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Case 3:22-cv-00134-JAG-MRC Document 26 Filed 12/22/22 Page 10 of 12 PagelD# 139
Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003). A violation of the Virginia FOIA does not
implicate a federal statutory or constitutional right because it is a state law. Therefore, Melby fails
to state a claim for relief under § 1983, and for this reason alone, Melby’s claim under the Virginia
FOIA may be dismissed.
Nevertheless, Melby’s Virginia FOIA claims also fail for many reasons, several of which
are noted here. First, Melby fails to indicate in his allegations that he made a formal request for
information under Virginia FOIA and that request was denied by a public body or an appropriate
custodian. See generally Va. Code Ann. § 2.2-3704 (West 2022). Instead, Melby simply asked
both Defendant Chandler and Defendant Murray for Defendant Chandler’s badge number and
asked Defendant Evans for his badge number and was allegedly denied that information.
Therefore, the Court fails to discern and Melby fails to plausibly allege that any right he may have
under the Virginia FOIA was denied. Next, even if Melby had made a formal Virginia FOIA
request to the appropriate agency and was denied the information about the badge numbers,? Melby
has not followed the appropriate procedure set forth by the statute for obtaining relief. See Va.
Code Ann. § 2.2-3713 (West 2022). Finally, the Virginia FOIA specifically excludes incarcerated
felons, such as Melby, from having any rights under the Act. Va. Code Ann. § 2.2-3703(C) (West
2022) (“No provision of this chapter . . . shall be construed to afford any rights to any person (i)
incarcerated in a state, local or federal correctional facility... .”) Accordingly, Melby fails to
allege that Defendants Chandler, Murray, or Evans deprived him of any protected right he may
have under the Virginia FOIA. Accordingly, Claim Five will be DISMISSED WITH PREJUDICE
for failure to state a claim and as legally frivolous.
° It seems readily apparent that this information does not exist. Melby himself alleges that
Defendant Murray twice informed him that “Newport News Sheriff's Officers do not have badge
numbers.” (ECF No. 23, at 1.)
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