Jones v. Harrell

1

WESLEY REX JONES, Plaintiff, v. SHELBY HARRELL, et al., Defendants.

Civil Action No. 7:21-cv-00541

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

March 22, 2024

MEMORANDUM OPINION

Joel C. Hoppe United States Magistrate Judge.

Plaintiff Wesley Rex Jones, a Virginia inmate appearing pro se, alleges that Defendants Shelby Harrell, Heather Boyd, and Jeffrey Dillman, all Virginia Department of Corrections (“VDOC”) employees, violated his rights under the First and Fourteenth Amendments to the U.S. Constitution, 42 U.S.C. § 1983. See Compl. 3-11, ECF No. 1. Jones alleges that Defendants confiscated photographs he ordered from VDOC-approved vendor and required him to comply with a vague and overly broad Individualized Rehabilitation Plan (“IRP”) prohibiting him from viewing or possessing materials that visually portray “any male” subject in certain ways. See Id. He seeks equitable relief and $30,000 from each Defendant including for “mental [and] emotional damages.” Id. at 12. Defendants moved for summary judgment ECF No. 23, on four aspects of Jones's verified complaint. See Defs.' Br. in Supp. 8-9 (all claims against Dillman), 10-11 (Defendants' interpretation of Count I), 11-13 (Defendants' interpretation of Count II), 13-14 (request for compensatory damages, 42 U.S.C. § 1997e(e)), ECF No. 24; Fed.R.Civ.P 56(a). Their motion is fully briefed, ECF Nos. 24, 29, and can be decided without a hearing.^[1]

I. Summary

Defendants' motion for summary judgment, ECF No. 23, will be granted in part and denied in part. Specifically, Defendant Dillman has shown that there is no genuine dispute that he was not personally involved in the underlying alleged constitutional violations related to Jones's IRP and confiscated photographs and that he is therefore entitled to judgment as a matter of law under 42 U.S.C. § 1983. Accordingly, Defendants' motion will be granted with respect to any § 1983 claims against Dillman, and he will be dismissed from the action. Defendant Boyd has shown there is no genuine dispute that Jones's sexual orientation did not factor into her decisions about his IRP and that she is entitled to judgment as a matter of law on Jones's § 1983 claim that she violated his rights under the Fourteenth Amendment's Equal Protection Clause. Additionally, Jones's verified complaint does not plead facts supporting a reasonable inference that Harrell's decision to confiscate Jones's photographs was motivated by his sexual orientation. Accordingly, Defendants' motion will be granted in part with respect to Count II of the complaint. Only Count I will remain.

In Count I, Jones alleges that his IRP is unconstitutionally vague and over broad-both as Boyd drafted it and as Harrell applied it to justify confiscating most of Jones's commercial photographs. Liberally construed, Count I asserts § 1983 claims against Boyd and Harrell for violating Jones's First Amendment right to receive speech while incarcerated. Contrary to Defendants' position, Jones's verified complaint does not raise “a Fourteenth Amendment [Due Process Clause] facial vagueness challenge” against either VDOC Operating Procedure (“OP”) 735.2, or “the concept of IRPs.” Defs.' Br. in Supp. 10. Defendants' motion will be denied to the extent that it seeks summary judgment on a claim not asserted in the complaint. Defendants Harrell and Boyd will be directed to file a motion for summary judgment on Jones's First Amendment claims in Count I.

Finally, Defendants have not shown that they are entitled to judgment as a matter of law on Jones's request for compensatory damages. Their motion will be denied to the extent it asks the Court to dismiss that request for relief under 42 U.S.C. § 1997e(e). A separate Order shall enter.

II. Standard of Review

Summary judgment is a means of testing in advance of trial whether the available evidence would permit a reasonable jury to find in favor of the party asserting a claim or defense. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 521-22 (4th Cir. 2003). Under Rule 56, “[a] party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A “genuine issue of material fact” exists when proffered evidence that would be admissible at trial, viewed in the light most favorable to the nonmoving party, “is such that a reasonable jury could return a verdict for the nonmoving party” on a disputed “fact[] that might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248.

