Patterson v. Kaine

Full title: LARRY EDWIN PATTERSON, Plaintiff, v. TIMOTHY M. KAINE, et al., Defendants

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

Date published: Jul 18, 2008

Civil Action No. 7:08cv00284 (W.D. Va. Jul. 18, 2008)

Opinion

Civil Action No. 7:08cv00284.

July 18, 2008

MEMORANDUM OPINION AND ORDER

JACKSON KISER, Senior District Judge

Plaintiff, Larry Edwin Patterson, Virginia inmate number 126575, filed a motion [docket no. 11] seeking reconsideration of this court's determination, in its memorandum opinions [docket nos. 3 9] of April 21 and May 1, 2008, that he has at least three "strikes" within the meaning of 28 U.S.C. § 1915(g) and thus cannot file this civil action or any other civil action without prepayment of the $350.00 fee required for filing civil actions unless he demonstrates that he is "under imminent danger of serious physical injury." See § 1915(g); see also Abdul-Akbar v. McKelvie, 239 F.3d 307, 314 (3d Cir. 2001) (restating "imminent danger of serious physical harm" standard). Plaintiff filed a notice of appeal, and the case has been transmitted to the United States Court of Appeals for the Fourth Circuit. On June 23, 2008, this court denied plaintiff's motion for reconsideration.

Upon further consideration of the motion for reconsideration, the court finds that, given plaintiff's dispute of the veracity of his three "strikes," it is helpful to review the actions that constitute such "strikes." Plaintiff has had at least three civil actions or appeals dismissed as frivolous or for failure to state a claim. The docket sheets in Patterson, et al. v. Garraghty, et al., Civil Action No. 3:98-cv-00197 (E.D. Va. August 11, 1998) and Patterson, et al. v. Coker, et al., Civil Action No. 3:98-cv-00238 (E.D. Va. January 13, 1999) clearly indicate that both of those cases were dismissed as frivolous. See Appendices I and II. Plaintiff is identified in both of those cases by his Virginia Department of Corrections inmate number, 126575, the same number he used when filing the instant case. Id. Plaintiff contends that, assuming he filed those cases, he abandoned them, and that they were dismissed for failure to prosecute. However, the docket sheet in Civil Action No. 3:98-cv-00197 indicates that plaintiff filed a number of motions in the case both before and after its dismissal, and that he appealed the case to the Fourth Circuit, which affirmed the decision of the district court. See Appendix I. The docket sheet in Civil Action No. 3:98-cv-00238 reflects that, between April 21, 1998, when the complaint was docketed, and January 13, 1999, when the complaint was dismissed as frivolous, plaintiff declined to consent to trial by magistrate judge, submitted financial information, again declined to trial by magistrate judge, consented to the collection of the filing fee, filed a response to an order, filed a motion to extend time to amend his complaint, and filed at least one objection to the magistrate judge's report and recommendation.See Appendix II. Then, after the dismissal, plaintiff filed a motion to extend the time within which to file a notice of appeal, which was granted. Id. It appears, however, that a notice of appeal was not filed.

Plaintiff contends that Patterson v. Jenkins, et al., 7:01-cv-00766 (W.D. Va. October 31, 2002) (dismissed for failure to state a claim upon which relief may be granted) was dismissed on defendant's motion for summary judgment, and therefore should not count as a "strike." Plaintiff is mistaken; the complaint was dismissed on defendant's motion to dismiss under Fed.R.Civ.P. 12(b)(6), and each claim plaintiff presented was dismissed because it failed on the merits. See Appendix III. Plaintiff appealed that dismissal to the Fourth Circuit, where the appeal was dismissed for failure to prosecute, and then plaintiff filed a petition for writ of certiorari to the Supreme Court of the United States, which was denied. See Appendix IV.

The court reiterates that it has reviewed the dockets in at least sixteen actions plaintiff has filed in the federal courts in Virginia, and has verified his identity as the plaintiff or petitioner in each case. The dockets in both of the two Eastern District cases cited herein as "strikes" clearly state that the complaint was "[d]ismissed as frivolous pursuant to [the] Prison Litigation Reform Act," and Civil Action No. 7:01-cv-00766 was dismissed for failure to state a claim upon which relief may be granted. It is clear that, pursuant to 28 U.S.C. § 1915(g), plaintiff is ineligible to proceed without full prepayment of the fee or a demonstration that he is under imminent danger of serious physical harm.

The Clerk is directed to send copies of this order and appendices to plaintiff, and to supplement the record on appeal with such.

APPENDIX I

U.S. District Court Eastern District of Virginia (Richmond) CIVIL DOCKET FOR CASE #: 3:98-cv-00197-JRS Plaintiff Larry E. Patterson Larry E. Patterson Defendant David A. Garraghty Defendant E. Delbridge Defendant R. Lann Defendant Known and Unknown Persons, all listed and not listed sued in both their Official and Individual Capacities herein Date Filed # Docket Text PACER Service Center Transaction Receipt PACER Login: Client Code: Description: Search Criteria: Billable Pages: Cost:

