Ballance v. Virginia

• Decision Date: 27 September 2000
• Docket Number: No. CIV.A. 7:99-CV-00572.,CIV.A. 7:99-CV-00572.
• Citation: 130 F.Supp.2d 754
• Court: U.S. District Court — Western District of Virginia
• Parties: Kevin M. BALLANCE, Plaintiff, v. Commonwealth of VIRGINIA, G. Deeds, Major Rowlette, Regional Director Young, Edward W. Murray, and Larry Taylor, Defendants.

130 F.Supp.2d 754

Kevin M. BALLANCE, Plaintiff, v. Commonwealth of VIRGINIA, G. Deeds, Major Rowlette, Regional Director Young, Edward W. Murray, and Larry Taylor, Defendants.

No. CIV.A. 7:99-CV-00572.

United States District Court, W.D. Virginia, Roanoke Division.

September 27, 2000.

COPYRIGHT MATERIAL OMITTED

Kevin Ballance, Big Stone Gap, VA, pro se.

Pamela Anne Sargent, Office Of The Attorney General, Richmond, VA, for Major Rowlette.

MEMORANDUM OPINION

TURK, District Judge.

KEVIN M. BALLANCE, a Virginia inmate proceeding pro se, brings this action under the Civil Rights Act, 42 U.S.C. § 1983, with jurisdiction vested under 28 U.S.C. § 1343. Prior to this opinion, this Court dismissed the claims against all defendants except Major R.W. Rowlette ("Major Rowlette"). With respect to the remaining Defendant, Plaintiff alleges that Major Rowlette, an official of the Virginia Department of Corrections ("VDOC"), violated his constitutional rights by wrongfully confiscating photographs of children from his cell. As relief, he seeks an injunction directing that his materials be returned to him and that he be awarded punitive damages. Pursuant to Rule 56 of the Federal Rules of Civil Procedure, the matter comes before this Court on the Defendant's Motion for Summary Judgment and the Plaintiff's Motion for Summary Judgment. For the reasons stated below, the Defendant's Motion for Summary Judgment is Granted and the Plaintiff's Motion for Summary Judgment is denied.

I. FACTUAL BACKGROUND

Kevin M. Ballance, the plaintiff, is an inmate under the supervision of the Virginia Department of Corrections and currently housed at Wallens Ridge State Prison. During the alleged constitutional violation in question, Ballance was confined at Red Onion State Prison ("ROSP"). The Defendant, R.W. Rowlette is a Corrections Major and the Chief of Security at ROSP.

On or about December, 1998, Ballance received a book and brochure through the mail entitled "The Moving Picture Boy." The book discussed the lives of many different actors, including children, and contained pictures of children. A brochure also accompanied the book. The parties, however, disagree as to what the brochure contained. Major Rowlette alleges that the brochure contained pictures of children with both frontal and backside nudity. As the Defendant never received the brochure, he simply argues that the contents of the brochure is unknown. Based on Ballance's convictions as a sex offender, Major Rowlette confiscated the book and brochure.

Ballance did not receive a notice of the confiscation of the book and brochure until January 4, 1999. Major Rowlette explained that he failed to provide Ballance with the notice of confiscation sooner merely because of an administrative oversight. The notice explained that the book and brochure had been disapproved because they violated DOP 852, which empowers the Warden or a designee to review and confiscate any mail containing nude depictions of children. Major Rowlette then forwarded "The Moving Picture Boy" book and brochure to the VDOC Internal Affairs for further investigation. During the investigation, the brochure became lost and was never recovered. Thus, the publication review committee only had an opportunity to review the book. On April 29, 1999, the committee approved the book and ordered it returned to Ballance.

Due to the nature of the alleged child nudity in the confiscated book and brochure, Major Rowlette directed two security staff to search Ballance's cell for similar material. On December 2, 1998, the Officers discovered approximately 406 photographs of children in Ballance's cell. Some of the pictures included children in their undergarments, while some were of children with bare chests. Ballance claims that the pictures are of his family. Pursuant to DOP 856, which prohibits partially nude personal photographs, Major Rowlette confiscated the pictures and immediately provided Ballance with a copy of the notice of confiscation of property. The officers also confiscated some of Ballance's cellmate's pictures, which were subsequently returned after review.

