Borror v. White, Civ. A. No. 73-C-154-R.

• Decision Date: 06 June 1974
• Docket Number: Civ. A. No. 73-C-154-R.
• Citation: 377 F. Supp. 181
• Parties: Patrick Allen BORROR, Petitioner, v. C. E. WHITE, Superintendent, Correctional Field Unit #1, Respondent.
• Court: U.S. District Court — Western District of Virginia

377 F. Supp. 181

Patrick Allen BORROR, Petitioner, v. C. E. WHITE, Superintendent, Correctional Field Unit #1, Respondent.

Civ. A. No. 73-C-154-R.

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

June 6, 1974.

David M. Levy, Director, Charlottesville-Albemarle Legal Aid Society, Charlottesville, Va., for petitioner.

James W. Hopper, Asst. Atty. Gen., Richmond, Va., for respondent.

OPINION and JUDGMENT

DALTON, District Judge.

Patrick Allen Borror, a state prisoner incarcerated at Correctional Field Unit #31, Tazewell, Virginia, filed a complaint in the United States District Court for the Eastern District of Virginia on November 12, 1973, which by order of that date was transferred to this court. In that complaint, Borror charges that he did not receive payment from the Commonwealth of Virginia for barbering services which he allegedly performed for inmates between November 1, 1972, and July 1, 1973, while incarcerated at Pulaski Correctional Field Unit #1. No jurisdictional basis is given for the complaint, and therefore the court will treat it as one having been filed pursuant to the provisions of 42 U.S.C. § 1983.

From petitioner's correspondence and the reply affidavits of respondent, it appears that Borror was paid a twenty cent bonus for each day that he worked in November of 1972, which sum was raised to twenty-five cents in December of 1972 and January of 1973, and that during these three months he worked on both the road crew and kitchen crew, which allowed him to work every day of the month. In February of 1973, Borror was taken off the kitchen crew, and he lost his "trusty" status, as a result of either his escape on February 10, 1973, as respondent contends, or as a result of an out-of-state detainer placed against him, as petitioner contends, and consequently was paid the twenty-five cent bonus only for those days that he worked on the road. During the time he was at Unit #1, he performed barbering services for unit employees, accepting money in return,¹ generally fifty cents for a haircut according to C. E. White, then Superintendent of the unit. Superintendent White says that petitioner also served as unit barber for the inmates from November of 1972 until his first escape² in February of 1973, and that his bonus pay of twenty-five cents reflects this. White maintains that petitioner lost his status as unit barber as a result of his increase in security status after his escape, and that any haircuts given after this were done on a voluntary basis, for which Borror was generally reimbursed with cigarettes by the inmates, according to Superintendent White. Petitioner, on the other hand, contends that even the twenty-five cent bonus that he received does not reflect any payment for his services as unit barber, and he says that he was never informed after his first escape that his status as unit barber had been terminated and that he continued to barber inmates, for which he says he is entitled to be paid by the Commonwealth of Virginia.

The above factual conflict between petitioner's allegations and the avowals of respondent notwithstanding, petitioner's claim cannot be remedied by this court. Borror's action is one for back "bonuses" allegedly owed him by the Commonwealth of Virginia. However, there exists no constitutional right on the part of a state prisoner to be paid for his labor. Sigler v. Lowrie, 404 F.2d 659, 661 (8th Cir. 1968). See also Sims v. Parke Davis & Co., 334 F.2d 774, 793 (E.D.Mich.1971). It is readily apparent that such "bonuses" as petitioner did receive were given by the grace of the Commonwealth of Virginia. If petitioner has any "right" to payment for his services as unit barber, it is derived from the laws of Virginia, and is not a right secured by the Constitution or laws of the United States within the meaning of 42 U.S.C. § 1983. The nonexistence of a federal right in the instant action does not foreclose the petitioner from seeking appropriate relief in a Virginia court, whose duty it is to interpret and enforce the laws of Virginia, the source of what Borror alleges is his right to compensation.

Additionally, as it is not pretended that such back bonuses as petitioner seeks would be paid out of any fund other than the treasury of Virginia, petitioner's action is barred by the Eleventh Amendment, as there is no indication that the Commonwealth has in any manner consented to this suit. Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L.Ed.2d 662 (1974), reh. denied, 416 U.S. 1000, 94 S.Ct. 2414, 40 L. Ed.2d 777 (1974).

