virginia Department of Corrections Operating Procedure (“VDOC Op. Proc”) 830.1. The pertinent facts, insofar as they are reflected in the current record, may be succinctly stated.

On December 7, 2012, plaintiff arrived at Deep Meadow from Dillwyn Correctional Center (“Dillwyn”), where he had been in the segregation unit. See Plaintiff's Affidavit in Opposition to Defendants' Motion for Summary Judgment (“Pl.'s Aff.”) (Dkt. 27–1) ¶ 2. At that time, plaintiff was in GCA Class Level I. See Compl. at 4. Inmates in Class Level I earn 30 days of GCA for every thirty days served. VDOC Op. Proc. 830.3(VII) (C). Inmates in Class Level III earn just ten days of GCA for every thirty days served. Id. An inmate's GCA Class Level affects his sentence duration because earned GCA credits apply against an inmate's mandatory and discretionary parole dates. Id.

As noted, before being transferred to Deep Meadow, plaintiff was in GCA Class Level I. Plaintiff contends that defendant Holmes reduced this to Class Level III when plaintiff arrived at Deep Meadow on December 7, 2012 without providing plaintiff the “Formal Due Process Hearing” required by VDOC Op. Proc. 830.1. Id. (stating that “[a] formal due process hearing is required when an offender ... faces the possibility of ... reduction in good time earning level outside the Annual Review Cycle”). Plaintiff allegedly did not learn that his GCA Earning Level had changed until January 1, 2013, when he realized that his discretionary and mandatory parole eligibility dates had changed from August 21, 2015 to May 31, 2016, and March 2, 2020 to October 24, 2023, respectively. See Pl.'s Aff. ¶ 7; Plaintiff's Memorandum in Opposition to Defendants' Renewed Motion for Summary Judgment (“Pl.'s Mem.”) (Dkt. 36), at 8 ¶ 5.

Defendants contend that when plaintiff arrived at Deep Meadow, Major Pierotti instructed defendants Holmes and Mercado to review plaintiff's security level to determine whether plaintiff could be placed in the general population at Deep Meadow.See Memorandum in Support of Defendants' Renewed Motion for Summary Judgment (“Defs.' Mem.”) (Dkt. 33), Ex. 1 (Holmes Aff.) ¶ 7. Pursuant to this instruction, and in accordance with VDOC Op. Proc. 830.2, Holmes and Mercado reviewed and adjusted plaintiff's security level. Defendants state that during the review of plaintiff's security level, they recommended that his GCA Class Level be reduced, but did not actually effectuate the change in GCA Class Level. Holmes Aff. ¶ 7. The current record is therefore unclear as to when the reduction in plaintiff's GCA Class Level actually occurred, but it is undisputed that a reduction in plaintiff's GCA Class Level did occur at some point after plaintiff's transfer to Deep Meadow. The current record is also unclear as to whether plaintiff waived the 48–hour notice of his Formal Due Process Hearing as authorized by VDOC regulations, and unclear generally as to what process plaintiff was provided before the reduction in his GCA Class Level occurred.

II.

A brief summary of VDOC's regulations relating to GCA and the process afforded to inmates is necessary to understand and resolve the questions presented.

VDOC Op. Proc. 830.1 and 830.3 provide detailed procedures that prison officials must follow when modifying GCA Class Level and other conditions of an inmate's confinement. Pursuant to this regulation, when officials modify or review an inmate's security level classification, GCA earning level, facility assignment, or other factors affecting the inmate, the officials must conduct an Institutional Classification Authority (“ICA”) hearing. Importantly, there are two types of ICA hearings relevant to changes in GCA Class Levels. First, an inmate receives an annual classification review held on the yearly anniversary of his assignment to a particular security level.¹ An inmate has the right to be present and to participate in the annual classification review process, but an inmate on this occasion need not receive the full panoply of rights afforded at a Formal Due Process Hearing. See VDOC Op. Proc. 830.1(III) ; (IV)(B)(2)(a)(i) (“Due to the routine nature of annual reviews, due process is not required, but the offender should be allowed to be present and have input in the process.”).² At an inmate's annual review, officials must evaluate and can modify all aspects of the inmate's confinement, including the inmate's GCA Class Level. Id. (IV)(B)(2)(a)(iv).

If prison officials wish to reduce an inmate's GCA Class Level outside of his annual review, the VDOC Operating Procedures state that a Formal Due Process Hearing is “required.” See id. (III).³ Before a Formal Due Process Hearing, prison officials must provide an “Institutional Classification Authority Hearing Notification” to the inmate at least 48 hours in advance of the hearing. See VDOC Op. Proc. 830.1(V)(A)(1)-(2). To confirm that this notice has been provided, the inmate must sign the notification form and the prison official serving the notification must provide the inmate with a copy of the form. Id. (V)(A)(6). If the inmate refuses to sign the hearing notification, the prison official serving the notice must note the inmate's refusal and sign the form as a witness to that event. Id. An inmate may waive this 48–hour notice, but in that event the inmate must sign a waiver of the notice. Id. (V)(A)(2). At a Formal Due Process Hearing, the inmate is entitled (i) to be present, (ii) to hear the testimony or statement of the reporting officers to any relevant incident, (iii) to remain silent, (iv) to call and question witnesses, (v) to have a counselor or employee present, (vi) to “be advised verbally and in writing within five working days of the ICA's recommendation and reason for the decision,” (vii) to receive a copy of the final approving authority's decision, and (viii) to appeal the ICA's decision. Id. (V)(A)(3).

Whether at a Formal Due Process Hearing or an annual review, an inmate's GCA Class Level may only be reduced on the recommendation of the ICA and approval of the Facility Head. VDOC Op. Proc. 830.3(V)(F)(12). The VDOC Operating Procedures state that a Class Level reduction should be based on a “significant decline in any area of performance and responsibility to the extent that the offender clearly has failed to maintain behaviors that led to advancement to the present class.” Id. (V)(B)(4)(a). To determine an inmate's Class Level, the ICA evaluates him based on a point system. Inmates may earn up to 100 points in three categories: “Infractions”; “Reentry Plan, Annual Goals”; and “Work.” VDOC Op. Proc. 830.3(V)(C). Inmates earning 85 to 100 points are within the range for Class Level I; inmates earning 45 to 64 points are within the range for Class Level III. This point score and attendant Class Level can be rejected by the classifying authority by applying one of seven “approved overrides” that “must be justified with override numbers and supporting comments.” Id. (V)(F)(10). These overrides include:

(1) the existence of a point score in one area of evaluation that is inordinately high or low;(2) the seriousness or number of institutional infractions warranting a different Class Level;

(3) a significant recent decrease in an area of evaluation;

(4) an extraordinary improvement in one or more areas of evaluation;

(5) a lack of program availability

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