In response to the confiscation of the photographs, Ballance filed a Red Onion State Prison Request for Services/Information Form on December 2, 1998, inquiring about why Major Rowlette directed the officers to take Ballance's pictures without provocation and contrary to any prison regulation. On the same day as Mr. Ballance's request for information, Major Rowlette provided him with a notification of confiscation relating to the 406 photographs of children. Ballance followed this notification with an inmate grievance form received in the Warden's Office on December 7, 1998. On December 9, 1998, Ballance filed a Red Onion State Prison Request for Complaint form Major Rowlette's comments about the video guide that Ballance had not yet received. On December 31, 1998, he filed an inmate grievance form relating to the confiscation of the original book and brochure.

Major Rowlette sent Ballance a memorandum on January 4, 1999, which explained his disapproval of the book "The Moving Picture Boy & Brochure" and that it was being forwarded to the Publication Review Committee. In response, Ballance again filed an inmate grievance form on January 8, 1999 complaining that Rowlette's confiscation of the book and the Warden/Superintendent's review of the book violates Ballance's rights. On January 12, 1998, the Staff Grievance Coordinator sent Ballance a memorandum requesting an extension of time to conduct an adequate investigation regarding the pictures of children in Ballance's cell. Ballance did not agree with the extension of time. Due to Ballance's rejection of the extension, his grievance materials were returned to him so that he could forward his grievance to the next level of prison procedure.

In response to Ballance's grievances, the Warden sent Ballance a Level I response form on February 17, 1999, which determined the grievances unfounded. Ballance appealed the Warden's decision, however, the Regional Director sent Ballance a Level II response form affirming the Warden's evaluation. Further, the Western Regional Director informed Ballance that Level II is the last level of appeal for his grievance.

II. ANALYSIS

Upon motion for summary judgment, the court must view the facts, and the inferences to be drawn from those facts, in the light most favorable to the party opposing the motion. Ross v. Communications Satellite Corp., 759 F.2d 355 (4th Cir.1985). Summary judgment is proper where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56(c). However, "[t]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

When a motion for summary judgment is made and properly supported by affidavits, depositions, or answers to interrogatories, the non-moving party may not rest on the mere allegations or denials of the pleadings. Instead, the non-moving party must respond by affidavits or otherwise and present specific facts showing that there is a genuine issue of disputed fact for trial. Fed.R.Civ.P. 56(e). If the non-moving party fails to show a genuine issue of fact, summary judgment, if appropriate, may be entered against the non-moving party.

The Plaintiff asserts that the Defendant violated his constitutional rights, specifically the First and Fourth Amendment, by confiscating four hundred and six (406) photographs of "his children" from his cell. Ballance asserts that under the First Amendment, he has a right to own and view the confiscated photographs. Under the Fourth Amendment, the Plaintiff argues that Major Rowlette unlawfully searched Ballance's cell and sequestered the photographs.

The Supreme Court established that neither the barbed wire nor the cement walls of confinement completely sever an inmate's Constitutional rights. See Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 129, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977). Although housed behind steel and stone, no "iron curtain" separates an inmate from his "Constitutional rights." Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

Prisoners are afforded those rights not "inconsistent with imprisonment itself or incompatible with the objectives of incarceration." Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). Limitations on these rights, however, arise from the realistic demands of prison enforcement and from "valid penological objectives-including deterrence of crime, rehabilitation of prisoners, and institutional security." O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) (citing Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974)). The Supreme Court recognized that the difficulties and complications of prison control as well as issues of separation of powers demand that courts follow a policy of "judicial restraint." Turner v. Safley, 482 U.S. 78, 85, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).

A. First Amendment

An inmate specifically retains those Constitutional rights afforded to him by the First Amendment. See Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800 (1974); See also Ross v. Reed, 719 F.2d 689, 693 (4th Cir.1983). In the prison context, however, an inmate's First Amendment rights must often bow to other valid penological concerns. See Montcalm Publishing Corp. v. Beck, 80 F.3d 105, 107 (1996) (citing Procunier v. Martinez, 416 U.S. 396, 417-18, 94 S.Ct. 1800, 40...