Case: Burnette v. Fahey

3:10-cv-00070 | U.S. District Court for the Eastern District of Virginia

Filed Date: Feb. 3, 2010

Clearinghouse coding complete

Case Summary

On February 3, 2010, eleven Virginia prisoners, represented by the Legal Aid Justice Center and private counsel, filed this class action lawsuit against the Virginia Parole Board ("the Board") under 42 U.S.C. § 1983 in the U.S. District Court for the Eastern District of Virginia. Plaintiffs challenged the Board's denials of parole for prisoners convicted of violent offenses solely because of the nature and circumstances of the crimes they had been convicted of committing. Those denials, Plainti…

On February 3, 2010, eleven Virginia prisoners, represented by the Legal Aid Justice Center and private counsel, filed this class action lawsuit against the Virginia Parole Board ("the Board") under 42 U.S.C. § 1983 in the U.S. District Court for the Eastern District of Virginia. Plaintiffs challenged the Board's denials of parole for prisoners convicted of violent offenses solely because of the nature and circumstances of the crimes they had been convicted of committing. Those denials, Plaintiffs said, violated their due process rights and were unconstitutional ex post facto enhancements of their sentences. Plaintiffs sought declaratory and injunctive relief.

Specifically, Plaintiffs claimed that the Board adopted and implemented practices, policies, and procedures for making parole determinations without considering all the circumstances required by Virginia law, resulting in a drastic reduction in the availability of parole for prisoners convicted of violent offenses and the de facto abolition of the provisions of Virginia law governing parole for such prisoners. Moreover, Plaintiffs claimed these practices, policies and procedures created a significant risk of increasing the measure of punishment attached to their crimes at the time of sentencing.

Plaintiffs brought this action on behalf of a class of persons currently incarcerated by the Virginia Department of Corrections ("DOC") for violent offenses committed prior to January 1, 1995, who were or would become eligible for parole, and who had been or were likely to be denied parole exclusively or primarily by reference to the serious nature or circumstances of the crimes they had been convicted of committing.

On March 1, 2010, Defendants filed a Motion to Dismiss. On October 25, 2010, the Court (Judge Robert E. Payne) denied discovery and dismissed the case with prejudice. Judge Payne held that Plaintiffs had only a limited liberty interest in parole that was satisfied by existing prison procedures, noting that "the Board has provided each Plaintiff with a constitutionally valid reason for denying them release on discretionary parole." In addition, Judge Payne rejected the ex post facto claims because the complaint revealed that about 120 to 230 prisoners who had been convicted of committing violent crimes were released on parole each year.

On November 22, 2010, Plaintiffs filed a Motion to Alter Judgment Pursuant to Rule 59(e). In their Rule 59(e) motion, Plaintiffs requested that the Court alter or amend its order of dismissal to be "without prejudice" in order to provide Plaintiffs an opportunity to amend their Complaint. On March 1, 2011, Judge Payne denied Plaintiffs' Motion to Alter Judgment.

Plaintiffs appealed the case to the Fourth Circuit. On July 10, 2012, the Fourth Circuit affirmed the District Court’s ruling in an opinion delivered by Judge Henry F. Floyd. Judge Floyd largely adopted the district court's reasoning, noting that discretionary decisions about whether to grant parole did not implicate the ex post facto clause. Judge Roger L. Gregory dissented, criticizing the majority's "rigidly formalistic view" of due process that allowed the Board to discharge its duties by supplying Plaintiffs written reasons for parole denials without requiring individualized consideration.

Plaintiffs petitioned for a rehearing, but this was denied on November 15, 2012. No further activity has occurred since that date, and the case is now closed.

