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THOMAS ALEXANDER and KEITH WILLIAM DEBLASIO,
Plaintiff, v. JAMES GILMORE, et al., Defendants.
Civil Action No. 3:01CV707
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA, RICHMOND DIVISION
April 30, 2002, Decided
April 30, 2002, Filed
MEMORANDUM
Thomas Alexander, a Virginia
state prisoner, and Keith William DeBlasio, a former Virginia state prisoner,
proceeding pro se and in forma pauperis filed this action claiming a violation
of the False Claims Act under 31 U.S.C. § 3729 and their constitutional rights
under 42 U.S.C. § 1983. The matter is before the Court on the Defendants' n1
motions to dismiss and preliminary review pursuant to the Prison Litigation
Reform Act. See 28 U.S.C. §§ 1915(e)(2); 1915A; 42 U.S.C. § 1997e(c). Jurisdiction is appropriate pursuant to 31
U.S.C. §§ 3729-31 and 28 U.S.C. § 1367.
I.
Standard For A Motion To Dismiss
Among other things, the PLRA requires the courts to dismiss any action
filed by a prisoner which is (1) frivolous or (2) "which fails to state a
claim upon which relief can be granted." 28 U.S.C. §§ 1915(e)(2) and
1915A; [*480] 42 U.S.C. § 1997e(c). The second standard is the familiar
standard for a motion to dismiss under Fed. R. Civ. P. 12(b)(6).
Rule 12(b)(6) allows a court to dismiss claims based on dispositive
issues of law. See Hishon v. King
& Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984). A
12(b)(6) motion cannot be granted as a matter of law unless "it is clear
that no relief could be granted under any set of facts that could prove
consistent with the allegations." Id. The Court presumes all factual
allegations in the complaint to be true and accords all reasonable inferences
to the non-moving party. 2A Moore's Federal Practice P12.07[2.5] (2d ed. 1994).
However, the Court is not bound to accept as true "conclusory allegations
regarding the legal effect of the facts alleged." Labram v. Havel, 43 F.3d
918, 921 (4th Cir. 1995). While the Court liberally construes pro se
complaints, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), it does not
act as the inmate's advocate, sua sponte developing statutory and
constitutional claims the inmate failed to clearly raise on the face of his
complaint. See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J.,
concurring); Cochran v. Morris, 73 F.3d 1310, 1314 (4th Cir. 1996) (en banc); Beaudett
v. Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Summary of Allegations and Claims
In the complaint, the Plaintiffs
allege that the Virginia Department of Corrections ("VDOC") receives
monies designated under the Violent Offenders Incarceration and
Truth-In-Sentencing Incentive Grants ("VOITIG"). 42 U.S.C. §§ 13701 through 13712. In order
to receive such grants, the VDOC was required to implement a program of
controlled substance testing for the inmates during their periods of
incarceration. The controlled substance testing program must be
consistent with the guidelines issued by the Attorney General of the United
States. The guidelines
issued by the Attorney General require the state, inter alia, to follow the
protocol established by the vendor of the test, to provide confirmation of
positive test results, and discard the urine samples in a sanitary manner.
On February 10, 1998, the VDOC submitted their procedures for drug testing in
order to receive their grants pursuant to VOITIG. Defendants Johnson and
Camache signed the submissions on behalf of the VDOC. In their submissions the
VDOC represented that (1) it would follow the manufacturer's instructions for
any drug testing instruments and (2) for any negative result in would dispose
of the urine in the sewer system and place the container in a biohazard bag.
The Plaintiffs claim that such representations were false.
First, both Plaintiffs allege
that they were ordered to dispose of containers and test materials in office
trash receptacles. Second, between December of 1998, the VDOC employed
the Syva RapidTest d.a.u. TM The manufacturer's instructions for the Syva
RapidTest TM provide "only a preliminary analytical result." A more
specific alternative chemical method must be used in order to obtain a
confirmed analytical." However,
the Defendants refuse to employ confirmation testing consistent with the
manufacturer's instructions for positive results. Specifically, on October 23,
1999, Plaintiff Alexander was required to provide a urine sample which was
tested with the Syva RapidTest TM. The sample tested positive for drugs.
Alexander demanded a confirmation test. No confirmation test was ever provided.
Alexander was charged and convicted on the institutional offense of being under
the influence of drugs or intoxicants. As a result of the charge and
conviction, Alexander was placed in segregation, placed in [*481] isolation and
forfeited ten days of earned good time credits.
The
Plaintiffs contend that they are entitled to relief on the following grounds:
1. The Defendants violated Alexander's rights under the Fifth, Eighth and Fourteenth Amendments by
punishing Alexander for being under the influence of drugs without providing
Alexander with a confirmation test.
2. The Defendants violated Alexander's right to due process under the
Virginia Constitution.
3. The
Defendants made false representations to the United States in order to obtain
federal monies in violation of the False Claims Act.
Constitutional Claims
Alexander claims that the Defendants
violated his federal constitutional rights to due process when they revoked his
good-time credits for being under the influence of drugs or intoxicants without
providing a confirmation drug test. Such a claim is not cognizable under 42
U.S.C. § 1983 until
Alexander succeeds in vacating his institutional conviction. See Edwards v. Balisok, 520 U.S. 641, 645-47,
137 L. Ed. 2d 906, 117 S. Ct. 1584 (1997). Nor does Alexander's placement in
segregation or isolation constitute a sufficiently grave deprivation to state a
claim for denial of due process or infliction of cruel and unusual punishment.