CLOSED, JURY Patterson, et al v. Garraghty, et al Date Filed: 04/03/1998 Assigned to: District Judge James R. Spencer Date Terminated: 08/11/1998 Demand: $0 Jury Demand: Plaintiff Case in other court: 98-07476 Nature of Suit: 555 Prison Condition Fourth Circuit, :98-07476 1 Jurisdiction: Federal Question Cause: 42:1983 Prisoner Civil Rights represented by #126575 Sussex I State Prison 24414 Musselwhite Drive Waverly, Va 23891-1111 PRO SE 04/03/1998 1 MEMORANDUM ORDER the action is CONDITIONALLY docketed; plaintiff has 30 days to comply with requirements of this MO. (signed by Magistrate Judge David G. Lowe) Copies Mailed: yes. (lsal) (Entered: 04/03/1998) 04/03/1998 2 COMPLAINT; jury demand (lsal) (Entered: 04/03/1998) 04/03/1998 Jury Trial Flag (lsal) (Entered: 04/03/1998) 04/03/1998 3 FINANCIAL AFFIDAVIT In Support of Request to Proceed IFP filed by Larry E. Patterson (lsal) (Entered: 04/03/1998) 04/03/1998 LETTER and Inmate Account form mailed to Greensville Correctional Center; Consent to Collection of Fees and Mag. Consent forms mailed to plaintiff w/copy of the 4/3/98 MO. (lsal) (Entered: 04/03/1998) 04/15/1998 4 Inmate account report form filed by Greensville Correctional Center. (clerk) (Entered: 04/15/1998) 04/20/1998 5 Prisoner Consent Form by Larry E. Patterson (clerk) (Entered: 04/21/1998) 04/20/1998 6 RESPONSE by Larry E. Patterson to [1-1] order (Affidavit Identifying Nature of Case/in Forma Pauperis Status (clerk) (Entered: 04/21/1998) 04/20/1998 7 DECLINE CONSENT to trial by Magistrate by Larry E. Patterson (clerk) (Entered: 04/21/1998) 04/27/1998 8 MEMORANDUM ORDER that within 11 days plaitniff submit an initial partial filing fee of $27.70 or stat under penalty of perjury that he does not have sufficient assets to pay such a fee. (signed by Magistrate Judge David G. Lowe) Copies Mailed: y (clerk) (Entered: 04/27/1998) 05/08/1998 9 MOTION by Larry E. Patterson to Extend Time (clerk) (Entered: 05/08/1998) 05/11/1998 10 Statement and exhibits demonstrating exhaustion and Grievance Forms by Larry E. Patterson (clerk) (Entered: 05/11/1998) 05/11/1998 Prisoner Payment paid in the amount: $27.70 Receipt: 46695 (clerk) (Entered: 05/11/1998) 05/19/1998 11 ORDER that the action is filed and pltf is granted to proceed IFP, the institution where pltf is confined will mail 20% of all of pltf's deposits to the Court until the balance of $122.30 is paid, the Clerk is directed to send MO and pltf's consent to collection of fees to the accounting dept at pltf's institution (signed by Magistrate Judge David G. Lowe) Copies Mailed: yes (scoo) (Entered: 05/19/1998) 05/26/1998 12 NOTICE of Requirement of Service/Summmons by Larry E. Patterson (clerk) (Entered: 06/26/1998) 06/04/1998 Prisoner Payment paid in the amount: $62.00 Receipt: 46965 (clerk) (Entered: 06/04/1998) 06/26/1998 13 REPORT AND RECOMMENDATIONS of Magistrate Judge David G. Lowe. Objections within 10 days. Copies Mailed: y (clerk) (Entered: 06/26/1998) 07/02/1998 Prisoner Payment paid in the amount: $13.52 Receipt: 47251 (clerk) (Entered: 07/02/1998) 07/07/1998 14 MOTION by Larry E. Patterson for Leave to File Amended Complaint (scoo) (Entered: 07/08/1998) 07/07/1998 Received Amended Complaint (left side of case file) (scoo) (Entered: 07/08/1998) 07/07/1998 15 OBJECTION by plaintiff Larry E. Patterson to [13-1] report and recommendations (scoo) (Entered: 07/08/1998) 08/05/1998 Prisoner Payment paid in the amount: $9.19 Receipt: 47610 (clerk) (Entered: 08/05/1998) 08/11/1998 16 MEMORANDUM OPINION (signed by Judge James R. Spencer) Copies Mailed: yes. (lsal) (Entered: 08/11/1998) 08/11/1998 17 ORDER the amended complaint is filed; Patterson's objections