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)

Attorney for Plaintiff

Angle, Robert Armistead (Virginia)

Gulotta, Alex Ross (Virginia)

Attorney for Defendant
Expert/Monitor/Master/Other

Lay, John R. (Virginia)

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Documents in the Clearinghouse

Document

3:10-cv-00070

Docket [PACER]

Nov. 26, 2012

Nov. 26, 2012

Docket
1

3:10-cv-00070

Complaint

Feb. 3, 2010

Feb. 3, 2010

Complaint
4

3:10-cv-00070

Memorandum in Support of Defendants' Motion to Dismiss

March 1, 2010

March 1, 2010

Pleading / Motion / Brief
5

3:10-cv-00070

Plaintiffs' Memorandum in Opposition to Motion to Dismiss

March 15, 2010

March 15, 2010

Pleading / Motion / Brief
20

3:10-cv-00070

Memorandum Opinion

Oct. 25, 2010

Oct. 25, 2010

Order/Opinion

2010 WL 4279403

25

3:10-cv-00070

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

Burnette v. Boughton

Nov. 22, 2010

Nov. 22, 2010

Pleading / Motion / Brief
30

3:10-cv-00070

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

Dec. 7, 2010

Dec. 7, 2010

Pleading / Motion / Brief
34

3:10-cv-00070

Memorandum Opinion

March 1, 2011

March 1, 2011

Order/Opinion

2011 WL 796739

11-01324

Opinion

U.S. Court of Appeals for the Fourth Circuit

July 9, 2012

July 9, 2012

Order/Opinion

687 F.3d 171

Docket

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

Last updated June 22, 2025, 1:02 a.m.

ECF Number Description Date Link 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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Oct. 25, 2010

RECAP
34

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

March 1, 2011

March 1, 2011

RECAP

Case Details