See In Re Long Term Segregation of
Five Percenters v. Moore, 174 F.3d 464, 471-73 (4th Cir. 1999) (concluding indefinite confinement in
segregation did not violate the Eighth Amendment); Beverati v. Smith, 120 F.3d
500, 502 (4th Cir. 1997)(finding no liberty interest implicated by inmate's
placement in segregation). Accordingly, Claim 1 will be dismissed.
Virginia Constitutional Claims
Alexander claims that the
failure to provide him with a confirmation drug test violated his right to due
process guaranteed by the Constitution of the Commonwealth of Virginia. The
Defendants asserts such a claim is barred by the relevant statute of
limitations which provides that:
No
person confined in a state or local correctional facility shall bring or have
brought on his behalf any personal action relating to the conditions of his
confinement until all available administrative remedies are exhausted. Such
action shall be brought by or on behalf of such person within one year after
cause of action accrues or within six months after all administrative remedies
are exhausted, whichever occurs later.
Va.
Code § 8.01-243.2. The incident giving rise to the Alexander's state due
process claim occurred on October 23, 1999. Alexander finished pursuing his
appeal from his conviction on May 30, 2000. At the latest, Alexander had six
months from May 30, 2000, or until November 30, 2000, to file any claim based
on a deprivation of his rights under the Constitution of Virginia. Alexander
did not file the present complaint until October 22, 2001. Hence, Claim 2 is
barred by the relevant statute of limitations and will be dismissed.
False Claims Act
The
False Claims Act ("FCA") permits a private litigant to bring an
action on behalf of the government against a "person" who
"knowingly presents, or causes to
be presented, [to the government] a false or fraudulent claim for payment or
approval." 31 U.S.C. § 3729(a)(1). States, state agencies, and individuals acting in their
official capacity are not persons for purposes of the FCA. See Vermont
Agency of Natural Res. v. United States ex rel. [*482] Stevens, 529 U.S. 765,
788 (2000); U.S. ex rel. Gaudineer & Comito, L.L.P. v. Iowa, 269 F.3d 932,
936 (8th Cir. 2001). Accordingly,
all FCA claims against the Virginia Department of Corrections, the Commonwealth
of Virginia and the employees of Virginia and the VDOC acting in their official
capacities must be dismissed.
The Plaintiffs also contend the employees of
Virginia and the VDOC are liable under the FCA in their individual capacities.
However, "the Supreme Court emphasized that the mere incantation of the
term "individual capacity" is not enough to transform an the term
"individual capacity" is not enough to transform an official capacity
action into an individual capacity action." See Lizzi v. Alexander, 255 F.3d 128, 136-37 (4th Cir. 2001)(citing Bender
v. Williamsport Area Sch. Dist., 475 U.S. 534, 543, 89 L. Ed. 2d 501, 106 S.
Ct. 1326 (1986)). Here, the complaint does not contain any facts that suggest
Johnson and Camache, the Defendants who submitted the application for a grant
under VOITIG, were acting in anything other than their official capacities. See
United States ex rel Gaudineer &
Comito, LLP., v Iowa, 269 F.3d 932, 937 (8th Cir. 2001)(denying as futile
motion to amend complaint to add claim against state official in his individual
capacity). There are no allegations that Johnson or Camache, or any of the
other defendants, converted funds from VOITIG to their personal use. See Smith
v. United States, 287 F.2d 299 (5th Cir. 1961) (indicating FCA claims against
government officials in their personal capacities should rest on allegations of
personal gain); United States ex rel Honeywell, Inc. v. San Francisco Housing
Authority, 2001 U.S. Dist. Lexis 9743, NO. C99-1936, 2001 WL 79300 at *5 (N.D.
Cal. 2001) (holding that FCA claims against government officials in their
personal capacities must contain allegations of personal gain); United States
ex rel Kinney v. Stoltz, 2002 U.S. Dist. Lexis 6178, NO. CIV. 01-1287, 2002 WL
523869 at *7 n.3 (D. Minn. Apr. 05, 2002); U.S. ex rel. Wilson v. Graham County
Soil & Water Conservation Dist., 2002 U.S. Dist. Lexis 6038, NO. 2:01 CV19-T,
2002 WL 487162 at *11 (W.D.N.C. Mar. 25 2002); Cf. Lizzi v. Alexander, 255 F.3d
128, 136-37 (4th Cir. 2001)(concluding the state agency was the real party in
interest where the actions of the individual defendants were tied inextricably
to their official duties). Accordingly, the complaint fails to state a personal
capacity FCA claim against any named defendant. Claim 3 and the action will be
dismissed.
An
appropriate Order shall issue.
James R. Spencer
United
States District Judge
Richmond, Virginia
Date: APR 30 2002
ORDER
In
accordance with the accompanying Memorandum, it is hereby ORDERED that:
1. The Plaintiffs' claims are dismissed.
2.
The action is dismissed.
3. The Clerk is directed to note the
disposition of the action for purposes of the Prison Litigation Reform Act of
1995.
Plaintiffs may appeal the decision of the Court. Should Plaintiffs wish
to do so, written notice of appeal must be filed with the Clerk of the Court within
thirty (30) days of the date of entry hereof. Failure to file a timely notice
of appeal may result in the loss of the right to appeal.
The
Clerk is directed to send a copy of the Memorandum and Order to Plaintiffs,
counsel of record, and the United States Attorney for this District.
And
it is so ORDERED.
James R. Spencer
United States District Judge
Richmond, Virginia
Dated: APR 30 2002
FOOTNOTES:
n1 Alexander and DeBlasio
have named fifteen separate individuals and entities as defendants, including
the former governor and the Virginia Department of Corrections.