are overruled; the Report and Recommendation is accepted and adopted; the action is dismissed; Clerk is directed to note the disposition of the action for purposes of the Prison Litigation Reform Act of 1995. Plaintiff has 30 days to appeal the decision of the Court. (signed by Judge James R. Spencer) Copies Mailed: yes. (lsal) (Entered: 08/11/1998) 08/11/1998 18 AMENDED COMPLAINT by Larry E. Patterson amending [2-1] complaint (lsal) (Entered: 08/11/1998) 08/11/1998 Dismissed as frivolous pursuant to Prisoner Litigation Reform Act (lsal) (Entered: 08/11/1998) 08/11/1998 Case closed (lsal) (Entered: 08/11/1998) 08/18/1998 19 MOTION by Larry E. Patterson for Reconsideration of [17-1] order (scoo) (Entered: 08/18/1998) 08/31/1998 Prisoner Payment paid in the amount: $8.36 Receipt: 47825 (clerk) (Entered: 08/31/1998) 09/03/1998 20 MEMORANDUM OPINION (signed by Judge James R. Spencer) Copies Mailed: (scoo) (Entered: 09/03/1998) 09/03/1998 21 ORDER denying [19-1] motion by Larry E. Patterson for Reconsideration of [17-1] order, pltf is advised of his right to appeal within 30 days (signed by Judge James R. Spencer) Copies Mailed: yes (scoo) (Entered: 09/03/1998) 10/01/1998 Prisoner Payment paid in the amount: $15.52 Receipt: 48109 (clerk) (Entered: 10/01/1998) 10/05/1998 Prisoner Payment paid in the amount: $12.00 Receipt: 48136 (clerk) (Entered: 10/05/1998) 10/05/1998 22 NOTICE OF APPEAL OF [20-1] memorandum opinion, [21-1] order by Larry E. Patterson. No fee paid. TPO package mailed to plaintiff. (lsal) (Entered: 10/05/1998) 10/16/1998 USCA Case Number Re: [22-1] appeal by Larry E. Patterson CASE MANAGER: Jean St. John USCA NUMBER: 98-7476 (sbar) (Entered: 10/19/1998) 10/16/1998 FCCA LETTER to plaintiff dated 10/15/98 informing him of the proceeds for appeal (sbar) (Entered: 10/19/1998) 11/02/1998 23 USCA Order that the Court grants appellant leave to proceed ifp on appeal pursuant to the Prison Litigation Reform Act (sbar) (Entered: 11/03/1998) 11/03/1998 Certified and transmitted Record on Appeal to U.S. Court of Appeals: VOLUME ONE (Pleadings Numbered 1-22) [22-1] appeal by Larry E. Patterson (walk) (Entered: 11/03/1998) 12/11/1998 Prisoner Payment paid in the amount of $1.71, Receipt: 48870. (rpiz) (Entered: 12/14/1998) 12/11/1998 Prisoner Payment (appeal) paid in the amount of $20.00, Receipt: 48870. (rpiz) (Entered: 12/14/1998) 12/17/1998 24 Response by Larry E. Patterson regarding consolidating partial filing fees. (clerk) (Entered: 01/15/1999) 01/27/1999 25 ORDER that on 12/11/98 the Dist. Court's $150.00 filing fee was paid in full, a balance of $85.00 remains on the $105.00 appeal fee, the institution is directed to cease payments for the District Court action, any future payments will be applied toward the appeal fee, the institution shall continue to submit twenty percent of the deposits to pltf's account to the court until the balance on the appeal fee is paid (signed by Magistrate Judge David G. Lowe) Copies Mailed: yes (scoo) (Entered: 01/27/1999) 02/24/1999 26 Opinion of USCA re: [22-1] appeal by Larry E. Patterson affirming decision of USDC. (clerk) (Entered: 02/24/1999) 03/18/1999 27 JUDGMENT OF USCA (certified copy) Re: [22-1] appeal by Larry E. Patterson affirming the USDC (clerk) (Entered: 03/19/1999) 03/19/1999 Record on Appeal returned from U.S. Court of Appeals: [22-1] appeal (1 volume) (clerk) (Entered: 03/19/1999) 11/05/1999 Prisoner Payment paid in the amount: $38.30 Receipt: 52439 (clerk) (Entered: 11/05/1999) 12/07/1999 Prisoner Payment paid in the amount: $.30 Receipt: 52777 (clerk) (Entered: 12/07/1999) 07/10/2008 12:14:38 us3753 Robinson, Lindsey Docket Report 3:98-cv-00197-JRS 3 0.24