Summary Authors

Xin Chen (4/30/2011)

Christiana Johnson (11/15/2019)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/4405473/parties/burnette-v-fahey/


Judge(s)

Floyd, Henry Franklin (South Carolina)

Gregory, Roger L. (Virginia)

Niemeyer, Paul Victor (Maryland)

Payne, Robert E. (Virginia)

Attorneys(s) for Plaintiff

Angle, Robert Armistead (Virginia)

Gulotta, Alex Ross (Virginia)

Luck, Robert M. (Virginia)

Marshall, Gail Starling (Virginia)

Northup, Stephen Atherton (Virginia)

Richardson, William Rowland Jr. (Virginia)

Judge(s)

Floyd, Henry Franklin (South Carolina)

Gregory, Roger L. (Virginia)

Niemeyer, Paul Victor (Maryland)

Payne, Robert E. (Virginia)

Attorneys(s) for Plaintiff

Angle, Robert Armistead (Virginia)

Gulotta, Alex Ross (Virginia)

Luck, Robert M. (Virginia)

Marshall, Gail Starling (Virginia)

Northup, Stephen Atherton (Virginia)

Richardson, William Rowland Jr. (Virginia)

Turner, Abigail (Virginia)

Attorneys(s) for Defendant

Vorhis, Richard Carson (Virginia)

Documents in the Clearinghouse

Document

Docket [PACER]

Nov. 26, 2012 Docket
1

Complaint

Feb. 3, 2010 Complaint
4

Memorandum in Support of Defendants' Motion to Dismiss

March 1, 2010 Pleading / Motion / Brief
5

Plaintiffs' Memorandum in Opposition to Motion to Dismiss

March 15, 2010 Pleading / Motion / Brief
20

Memorandum Opinion

2010 WL 4279403

Oct. 25, 2010 Order/Opinion
25

Memorandum in Support of Plaintiffs' Motion to Alter or Amend Judgment Pursuant to Rule 59(e)

Burnette v. Boughton

Nov. 22, 2010 Pleading / Motion / Brief
30

Memorandum in Support of Defendants' Motion in Opposition to Plaintiffs' Motion to Alter or Amend Judgment Pursuant to Rule 59(e)

Dec. 7, 2010 Pleading / Motion / Brief
34

Memorandum Opinion

2011 WL 796739

March 1, 2011 Order/Opinion

Opinion

U. S. Court of Appeals for the Fourth Circuit

687 F.3d 171

July 9, 2012 Order/Opinion

Docket

See docket on RECAP: https://www.courtlistener.com/docket/4405473/burnette-v-fahey/

Last updated May 20, 2022, 2:18 a.m.

ECF Number Description Date Link
1

COMPLAINT filed by Frank Carter, Jr, Edward Conquest, Sharon Burnette, Donald W. Hoffman, Monty King, Larry Macon, Marvin McClain, Benjamin Perdue, Jr., Henry Stump, Barbara Tabor, and Pamela K. Burroughs AGAINST all defendants. Filing Fee $ 350; Receipt Number 34683006993.) (Attachments: # 1 Civil Cover Sheet, and # 2 Receipt)(lhin, ) (Entered: 02/03/2010)

1 Civil Cover Sheet

View on PACER

2 Receipt

View on PACER

Feb. 3, 2010 RECAP
2

Summons Issued as to Helen F. Fahey, Carol Ann Sievers, Jackie T. Stump, Michael M. Hawes, and Rudolph C. McCollum, Jr. (Counsel to pick up summons for service). (lhin, ) (Entered: 02/03/2010)

Feb. 3, 2010 PACER
3

MOTION to Dismiss by Helen F. Fahey, Carol Ann Sievers, Jackie T. Stump, Michael M. Hawes, Rudolph C. McCollum, Jr. (Vorhis, Richard) (Entered: 03/01/2010)

March 1, 2010 PACER
4

Memorandum in Support re 3 MOTION to Dismiss filed by Helen F. Fahey, Carol Ann Sievers, Jackie T. Stump, Michael M. Hawes, Rudolph C. McCollum, Jr. (Vorhis, Richard) (Entered: 03/01/2010)