NECESSITY OF EXHAUSTION

Because of respondent's insistence that this court should not yet entertain this case because petitioner Borror has not yet exhausted certain state administrative remedies available to him, the court appointed counsel to represent petitioner and asked both parties to submit memoranda on this issue. In his memorandum, respondent reveals that on September 10, 1973, the Virginia Division of Corrections established an inmate grievance procedure to provide inmates with an administrative method for the settlement of grievances which they have relating to the conditions of their imprisonment. This grievance procedure became effective on October 1, 1973.

The mechanics of the Virginia inmate grievance procedure,³ in brief, are as follows: To begin a complaint, an inmate fills out and submits a grievance form to the assistant superintendent or other designated agent at his institution or field unit, who has five calendar days within which to respond to the inmate on the answer section of the form as to what action has been taken. All such decisions are reviewed by the superintendent of the unit, who has three calendar days in which to reach a determination. If his decision is contrary to the remedy the inmate seeks, the inmate is informed of his right to appeal. Appeals may be taken to a designated assitant director of the Division of Corrections, by those inmates in major institutions, and to a designated assistant superintendent of the Bureau of Correctional Units by those inmates in field units. These staff members have ten calendar days within which to reach a decision, and to notify the complaining inmate and unit superintendent of his determination. After receiving this disposition of his complaint, if the inmate still disagrees with the result, he may again note an appeal and a copy of this decision will be forwarded to the Director, Division of Corrections, or his designated agent, for review. The Director has five working days within which to reach a final decision, and to notify the inmate in writing of that decision. Hearings or investigations may be conducted at any stage of the grievance proceeding, but in no event is the total time from initial submission of the grievance until final action by the Director to exceed thirty days, according to the Division Guidelines.

Although petitioner did not utilize this newly-established procedure, he did write respondent White, who had become an Area Administrator, on October 1, 1973, concerning his alleged nonpayment for barbering services, and he also wrote W. E. Woodroof, Superintendent of the Bureau of Correctional Field Units, on October 9 and 23, 1973. White responded to petitioner by a letter of October 10, 1973, stating that in his opinion Borror had been paid for the work he had done while at Unit #1.

Woodroof replied to Borror's first letter to him on October 15, 1973, advising petitioner that Mr. White was working on his complaints. It is respondent's contention that Borror has not exhausted his available state administrative remedies under the inmate grievance procedure as he has not appealed White's decision of October 10, 1973, to Mr. Woodroof, and then to Mr. J. F. Howard, then Director of the Division of Corrections — but instead sought recourse in this court. In support of this alleged exhaustion requirement, respondent cites McCann v. Moss, Civil Action No. 73-C-61-L (W.D.Va.October 26, 1973), an opinion by this court which very definitely does not require exhaustion — and giving it such construction, as the court has noted before, is making a mountain out of a molehill.

More aptly cited by respondent is McCray v. Burrell, 367 F.Supp. 1191, 14 Cr.L. 2184 (D.C.Md.October 16, 1973), appeal docketed, No. 74-1042 (4th Cir. January 9, 1974) (hereinafter, McCray). In McCray, Judge Northrop took judicial notice of the Inmate Grievance Commission established in 1971 by the State of Maryland, see 41 Md.Code Ann. § 204F(d)-(l) (Supp.1971), whose duties are to investigate and correct grievances asserted by inmates of Maryland penal institutions, and held that inmates asserting claims under 42 U.S.C. § 1983 would henceforth have to exhaust this available, and as Judge Northrop found, adequate, state remedy before they could be heard in the district court on the § 1983 action.

As a practical matter, this court is entirely in sympathy and agreement with Judge Northrop's observations that the sheer bulk and number of prisoner suits under the guise of § 1983 is having a detrimental impact upon the administration of justice in the federal courts — as is reflected in the rising backlog of cases⁴ and the consequent lengthening of time between filing and disposition of those cases. As Judge Northrop notes, an exhaustion requirement would aid in the weeding out of spurious claims, and would result in the compilation of an administrative record, which would...