APPENDIX II

U.S. District Court Eastern District of Virginia (Richmond) CIVIL DOCKET FOR CASE #: 3:98-cv-00238-JRS Plaintiff Larry E. Patterson Larry E. Patterson Defendant Ronald T. Coker Defendant Tyrone Sloan Defendant D. Dugger Adjustment Committee Chairman Defendant J. Cooper Defendant David A. Garraghty Defendant Known and Unknown Persons, all listed and not listed sued in both their Official and Individual Capacities herein Date Filed # Docket Text PACER Service Center Transaction Receipt PACER Login: Client Code: Description: Search Criteria: Billable Pages: Cost: CLOSED Patterson, et al v. Coker, et al Date Filed: 04/21/1998 Assigned to: District Judge James R. Spencer Date Terminated: 01/13/1999 Demand: $0 Jury Demand: Plaintiff Cause: 42:1983 Prisoner Civil Rights Nature of Suit: 555 Prison Condition Jurisdiction: Federal Question represented by #126575 Sussex I State Prison 24414 Musselwhite Drive Waverly, Va 23891-1111 PRO SE 04/21/1998 1 MEMORANDUM ORDER the action is CONDITIONALLY docketed; plaintiff has 30 days to comply w/requirements of this MO. (signed by Magistrate Judge David G. Lowe) Copies Mailed: yes. (lsal) (Entered: 04/21/1998) 04/21/1998 2 COMPLAINT; jury demand (lsal) (Entered: 04/21/1998) 04/21/1998 3 FINANCIAL AFFIDAVIT In Support of Request to Proceed IFP filed by Larry E. Patterson (lsal) (Entered: 04/21/1998) 04/21/1998 LETTER and inmate account form mailed to Greensville Correctional Center; Consent to Collection of Fees, Consent to Magistrate Jurisdiction forms mailed to plaintiff w/copy of the 4/21/98 MO. (lsal) (Entered: 04/21/1998) 04/21/1998 Jury Trial Flag (lsal) (Entered: 04/21/1998) 04/27/1998 4 Response to by Larry E. Patterson [1-1] order (clerk) (Entered: 04/27/1998) 04/29/1998 5 Inmate account report form filed by Greensville Correctional Center. (lsal) (Entered: 04/29/1998) 05/14/1998 6 DECLINE CONSENT to trial by Magistrate by Larry E. Patterson (clerk) (Entered: 05/14/1998) 06/05/1998 7 FINANCIAL AFFIDAVIT by Larry E. Patterson in support of IFP. (clerk) (Entered: 06/05/1998) 06/05/1998 8 DECLINE CONSENT to trial by Magistrate by Larry E. Patterson (clerk) (Entered: 06/05/1998) 06/05/1998 9 Prisoner Consent Formcollection of fees by Larry E. Patterson (clerk) (Entered: 06/05/1998) 06/25/1998 10 MEMORANDUM ORDER plaintiff has 11 days to pay $34.56 partial filing fee. (signed by Magistrate Judge David G. Lowe) Copies Mailed: yes. (lsal) (Entered: 06/25/1998) 07/08/1998 Prisoner Payment paid in the amount: $34.56 Receipt: 47333 (clerk) (Entered: 07/08/1998) 07/08/1998 12 Response to June 25, 1998 order by Larry Patterson. (clerk) (Entered: 07/15/1998) 07/13/1998 11 MEMORANDUM ORDER the action is FILED and plaintiff is GRANTED leave to proceed IFP; institution where plaintiff is confined will mail 20% of all plaintiff's deposits to the Court until the balance of $115.44 is paid; payments to be made monthly. Clerk directed to mail plaintiff's institution a copy of this MO w/copy of Consent to Collection of Fees form (signed by Magistrate Judge David G. Lowe) Copies Mailed: yes. (lsal) (Entered: 07/13/1998) 08/05/1998 Prisoner Payment paid in the amount: $9.19 Receipt: 47609 (clerk) (Entered: 08/05/1998) 08/31/1998 Prisoner Payment paid in the amount: $8.36 Receipt: 47824 (clerk) (Entered: 08/31/1998) 10/05/1998 Prisoner Payment paid in the amount: $12.00 Receipt: 48135 (clerk) (Entered: 10/05/1998) 11/09/1998 13 REPORT AND RECOMMENDATIONS of Magistrate Judge David G. Lowe. Objections to be filed w/in 10 days. Copies Mailed: yes (clerk) (Entered: 11/09/1998) 11/09/1998 Prisoner Payment paid in the amount of $12.00, Receipt: 48475. (rpiz) (Entered: 11/09/1998) 11/17/1998 14 MOTION by Larry E. Patterson to Extend Time to Amend Complaint (lsal) (Entered: 11/17/1998) 12/11/1998 15 ORDER granting [14-1] motion by Larry E. Patterson to Extend Time of 11 days to submit his Amended Complaint (signed by Magistrate Judge David G. Lowe) Copies Mailed: y (clerk) (Entered: 12/11/1998) 12/11/1998 Prisoner Payment paid in the amount of $38.29, Receipt: 48870. (rpiz) (Entered: 12/14/1998) 12/23/1998 16 OBJECTION by plaintiff Larry E. Patterson to [13-1] report and recommendations (lsal) (Entered: 12/29/1998) 01/08/1999 Prisoner Payment paid in the amount: $12.00, Receipt: 49123 (rpiz) (Entered: 01/08/1999) 01/13/1999 17 MEMORANDUM OPINION (signed by Judge James R. Spencer) Copies Mailed: yes. (lsal) (Entered: 01/13/1999) 01/13/1999 18 ORDER the Report and Recommendation is accepted and adopted; the action is dismissed without prejudice; Clerk is directed to note the dispositon of the action for purposes of the Prison Litigation Reform Act of 1995; Clerk directed to send copy of Order to plaintiff. Plaintiff has 30 days to appeal. (signed by Judge James R. Spencer) Copies Mailed: yes. (lsal) (Entered: 01/13/1999) 01/13/1999 Dismissed as frivolous pursuant to Prisoner Litigation Reform Act (lsal) (Entered: 01/13/1999) 01/13/1999 19 JUDGMENT in a civil case. ENTERED by Deputy Clerk. Copies Mailed: yes. (lsal) (Entered: 01/13/1999) 01/13/1999 Case closed (lsal) (Entered: 01/13/1999) 02/10/1999 20 MOTION by Larry E. Patterson to Extend Time to file Notice of Appeal (clerk) (Entered: 02/11/1999) 03/04/1999 21 MEMORANDUM ORDER granting [20-1] motion by Larry E. Patterson to Extend Time to file Notice of Appeal. It is ORDERED that respondent is GRANTED an extension until March 9, 1999 to file a Notice of Appeal. (signed by Magistrate Judge David G. Lowe) Copies Mailed: yes. (lsal) (Entered: 03/04/1999) 04/15/1999 22 MEMORANDUM ORDER Patterson's Motion to consolidate partial filing fees is DENIED; Clerk is DIRECTED to mail a copy of the MO to Patterson and the accounting department at his current place of confinement. (signed by Magistrate Judge David G. Lowe) Copies Mailed: yes. (lsal) (Entered: 04/15/1999) 07/02/1999 Prisoner Payment paid in the amount: $54.00, Receipt: 51127 (rpiz) (Entered: 07/06/1999) 07/15/1999 23 MEMORANDUM ORDER. On July 2, 1999, the District court's filing fee for this action was paid in full. Accordingly the institution is directed to cease all further payments for the present action. (signed by Magistrate Judge David G. Lowe) Copies Mailed: y to Plaintiff and to the institution's inmate accounts department. (clerk) (Entered: 07/15/1999) 07/10/2008 12:16:52 us3753 Robinson, Lindsey Docket Report 3:98-cv-00238-JRS 2 0.16

APPENDIX III

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION LARRY EDWIN PATTERSON, ) Plaintiff, ) Civil Action No. 7:01-CV-00766 ) v. ) FINAL ORDER ) JAMES L. JENKINS, et als., ) By: Hon. Jackson L. Kiser Defendant(s). ) Senior U.S. District Court Judge In accordance with the accompanying memorandum opinion, it is hereby ADJUDGED AND ORDERED that defendant's motion to dismiss shall be and hereby is GRANTED and this case therefore is STRICKEN from the active docket of this court.