March 1, 2010 PACER
5

Memorandum in Opposition re 3 MOTION to Dismiss filed by Sharon Burnette, Pamela K. Burroughs, Frank Carter, Jr, Edward Conquest, Donald W. Hoffman, Monty King, Larry Macon, Marvin McClain, Benjamin Perdue, Jr, Henry Stump, Barbara Tabor. (Northup, Stephen) (Entered: 03/15/2010)

March 15, 2010 PACER
6

Response to 5 Memorandum in Opposition, filed by Helen F. Fahey, Michael M. Hawes, Rudolph C. McCollum, Jr, Carol Ann Sievers, Jackie T. Stump. (Attachments: # 1 Unpublished Opinion - Patterson v. Kaine, # 2 Unpublished Opinion - Bowling v. Johnson, # 3 Unpublished Opinion - Williams v. Johnson, # 4 Unpublished Opinion - Lyons v. U.S. Parole Comm.)(Vorhis, Richard) (Entered: 03/18/2010)

March 18, 2010 PACER
7

MOTION for Leave to File Surreply Memorandum in Opposition to Motion to Dismiss by Sharon Burnette, Pamela K. Burroughs, Frank Carter, Jr, Edward Conquest, Donald W. Hoffman, Monty King, Larry Macon, Marvin McClain, Benjamin Perdue, Jr, Henry Stump, Barbara Tabor. (Attachments: # 1 Exhibit)(Northup, Stephen) (Entered: 03/23/2010)

1 Exhibit

View on PACER

March 23, 2010 PACER
8

MOTION for Joinder by John R. Lay. (Attachments: # 1 Cover Letter, # 2 Envelope)(tdai, ) (Entered: 03/26/2010)

March 26, 2010 PACER
9

ORDER GRANTING Plaintiffs' 7 Motion for Leave to File Surreply Memorandum in Opposition to Motion to Dismiss; It is further Ordered that the plaintiffs shall file their surreply forthwith. Signed by District Judge Robert E. Payne on 3/29/2010. (lhin, ) (Entered: 03/29/2010)

March 29, 2010 PACER
10

Response Surreply Memorandum in Opposition to Motion to Dismiss filed by Sharon Burnette, Pamela K. Burroughs, Frank Carter, Jr, Edward Conquest, Donald W. Hoffman, Monty King, Larry Macon, Marvin McClain, Benjamin Perdue, Jr, Henry Stump, Barbara Tabor. (Northup, Stephen) (Entered: 03/30/2010)

March 30, 2010 PACER
11

Notice of Hearing Date set for 05/11/2010 re 3 MOTION to Dismiss (Vorhis, Richard) (Entered: 04/26/2010)

April 26, 2010 PACER
12

CERTIFICATE of Service (Amended) re 11 Notice of Hearing Date by Richard Carson Vorhis on behalf of Helen F. Fahey, Michael M. Hawes, Rudolph C. McCollum, Jr, Carol Ann Sievers, Jackie T. Stump (Vorhis, Richard) (Entered: 04/27/2010)

April 27, 2010 PACER
13

ORDER re hearing on 3 MOTION to Dismiss scheduled for May 11, 2010 at 10:00 a.m. is RESCHEDULED to May 11, 2010 at 11:00 a.m. Signed by District Judge Robert E. Payne on 5/6/2010. (lhin, ) (Entered: 05/06/2010)

May 6, 2010 PACER
14

Minute Entry for proceedings held before District Judge Robert E. Payne: Motion Hearing held on 5/11/2010 re 3 MOTION to Dismiss filed by Carol Ann Sievers, Rudolph C. McCollum, Jr., Jackie T. Stump, Michael M. Hawes, Helen F. Fahey; matter submitted to court; opinion to enter (Court Reporter Peppy Strahan, OCR.) (wtuc) (Entered: 05/11/2010)

May 11, 2010 PACER
15

MOTION for Leave to File Limited Discovery by Sharon Burnette, Pamela K. Burroughs, Frank Carter, Jr, Edward Conquest, Donald W. Hoffman, Monty King, Larry Macon, Marvin McClain, Benjamin Perdue, Jr, Henry Stump, Barbara Tabor. (Northup, Stephen) (Entered: 05/26/2010)