“[T]he party seeking summary judgment bears [the] initial burden of demonstrating the absence of a genuine issue of material fact.” Bouchat, 346 F.3d at 522 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)); see Fed.R.Civ.P. 56(c), (e). When, as here, a defendant moves for summary judgment on the plaintiff's claim against it, the defendant need only “point[] out . . . that there is an absence of [admissible] evidence to support” an essential element of that claim. Celotex Corp., 477 U.S. at 325; see Fed.R.Civ.P. 56(a), (c)(1)(B). It may also “cit[e] to particular parts of materials in the record” to show that a material “fact cannot be . . . genuinely disputed” based on the available evidence. Fed.R.Civ.P. 56(c)(1)(A). Once the defendant meets this burden, the plaintiff “must come forward and demonstrate” that a genuine dispute of material fact “does, in fact, exist.” Bouchat, 346 F.3d at 522 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). “As a general rule,” the plaintiff “cannot merely rely on matters pleaded in the complaint, but must, by factual affidavit or the like, respond to the [defendant's] motion.” Goodman v. Diggs, 986 F.3d 493, 498 (4th Cir. 2021) (internal quotation marks omitted); see Fed.R.Civ.P. 56(c)(1). “However, it is well established that a verified complaint is the equivalent of an opposing affidavit for summary judgment purposes, when the [factual] allegations contained therein are based on [the plaintiff's] personal knowledge.” Goodman, 986 F.3d at 498 (internal quotation marks omitted); see Fed.R.Civ.P. 56(c)(4) (“An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”). “A complaint is verified if it is signed, sworn, and submitted under penalty of perjury.” Goodman, 986 F.3d at 495 n.2 (internal quotation marks omitted).

III. Background^[2] & Procedural History

In 1999, Jones was convicted on multiple counts of forcible sodomy, aggravated sexual battery, and taking indecent liberties with a child. See, e.g., Commonwealth v. Wesley R. Jones, Nos. CR98-104-00, CR98-104-01, CR98-104-11, 98-282-02 (Campbell Cnty. Cir. Ct. Mar. 24, 1999); Harrell Aff. ¶ 12. He has been in VDOC custody since that time. Boyd Aff. ¶ 5. Between August 2019 and May 2022, Jones was housed at Green Rock Correctional Center (“GRCC”) in Chatham, Virginia. See Compl. 1; Harrell Aff. ¶ 5.

Jones's verified complaint contains two counts, each labeled “Violation of the Fourteenth Amendment of the United States Constitution.” Id. at 3, 8. Both counts relate to Defendants' involvement in confiscating more than 100 photographs (plus dozens of thumbnail images) that Jones ordered through a VDOC-approved vendor and subsequently requiring him to comply with an Individualized Rehabilitation Plan (“IRP”) as part of his sex-offender treatment at GRCC. See generally Compl. 3-7 (Count I); id. at 8-11 (Count II); Compl. Ex. 11, GRCC Individualized Rehab. Plan (May 11, 2021), ECF No. 1-1, at 15-16. Jones's IRP prohibits him “from viewing or possessing any publications, materials, drawings, or photos which may be detrimental to his [IRP], or which may or could promote sexually deviant behaviors, per O.P. 803.2.” Compl. Ex. 11, ECF No. 1-1, at 15. This prohibition includes,

viewing and possessing materials (including drawings) of any male who appears to be under the age of 18, or is purposefully attempting to appear to be under the age of 18, as well as all photographs, or drawings, that violate VA DOC policy (i.e., nude or any pornographic materials). Additionally, Mr. Jones may not view or possess materials featuring males touching themselves or each other in a manner that is perceived as sexual in nature, including but not limited to, touching the genital area, breasts, or buttock of themselves or others.

Id. (citing Va. Dep't of Corrs., Incoming Publications, OP 803.2 § I.B.2, ECF No. 24-3, at 27).

Harrell was a Psychology Associate I at GRCC in the spring of 2021. See Compl. 3; Harrell Aff. ¶¶ 1, 7-9; Boyd Aff. ¶ 8. On April 19, 2021, she directed two corrections officers to collect Jones's “personal papers, including books, magazines, and photos” and send them to her for review. Compl. 3; see Boyd Aff ¶¶ 8-9. Jones got some of those items back the next day. Compl. 3. Three books, 119 photos, and 57 pages of “thumbnail pictures used to order photos from an approved vendor” were missing. Id.; see Compl. Ex. 20, Offender Request (Apr. 21, 2021), ECF No. 1-1, at 26. Jones promptly asked Harrell to return the photos and thumbnails. Compl. Ex. 20, ECF No. 1-1, at 26. He also noted that he is bisexual and suggested Harrell was discriminating against him based on his sexual orientation. See id. On April 22, Harrell responded that they would meet within the week to discuss these...