The Clerk is directed to send certified copies of this order and the accompanying memorandum opinion to plaintiff and to counsel of record for the defendant(s).

ENTER: This 31^st day of October, 2002.

Senior U.S. District Court Judge

MEMORANDUM OPINION

Plaintiff, Larry E. Patterson, 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. He names members of the Virginia Parole Board, James L. Jenkins, Linda Pitman, Charles Waddell, Kent Smith, and Charles James, as defendants. As service was returned unexecuted with respect to Pitman, Waddell, Smith and James, this court finds it appropriate to dismiss those defendants.¹ Plaintiff contends that while he was incarcerated at Buckingham Correctional Unit, defendant violated his rights guaranteed by the Equal Protection and Due Process Clauses. In addition, plaintiff believes that defendant violated the prohibition against ex post facto laws. He seeks declaratory, injunctive, and whatever relief I deem appropriate.

Defendant Jenkins filed a motion to dismiss arguing that plaintiff's rights had not been violated. The court notified the plaintiff of defendant's motion as required by Roseboro v. Garrison, 528 F.2d 309 (4^th Cir. 1975), and warned plaintiff that judgment might be granted for the defendant if the plaintiff did not respond to the motion. The plaintiff has responded to defendant's motion for to dismiss. Therefore, the motion is now ripe for consideration.

Having considered the defendant's motion, together with plaintiff's response and all other evidence related thereto, I have concluded that defendant's motion to dismiss will be granted.

I.

When considering dismissal under Fed.R.Civ.P. 12(b)(6), the court takes all factual allegations in the complaint as true and construes them favorably to the plaintiff. LaBounty v. Adler, 933 F.2d 121, 123 (2nd Cir. 1991); see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Moreover, courts should not consider any matters outside of the pleadings. Id.

Plaintiff appears to allege the following. In September of 1991, authorities arrested and charged plaintiff with violating parole and some other offense. Plaintiff was convicted in March of 1992. Plaintiff states that under Virginia Parole statutes, he was entitled to a parole interview in the third year quarter of 2000. The Virginia Parole Board did not review plaintiff for discretionary parole release until February 14, 2001, five to seven months beyond his entitled review period. The parole board denied plaintiff parole one hundred and forty (140) days after his parole interview. Plaintiff believes that under Virginia law, he was entitled to a response within thirty (30) days. Plaintiff appealed the denial decision, and on August 16, 2001, the board rejected plaintiff's appeal. Plaintiff believes that non-black inmates receive parole hearings prior to their review period, unlike blacks. Plaintiff also believes that non-black inmates with similar backgrounds are granted parole at a higher rate than blacks.

II. EQUAL PROTECTION

Plaintiff contends that the Virginia Parole Board discriminates against potential parolees on the basis of race. Plaintiff contends that non-black inmates receive parole hearings prior to their eligibility period and are granted parole release more often than blacks. "An equal protection claim arises when, without adequate justification, similarly situated persons are treated differently by a government entity." See Reffitt v. Nixon, 917 F.Supp. 409 (E.D. Va. 1996). Notwithstanding this basic right, "[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they are the same." Id. (quotingTigner v. Texas, 310 U.S. 141, 147 (1940)). As such, in light of the various factors involved in a parole decision, "[i]t is difficult to believe that any two prisoners could ever be considered `similarly situated' for the purpose of judicial review of an equal protection claim." See Refitt, 917 F.Supp. at 414; and Rowe v. Cuyler, 534 F. Supp. 297 (E.D.Pa., 1982.),aff'd, 696 F.2d 985 (3rd Cir. 1982) (unpublished). Because Virginia's parole decisions are individualized determinations based on a number of factors including prior criminal history, institutional adjustment, behavior pattern, developmental activities and information provided by family members, victims and other individuals as well as input from advocates and opponents, I cannot find that plaintiff has provided sufficient evidence demonstrating that he received disparate treatment when compared with a similarly situated individual. As such, I must dismiss this claim.

Patterson also believes that his equal protection rights were violated because his parole was denied without an investigation of certain alleged improper conduct by the Commonwealth. Because Patterson fails to provide evidence of similarly situated individuals being treated differently, I find that this claim must be dismissed. See City of Cleburne v. Cleburne Living Center., Inc., 473 U.S. 432, 440 (1985).

III. DUE PROCESS

Patterson believes defendant violated his rights guaranteed by the Due Process Clause of the United States Constitution. First, Patterson argues that defendant violated his right to due process by intentionally failing to review his eligibility for parole during the time proscribed by statute. Plaintiff argues that on several occasions, he informed defendant of his eligibility; however, defendant ignored plaintiff's warning. Second, plaintiff believes that defendant violated his right to due process when upon receiving an interview with the parole board, defendant waited more than one-hundred and forty (140) days to notify plaintiff of their decision. Third, Patterson argues that defendant violated his right to due process by denying plaintiffs appeal of the parole board's decision before granting plaintiff a hearing with a representative present.