May 26, 2010 PACER
16

Memorandum in Support re 15 MOTION for Leave to File Limited Discovery Prior to a Rule 26(f) Conference filed by Sharon Burnette, Pamela K. Burroughs, Frank Carter, Jr, Edward Conquest, Donald W. Hoffman, Monty King, Larry Macon, Marvin McClain, Benjamin Perdue, Jr, Henry Stump, Barbara Tabor. (Attachments: # 1 Exhibit)(Northup, Stephen) (Entered: 05/26/2010)

May 26, 2010 PACER
20

*** AMENDED IN PART. SEE 22 ORDER *** MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 10/25/2010. (lhin, ) Modified text on 11/18/2010 (tdai, ).

Oct. 25, 2010 RECAP
18

Memorandum in Support re 15 MOTION for Leave to File Limited Discovery filed by Helen F. Fahey, Michael M. Hawes, Rudolph C. McCollum, Jr, Carol Ann Sievers, Jackie T. Stump. (Vorhis, Richard) (Entered: 06/09/2010)

June 9, 2010
34

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 3/1/2011. (lhin, )

March 1, 2011 RECAP

Notice of Correction re 17 Opposition. Henry Stump removed and replaced by Jackie T. Stump as part filer to 17 Opposition. The docket has been corrected. No further action is required. (tdai, ) (Entered: 06/09/2010)

June 9, 2010
19

LETTER from chambers dated June 25, 2010 re Letter RECEIVED from Elvira M. Grasty. (lhin, ) (Entered: 06/28/2010)

June 28, 2010
21

*** AMENDED IN PART. SEE 23 ORDER *** ORDER DENYING 3 Motion to Dismiss; DENYING John R. Lay's 8 Motion for Joinder as Party Petitioner/Plaintiff; DENYING Plaintiff's 15 Motion for Leave to Conduct Limited Discovery Prior to a Rule 26(f) Conference; and the action is DISMISSED WITH PREJUDICE. Signed by District Judge Robert E. Payne on 10/25/2010. Copies sent to John R. Jay as directed. (lhin, ) Modified text on 11/18/2010 (tdai, ). (Entered: 10/25/2010)

Oct. 25, 2010

Case Dismissed Per Order dated 10/25/2010. (lhin, ) (Entered: 11/12/2010)

Oct. 25, 2010
22

ORDER that the 20 Memorandum Opinion is AMENDED to correct the second sentence in the first full paragraph on page 28 to read: "Therefore, the MOTION TO DISMISS (Docket No. 3) will be GRANTED." Signed by District Judge Robert E. Payne on 10/27/2010. Copies mailed. (lhin, ) (Entered: 10/28/2010)

Oct. 28, 2010
23

ORDER: It is hereby ORDERED that the Order (Docket No. 21) is AMENDED to correct paragraph (1) to read: "The MOTION TO DISMISS (Docket No. 3) is GRANTED." Signed by District Judge Robert E. Payne on 10/27/2010. Copies mailed. (lhin, ) (Entered: 10/28/2010)

Oct. 28, 2010
24

MOTION to Withdraw as Attorney by Sharon Burnette, Pamela K. Burroughs, Frank Carter, Jr, Edward Conquest, Donald W. Hoffman, Monty King, Larry Macon, Marvin McClain, Benjamin Perdue, Jr, Henry Stump, Barbara Tabor. (Richardson, William) (Entered: 11/12/2010)

Nov. 12, 2010
25

MOTION to Alter Judgment by Sharon Burnette, Pamela K. Burroughs, Frank Carter, Jr, Edward Conquest, Donald W. Hoffman, Monty King, Larry Macon, Marvin McClain, Benjamin Perdue, Jr, Henry Stump, Barbara Tabor. (Northup, Stephen) (Entered: 11/22/2010)

