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Case Name Burnette v. Fahey PC-VA-0015
Docket / Court 3:10-cv-00070-REP ( E.D. Va. )
State/Territory Virginia
Case Type(s) Prison Conditions
Attorney Organization Legal Services/Legal Aid
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 ... read more >
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.

Xin Chen - 04/30/2011
Christiana Johnson - 11/15/2019


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Ex Post Facto
General
Classification / placement
Grievance Procedures
Plaintiff Type
Private Plaintiff
Type of Facility
Government-run
Causes of Action 42 U.S.C. § 1983
Defendant(s) Virginia Parole Board
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."
Indexed Lawyer Organizations Legal Services/Legal Aid
Class action status sought Yes
Class action status granted No
Filed Pro Se No
Prevailing Party Defendant
Public Int. Lawyer Yes
Nature of Relief None
Source of Relief None
Filing Year 2010
Case Ongoing No
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
  Civil Rights Injunctions Over Time: A Case Study of Jail and Prison Court Orders
N.Y.U. Law Review
Date: May 2006
By: Margo Schlanger (Washington University Faculty)
Citation: 81 N.Y.U. L. Rev. 550 (2006)
[ Detail ] [ PDF ] [ External Link ]

  Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons
Book
Date: Jan. 1, 1998
By: Malcolm M. Feeley & Edward Rubin (UC Berkeley Boalt Hall School of Law & Vanderbilt School of Law Faculty Faculty)
Citation: (1998)
[ Detail ]

Docket(s)
3:10-cv-00070-REP (E.D. Va.)
PC-VA-0015-9000.pdf | Detail
Date: 11/26/2012
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint [ECF# 1]
PC-VA-0015-0003.pdf | Detail
Date: 02/03/2010
Source: PACER [Public Access to Court Electronic Records]
Memorandum in Support of Defendants' Motion to Dismiss [ECF# 4]
PC-VA-0015-0002.pdf | Detail
Date: 03/01/2010
Source: PACER [Public Access to Court Electronic Records]
Plaintiffs' Memorandum in Opposition to Motion to Dismiss [ECF# 5]
PC-VA-0015-0004.pdf | Detail
Date: 03/15/2010
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion [ECF# 20] (2010 WL 4279403) (E.D. Va.)
PC-VA-0015-0001.pdf | WESTLAW | Detail
Date: 10/25/2010
Source: PACER [Public Access to Court Electronic Records]
Memorandum in Support of Plaintiffs' Motion to Alter or Amend Judgment Pursuant to Rule 59(e) [ECF# 25]
PC-VA-0015-0005.pdf | Detail
Date: 11/22/2010
Source: PACER [Public Access to Court Electronic Records]
Memorandum in Support of Defendants' Motion in Opposition to Plaintiffs' Motion to Alter or Amend Judgment Pursuant to Rule 59(e) [ECF# 30]
PC-VA-0015-0006.pdf | Detail
Date: 12/07/2010
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion [ECF# 34] (2011 WL 796739) (E.D. Va.)
PC-VA-0015-0007.pdf | WESTLAW | Detail
Date: 03/01/2011
Source: PACER [Public Access to Court Electronic Records]
Opinion (687 F.3d 171)
PC-VA-0015-0008.pdf | WESTLAW| LEXIS | Detail
Date: 07/09/2012
Source: Westlaw
show all people docs
Judges Floyd, Henry Franklin (D.S.C., Fourth Circuit) show/hide docs
PC-VA-0015-0008
Gregory, Roger L. (Fourth Circuit) show/hide docs
PC-VA-0015-0008
Niemeyer, Paul Victor (D. Md., Fourth Circuit) show/hide docs
PC-VA-0015-0008
Payne, Robert E. (E.D. Va.) show/hide docs
PC-VA-0015-0001 | PC-VA-0015-0007 | PC-VA-0015-9000
Plaintiff's Lawyers Angle, Robert Armistead (Virginia) show/hide docs
PC-VA-0015-0004 | PC-VA-0015-0005 | PC-VA-0015-9000
Gulotta, Alex Ross (Virginia) show/hide docs
PC-VA-0015-0003 | PC-VA-0015-0004 | PC-VA-0015-9000
Luck, Robert M. (Virginia) show/hide docs
PC-VA-0015-0004 | PC-VA-0015-0005
Marshall, Gail Starling (Virginia) show/hide docs
PC-VA-0015-9000
Northup, Stephen Atherton (Virginia) show/hide docs
PC-VA-0015-0003 | PC-VA-0015-0004 | PC-VA-0015-0005 | PC-VA-0015-9000
Richardson, William Rowland Jr. (Virginia) show/hide docs
PC-VA-0015-0003 | PC-VA-0015-0004 | PC-VA-0015-0005 | PC-VA-0015-9000
Turner, Abigail (Virginia) show/hide docs
PC-VA-0015-0004 | PC-VA-0015-0005 | PC-VA-0015-9000
Defendant's Lawyers Vorhis, Richard Carson (Virginia) show/hide docs
PC-VA-0015-0002 | PC-VA-0015-0006 | PC-VA-0015-9000

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