A cognizable Fourteenth Amendment claim requires that a plaintiff demonstrate that the government has deprived him of life, liberty or property without due process of law. U.S. Const., Amend. XIV. However, before I determine whether plaintiff has been denied due process, I must first inquire whether plaintiff's claimed interest is one which requires due process protection. Greenholtz v. Inmates of Nebraska Penal Correctional Complex, 442 U.S. 1, 7 (1979) (Nebraska statute created a liberty interest in parole release). Because it is well-established that "there is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence," any liberty interest in parole release plaintiff believes he is entitled to is a result of a state statute. Id.² While the Fourth Circuit has concluded that Virginia parole statutes do not create a liberty interest in parole release, the Court has recognized that at times there may exists some liberty interest in parole consideration. See Hill v. Jackson, 64 F.3d 163, 170 (4th Cir. 1995); see also Gaston v. Taylor, 946 F.2d 340, 344 (4th Cir. 1991) (en banc). The Hill Court further stated, "it is clear that there is no protected liberty interest in the procedures themselves, only in the subject matter to which they are directed."

2 The Supreme Court has determined that "if state law creates a right which involves a person's liberty, the individual possessing this right is entitled to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state created right is not arbitrarily abrogated." See Wolff v. McDonnell, 418 U.S. 539, 557 (1974).

With respect to Patterson's claims relating to the parole's board's failure to review his parole eligibility during the time proscribed and the parole's board's failure to inform plaintiff of the board's decision in a timely manner upon granting his parole interview, I find that these are procedural matters which are not protected by the due process clause. Accordingly, I must dismiss these claims.

Patterson also believes that his due process rights were violated because the parole board denied his appeal of the parole board's adverse decision prior to allowing plaintiff's representative to present evidence. I must dismiss this claim because there is no constitutional requirement mandating that plaintiff have a representative present at an appeal of a parole board's adverse decision. See Franklin v. Shields, 569 F.2d 784 (4th Cir. 1977), cert. denied, 435 U.S. 1003 (1978).

IV. EX POST FACTO CLAUSE

Patterson claims that the decision to defer his parole eligibility review for three years violates his rights to be free from ex post facto laws. I must note that the Virginia Parole Board has been vested with the authority to defer parole consideration hearings on a discretionary basis since 1977. See Grimm v. Jackson, 849 F. Supp. 1127, 1134 (W.D. Va. 1994). A review of the record reveals that Patterson's offenses date from October of 1979. As such, deferral of Patterson's eligibility does not violate the Ex Post Facto Clause, and I must dismiss this claim.

The Clerk is directed to send certified copies of this memorandum opinion and accompanying order to plaintiff and to counsel of record for the defendant(s).

Order

This action is before the court upon plaintiff's motion to set this matter for trial. Because plaintiff's action is no longer pending on the court's docket. It is hereby

ORDERED

that plaintiff's motion shall be and hereby is DENIED as moot.

The Clerk of the Court is directed to send certified copies of this Order to plaintiff.

ORDER

By order entered November 12, 2002, the court dismissed plaintiff's 42 U.S.C. § 1983 action. Plaintiff has now filed what the court construes as a motion to reconsider this court's order. After carefully considering the plaintiff's motion, I remain convinced that dismissal of plaintiff's action was appropriate. Accordingly, it is hereby

ORDERED

that plaintiff's motion for reconsideration shall be and hereby is DENIED.

The Clerk of the Court is directed to send certified copies of this Order to the plaintiff.

ORDER

By order entered October 31, 2002, I dismissed plaintiff's 42 U.S.C. § 1983 action. Plaintiff has now filed what the court construes as a motion to reconsider the court's order. Because I remain convinced that dismissal of plaintiff's action was appropriate, it is hereby

ORDERED

that plaintiff's motion for reconsideration shall be and hereby is DENIED.

The Clerk of the Court is directed to send certified copies of this Order to the plaintiff.

APPENDIX IV

U.S. District Court Western District of Virginia (Roanoke) CIVIL DOCKET FOR CASE #: 7:01-cv-00766-jlk-gc Internal Use Only Plaintiff Larry E. Patterson Larry E. Patterson Larry E. Patterson LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Chairman James :L. Jenkins Richard Carson Vorhis Virginia Parole Board LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Chairman Linda R. Pitman Virginia Parole Board Defendant Member Charles L. Waddell Virginia Parole Board Defendant Member Kent P. Smith Virginia Parole Board Defendant Member Charles E. James Virginia Parole Board Defendant Known and Unknown Persons Associated with the Virginia Parole Board, all parties are sued in their Official and Individual capacities Date Filed # Docket Text 52 52