Nov. 22, 2010
26

Memorandum in Support re 25 MOTION to Alter Judgment Pursuant to Rule 59(E) filed by Sharon Burnette, Pamela K. Burroughs, Frank Carter, Jr, Edward Conquest, Donald W. Hoffman, Monty King, Larry Macon, Marvin McClain, Benjamin Perdue, Jr, Henry Stump, Barbara Tabor. (Northup, Stephen) (Entered: 11/22/2010)

Nov. 22, 2010
27

ORDER GRANTING 24 MOTION to Withdraw William R. Richardson, Esquire as counsel for the plaintiffs. Signed by District Judge Robert E. Payne on 12/1/2010. (lhin, ) (Entered: 12/02/2010)

Dec. 2, 2010
28

(FILED IN ERROR) Opposition To Plaintiff's Motion To Alter Or Amend Judgment Pursuant to Rule 59(e) filed by Helen F. Fahey, Michael M. Hawes, Rudolph C. McCollum, Jr, Carol Ann Sievers, Jackie T. Stump. (Vorhis, Richard) Modified on 12/7/2010 (lhin, ). (Entered: 12/07/2010)

Dec. 7, 2010
29

MOTION In Opposition To Plaintiff's Motion To Alter Or Amend Judgment Pursuant To Rule 59(e) by Helen F. Fahey, Michael M. Hawes, Rudolph C. McCollum, Jr, Carol Ann Sievers, Jackie T. Stump. (Vorhis, Richard) (Entered: 12/07/2010)

Dec. 7, 2010
31

RESPONSE in Support re 25 MOTION to Alter Judgment Pursuant to Rule 59(E) filed by Sharon Burnette, Pamela K. Burroughs, Frank Carter, Jr, Helen F. Fahey, Donald W. Hoffman, Monty King, Larry Macon, Marvin McClain, Benjamin Perdue, Jr, Henry Stump, Barbara Tabor. (Northup, Stephen) (Entered: 12/13/2010)

Dec. 13, 2010
32

MOTION for Joinder "to be added to this class action" by William L. A. Church. (Attachments: # 1 Cover Letter, # 2 Envelope)(tdai, ) (Entered: 01/27/2011)

Jan. 26, 2011
33

MOTION for permission to file for injunctive relief for an identification hearing among other injunctive relief by William L. A. Church. (Attachments: # 1 Cover Letter, # 2 Envelope)(tdai, ) (Entered: 01/27/2011)

Jan. 26, 2011
35

ORDER DENYING 25 Plaintiff's Motion to Alter Judgment; GRANTING 29 defendant's Motion in opposition to the Motion to Alter Judgment; DENYING 32 William Church's Motion to be Added to this Class Action; DENYING 33 Motion for Permission to File for Injunctive Relief; plaintiff may file a written notice of appeal within thirty (30) days of the date hereof. Signed by District Judge Robert E. Payne on 3/1/2011. Copies sent to counsel of record as directed. (lhin, ) (Entered: 03/01/2011)

March 1, 2011
36

NOTICE OF APPEAL as to 35 Order on Motion to Alter Judgment, Order on Motion for Miscellaneous Relief, Order on Motion for Joinder, 21 Order, 23 Order by Sharon Burnette, Pamela K. Burroughs, Frank Carter, Jr, Edward Conquest, Donald W. Hoffman, Monty King, Larry Macon, Marvin McClain, Benjamin Perdue, Jr, Henry Stump, Barbara Tabor. (Luck, Robert) Modified docket text on 3/30/2011 (jtho, ). (Entered: 03/30/2011)

March 30, 2011
37

Transmission of Notice of Appeal to US Court of Appeals re 36 Notice of Appeal, (All case opening forms, plus the transcript guidelines, may be obtained from the Fourth Circuit's website at www.ca4.uscourts.gov) (jgra, ) (Main Document 37 replaced on 4/4/2011) (jgra, ). (Entered: 04/01/2011)

