A lawsuit filed by a Charlottesville attorney on behalf of a Virginia inmate who says officials censored his writings, violating his First and 14th Amendment rights, has been further clarified following a judge’s opinion.
According to an amended complaint filed by attorney Jeff Fogel in federal court in Richmond, Uhuru Baraka Rowe had two essays he wrote about poor prison conditions censored prior to their intended release online.
Neither essay contained anything that could be considered a security risk, the suit alleges, but they do contain information critical of both the Sussex II State Prison and its staff.
Rowe, who describes himself as a politically conscious prisoner, believes his letters were censored because they criticized the poor conditions of the prison.
The suit initially named five defendants — Harold C. Clarke, director of the Virginia Department of Corrections; T. Darden, assistant warden at Sussex II at the time relevant to the suit; Michelle Carpenter, a VDOC investigator; Gregory Halloway, eastern regional administrator for VDOC; and Eddie L. Pearson, warden of the Greensville Correctional Facility. All are being sued in their individual capacities.
In June, Senior U.S. District Judge Robert E. Payne granted motions for dismissal from four of the defendants who alleged insufficient grounds had been established. However, the motions to dismiss were allowed without prejudice, giving Fogel and Rowe the opportunity to refile an expanded and amended complaint.
“In this case, amendment may not be futile. Prisoners, like Rowe, are not stripped of First Amendment protections by the mere fact of their imprisonment,” Payne wrote.
“Accordingly, because Rowe may be able to plead a plausible claim for violation of his First Amendment rights, the motions to dismiss will be granted without prejudice and with leave to file a Second Amended Complaint,” Payne wrote. “However, counsel for Rowe is advised that any such Second Amended Complaint must contain sufficient factual allegations against any Defendants named in such Second Amended Complaint.”
Fogel said the four dismissals were granted on technical grounds and that he addressed the judge’s issues in an amended complaint filed soon after the dismissals were granted.
The amended complaint expands upon the claims made in the initial filing, presenting a stronger factual argument for each of the defendants’ roles regarding Rowe’s letter; drops defendant Pearson; and adds three more defendants: T.L. Birckhead, who was the operations manager at Sussex II; Natasha Perkerson, an intelligence officer with the VDOC; and Tracy Ray, the warden at Sussex II.
According to the second amended complaint, some time in the spring of 2018, defendants Carpenter and Perkerson learned that Rowe had an internet blog, which, on its face, does not violate any VDOC rules.
Carpenter became concerned, the complaint says, and Perkerson then contacted Birckhead to advise her of the existence of the blog and to ask about what procedures should be followed.
Birckhead advised Perkerson to get a “mail cover,” which would allow them to review every electronic communication from the plaintiff.
Defendant Ray issued the “mail cover” allowing Carpenter and Perkerson to review some of the emails from Rowe, including the essay “Life at Sussex 2 State Prison is a Potemkin Prison.”
The amended complaint alleges Carpenter and Perkerson believed the essay should be censored and brought it to the attention of Birckhead, who, after reviewing the content of the essay, directed that it be censored.
The complaint further alleges Carpenter censored the essay because it told of the death of an inmate that Rowe believed could have been avoided by the conduct of a named officer. Carpenter believed that this could jeopardize the named officer, according to the complaint.
The complaint alleges that no one ever told Rowe that this was the reason for the censorship and that Carpenter has acknowledged that the criticism of the institution in the essay was also of concern to her.
Rowe’s essays have since been released. In one of the essays, he describes Sussex II as a “Potemkin village,” a reference to fake portable villages built by Russian nobleman Grigory Potemkin in 1787 to fool and impress his former lover, Empress Catherine II.
Much like the Potemkin villages, Rowe said the prison is made to look put together and functional all while hiding the cruelties and injustices found within from inspectors representing the American Correctional Association.
“When the inspectors leave, however, the facade is removed, the show comes to an end, and it’s back to business as usual; back to treating us prisoners in a degrading and dehumanizing manner and subjecting us to conditions that are harsh, cruel and overly oppressive,” he wrote in one of the two essays.
Among other criticisms highlighted in Rowe’s essays are: poor-quality water, substandard medical care, overcrowding, misconduct from prison staff and understaffing. The understaffing has caused the prison to go on lockdown due to insufficient security, forcing prisoners to stay in their cells for longer periods of time than usual, one essay states.
Rowe, 43, has been imprisoned for more than 20 years on a 93-year sentence. According to VDOC’s website, Rowe will not be released until 2076. He is not eligible for parole.
Rowe has requested a trial by jury. No hearing dates are currently set.