CLOSED, PRIS Patterson v. Jenkins, et al Date Filed: 10/09/2001 Assigned to: Judge Jackson L. Kiser Date Terminated: 10/31/2002 Referred to: Magistrate Judge Glen E. Conrad (Magistrate) Jury Demand: Plaintiff Demand: $0 Nature of Suit: 530 Habeas Corpus Case in other court: 03-06466 (General) Cause: 42:1983 Prisoner Civil Rights Jurisdiction: Federal Question represented by PRO SE BUCKINGHAM CORRECTIONAL CENTER P.O. BOX 430 DILLWYN, VA 23936-0177 V. represented by OFFICE OF THE ATTORNEY GENERAL 900 EAST MAIN STREET RICHMOND, VA 23219 804-786-4805 Fax: 804-786-4239 Email: rvorhis@oag.state.va.us 10/09/2001 1 ORDER 10/04/01, FILING this action; ADVISING inmate as to 3 strikes rule of PLRA; ASSESSING a fee of $150.00; DEFERRING all action in this case; ADVISING inmate to comply within the allotted time and to notify of changes in address or risk dismissal; REFERRING case for all non-dispositive motions USMJ Glen Conrad (signed by Magistrate Judge Glen E. Conrad) [EOD Date 10/9/01] (mka) 10/09/2001 2 COMPLAINT (mka) 10/22/2001 3 AFFIDAVIT by Larry E. Patterson Re: inmate account (ssm) 10/22/2001 4 VERIFIED STATEMENT w/out Attachments by Plaintiff (ssm) 11/05/2001 Filing Fee Paid; FILING FEE $150 RECEIPT # 107786 (ssm) (Entered: 11/07/2001) 01/14/2002 5 ORDER, ent. AUTHORIZING the Trust Accounts Office at Buckingham Correctional Center to begin fee collection in this case. (signed by Magistrate Judge Glen E. Conrad) [EOD Date 1/14/02] (mka) 01/14/2002 NOTICE OF LAWSUIT AND REQUEST FOR WAIVER OF SERVICE OF SUMMONS as to James :L. Jenkins, Linda R. Pitman, Charles L. Waddell, Kent P. Smith, Charles E. James, Known and Unknown 1/14/02 Answer deadline projected for 3/15/02 for Known and Unknown, for Charles E. James, for Kent P. Smith, for Charles L. Waddell, for Linda R. Pitman, for James :L. Jenkins Waiver of Service due by 2/13/02 for Known and Unknown, for Charles E. James, for Kent P. Smith, for Charles L. Waddell, for Linda R. Pitman, for James :L. Jenkins (mka) 01/18/2002 CERTIFIED RECEIPT OF SERVICE on service as to James :L. Jenkins, Linda R. Pitman, Charles L. Waddell, Kent P. Smith, Charles E. James, Known and Unknown executed on 1/16/02 Answer due on 2/5/02 for Known and Unknown, for Charles E. James, for Kent P. Smith, for Charles L. Waddell, for Linda R. Pitman, for James :L. Jenkins (mka) 01/24/2002 6 MOTION for Reconsideration of [5-1] order ent. AUTHORIZING the Trust Accounts Office at Buckingham Correctional Center to begin fee collection in this case. by Larry E. Patterson (ssm) 02/11/2002 7 ORDER Vacating [5-1] order ent. AUTHORIZING the Trust Accounts Office at Buckingham Correctional Center to begin fee collection in this case and directing Trust Accounts Officer to return any funds that may have been collected in response to the order forthwith to Mr. Patterson's account (signed by Magistrate Judge Glen E. Conrad) [EOD Date 2/11/02] (mka) 02/11/2002 WAIVER OF SERVICE Returned Executed as to James :L. Jenkins (ssm) (Entered: 02/13/2002) 02/11/2002 8 REFUSAL OF SERVICE on — Linda R. Pitman, Charles L. Waddell, Kent P. Smith, Charles E. James because no longer an employee/no such person. (ssm) (Entered: 02/13/2002) 02/13/2002 (Court only) **Added for James :L. Jenkins attorney Richard Carson Vorhis (ssm) 02/13/2002 9 SERVICE LETTER TO PLAINTIFF in re: non service of Linda R. Pitman, Charles L. Waddell, Kent P. Smith, Charles E. James and requesting further information. (ssm) 02/19/2002 ACKNOWLEDGMENT LETTER from USCA as to application for a writ of mandamus not complying with Rule 21 (mka) 02/25/2002 10 MOTION to Compel duties of disclosure and disclosure by Larry E. Patterson (Attorney) (mka) 02/27/2002 11 RESPONSE by Larry E. Patterson to [9-1] letter (ssm) 03/07/2002 12 ORDER [10-1] motion to Compel duties of disclosure and disclosure under advisement (signed by Magistrate Judge Glen E. Conrad) [EOD Date 3/7/02] (ssm) 03/07/2002 (Court only) **Terminated document (ssm) 03/07/2002 13 REQUEST FOR PRODUCTION OF DOCUMENTS by Larry E. Patterson with attachments (ssm) 03/08/2002 USCA NOTICE of INTENT TO DISMISS dated 3-6-02 (ssm) 03/14/2002 14 MOTION to Extend Time deft Jenkins to respond within 30 days by James :L. Jenkins (Attorney) (ssm) 03/15/2002 15 ORDER granting [14-1] motion to Extend Time deft Jenkins to respond within 30 days (signed by Magistrate Judge Glen E. Conrad) [EOD Date 3/15/02] (ssm) 03/25/2002 16 MOTION to set Pretrial Conference by Larry E. Patterson (ssm) (Entered: 03/26/2002) 03/27/2002 ORDER from USCA Withdrawing Appeal on requires of Petitioner Dismissing Appeal (ssm) 04/08/2002 17 MOTION for Temporary Restraining Order by Larry E. Patterson (ssm) 04/15/2002 18 MOTION to Dismiss and Supporting Memorandum by James :L. Jenkins (Attorney) (FOOTNOTE