April 1, 2011
38

USCA Appeal Fees received $ 455, receipt number 34683012309, re 36 Notice of Appeal, filed by Barbara Tabor, Frank Carter, Jr., Edward Conquest, Henry Stump, Sharon Burnette, Marvin McClain, Larry Macon, Pamela K. Burroughs, Monty King, Benjamin Perdue, Jr., Donald W. Hoffman. (cmcc, ) (Entered: 04/04/2011)

April 4, 2011

USCA Case Number 11−1324, Cyndi Halupa, case manager for 36 Notice of Appeal, filed by Barbara Tabor, Frank Carter, Jr., Edward Conquest, Henry Stump, Sharon Burnette, Marvin McClain, Larry Macon, Pamela K. Burroughs, Monty King, Benjamin Perdue, Jr., Donald W. Hoffman. (jgra, ) (Entered: 04/12/2011)

April 12, 2011
39

TRANSCRIPT of proceedings for dates of May 11, 2010, before Judge Robert E. Payne, re 36 Notice of Appeal, Court Reporter Peppy Peterson, Telephone number 804−916−2267. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 5/12/2011. Redacted Transcript Deadline set for 6/13/2011. Release of Transcript Restriction set for 7/11/2011.(peterson, peppy) Modified on 5/3/2011 to edit. (cmcc, ). (Entered: 04/12/2011)

April 12, 2011
40

Notice of Filing of Official Transcript filed on 4/12/2011 (Document # 39 ). (lhin, ) (Entered: 04/13/2011)

April 13, 2011
41

Opinion of USCA, AFFIRMED the District Court ruling re 36 Notice of Appeal, attached copy of judgment will not take effect until issuance of the mandate. (jgra, ) (Entered: 07/10/2012)

July 10, 2012
42

USCA JUDGMENT, AFFIRMED the judgment of the District Court as to 36 Notice of Appeal, filed by Barbara Tabor, Frank Carter, Jr., Edward Conquest, Henry Stump, Sharon Burnette, Marvin McClain, Larry Macon, Pamela K. Burroughs, Monty King,

July 10, 2012
44

Published ORDER of USCA as to 36 Notice of Appeal, filed by Barbara Tabor, Frank Carter, Jr., Edward Conquest, Henry Stump, Sharon Burnette, Marvin McClain, Larry Macon, Pamela K. Burroughs, Monty King, Benjamin Perdue, Jr., Donald W. Hoffman : The petition for rehearing is denied, and, because the poll on rehearing en banc failed to produce a majority of judges in active service in favor of rehearing en banc, the petition for rehearing en banc is also denied. (lbre, ) (Entered: 11/19/2012)

Nov. 15, 2012
45

USCA Mandate, judgment of this court, entered 07/09/12, takes effect 11/26/12 re 36 Notice of Appeal, (jgra, ) (Entered: 11/26/2012)

Nov. 26, 2012

State / Territory: Virginia

Case Type(s):

Prison Conditions

Key Dates

Filing Date: Feb. 3, 2010

Case Ongoing: No

Plaintiffs

Plaintiff Description:

A class of persons currently incarcerated for violent offenses, who are or will become eligible for parole, and who have been or are likely to be denied parole exclusively or primarily by reference to the "serious nature or circumstances of the crime."

Plaintiff Type(s):

Private Plaintiff

Attorney Organizations:

Legal Services/Legal Aid

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: Yes

Class Action Outcome: Denied

Defendants

Virginia Parole Board, State

Case Details

Causes of Action:

42 U.S.C. § 1983

Constitutional Clause(s):

Due Process

Ex Post Facto

Availably Documents:

Trial Court Docket

Complaint (any)

Non-settlement Outcome

Any published opinion

Outcome

Prevailing Party: Defendant

Nature of Relief:

None

Source of Relief:

None

Issues

General:

Classification / placement

Grievance Procedures

Type of Facility:

Government-run