indic. that AG is representing only this deft as all others are no longer state employees and not yet been served) (ssm) (Entered: 04/16/2002) 04/16/2002 19 Roseboro Notice (ssm) 04/18/2002 20 MOTION to Take Emergency Deposition by Larry E. Patterson (ssm) 04/18/2002 21 ADDITIONAL EVIDENCE by Larry E. Patterson (ssm) 05/02/2002 22 MOTION to Extend Time pltf to respond by Larry E. Patterson (ssm) 05/09/2002 23 ORDER granting defts 30 days to respond to [13-1] produce requested (signed by Magistrate Judge Glen E. Conrad) [EOD Date 5/9/02] (ssm) 05/13/2002 24 MOTION for Hearing by Larry E. Patterson (ssm) 05/13/2002 25 MOTION to Extend Time for pltf to respond by Larry E. Patterson (ssm) 05/23/2002 26 ORDER granting [25-1] motion to Extend Time for pltf to respond, granting [22-1] motion to Extend Time pltf to respond, Response to Motion reset to 6/14/02 for [18-1] motion to Dismiss (signed by Magistrate Judge Glen E. Conrad) [EOD Date 5/23/02] (emh) 05/24/2002 27 MOTION to serve summons upon unknown now known defendants by Larry E. Patterson (mka) 06/06/2002 28 MOTION for Protective Order and objections to discovery requests by James :L. Jenkins (Attorney) (ssm) 06/11/2002 29 MOTION to Extend Time 10 additional days by Larry E. Patterson (ssm) 06/19/2002 30 OBJECTIONS by Larry E. Patterson [28-1] motion for Protective Order and objections to discovery requests by James :L. Jenkins (ssm) 06/19/2002 31 RESPONSE by Larry E. Patterson in Opposition to [18-1] motion to Dismiss and Supporting Memorandum by James :L. Jenkins (ssm) 07/01/2002 32 ORDER granting [29-1] motion to Extend Time 10 additional days, granting [28-1] motion for Protective Order and objections to discovery requests (signed by Magistrate Judge Glen E. Conrad) [EOD Date 7/1/02] (ssm) 08/07/2002 33 SECOND JUDICIAL NOTICE of by Larry E. Patterson (ssm) (Entered: 08/08/2002) 08/22/2002 34 MOTION FOR EMERGENCY INJUNCTION/MOTION for Preliminary Injunction by Larry E. Patterson (mka) 10/07/2002 35 letter by Larry E. Patterson re: status of this case (mka) 10/31/2002 36 MEMORANDUM OPINION (signed by Senior Judge Jackson L. Kiser) (mka) 10/31/2002 37 ORDER granting [18-1] motion to Dismiss and Supporting Memorandum and striking this case from the active docket (signed by Senior Judge Jackson L. Kiser) [EOD Date 10/31/02] (mka) 10/31/2002 Case closed (mka) 11/04/2002 38 "NOTE OF ISSUE" by Larry E. Patterson (ssm) 11/12/2002 39 ORDER denying as moot [38-1] additional evidence (signed by Senior Judge Jackson L. Kiser) [EOD Date 11/12/02] (mka) 11/12/2002 40 MOTION for Reconsideration of Final Order by Larry E. Patterson (ssm) (Entered: 11/13/2002) 11/27/2002 41 ORDER denying [40-1] motion for Reconsideration of Final Order, mooting [34-1] motion for Preliminary Injunction, mooting [27-1] motion to serve summons upon unknown now known defendants, mooting [24-1] motion for Hearing, mooting [20-1] motion to Take Emergency Deposition, mooting [17- 1] motion for Temporary Restraining Order, mooting [16-1] motion to set Pretrial Conference (signed by Senior Judge Jackson L. Kiser) [EOD Date 11/27/02] (ssm) 12/13/2002 42 MOTION to Amend to Correct Findings Under FRCP (b) by Larry E. Patterson (ssm) 02/24/2003 43 ORDER denying [42-1] motion to Amend to Correct Findings Under FRCP (b) (signed by Senior Judge Jackson L. Kiser) [EOD Date 2/24/03] (ssm) 03/17/2003 44 NOTICE OF APPEAL by Larry E. Patterson, Inmate's mailing date of 03-14- 03. Order appealed: Final Order by Judge Kiser) (ssm) 03/17/2003 45 MOTION for certificate of appealability by Larry E. Patterson (ssm) 03/17/2003 Transmittal Letter w/ Notice of Appeal and certified copy of docket to USCA: [44-1] appeal by Larry E. Patterson (ssm) 03/27/2003 46 ORDER denying [45-1] motion for certificate of appealability (signed by Senior Judge Jackson L. Kiser) [EOD Date 3/27/03] (ssm) 03/27/2003 NOTICE of Docketing ROA from USCA Re: [44-1] appeal by Larry E. Patterson USCA Number: 03-6466 Docket Clerk M. Thomas (ssm) 03/31/2003 RECORD ON APPEAL in 1 volumes sent to U.S. Court of Appeals: Re [44-1] appeal by Larry E. Patterson (ssm) 04/03/2003 USCA NOTICE of receipt of order on post-judgment motion (mka) 05/21/2003 JUDGMENT OF USCA (certified copy) DISMISSING for failure to prosecute [44-1] appeal by Larry E. Patterson (ssm) 05/21/2003 RECORD ON APPEAL returned from U.S. Court of Appeals: [44-1] appeal (ssm) 05/21/2003 (Court only) **Remove appeal flag — no further appeals pending (ssm) 12/10/2003 USCA NOTICE of the Supreme Court denying certiorari (mka) 05/27/2005 (Court only) ***Deadlines terminated. (kab) 07/11/2008 (Court only) ***Staff Notes: Record ordered from archives on this date for law clerk. Accession number 021060162, location F0509343, box 106 of 123. (kab)