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Carty v. Scarberry

United States District Court, Fourth Circuit

January 30, 2014

CHRIS CARTY, Plaintiff
v.
P. SCARBERRY, et al., Defendants

REPORT AND RECOMMENDATION

Pamela Meade Sargent United States Magistrate Judge

The pro se plaintiff, Chris Carty, is a Virginia Department of Corrections, (“VDOC”), inmate currently housed at Red Onion State Prison, (“ROSP”). This matter is before the under Dated: the plaintiff’s motion for entry of preliminary injunctive relief preventing the defendants and their agents from taking any retaliatory action against the plaintiff for filing this lawsuit. (Docket Item No. 47) (“Motion”). The Motion is before the undersigned magistrate judge by referral pursuant to 28 U.S.C. § 636(b)(1)(B). The undersigned now submits the following report and recommended disposition.

I. Facts

Carty brings this civil rights action against P. Scarberry, ROSP Food Service Director, and R. C. Mathena, ROSP Warden. Carty claims that these defendants have refused to provide him with the proper medically prescribed diet. On July 17, 2013, Carty filed a motion for preliminary injunctive relief. (Docket Item No. 15). By Memorandum Opinion & Order entered October 9, 2013, the court refused Carty’s motion insofar as it sought entry of a preliminary injunction ordering that the defendants provide him with a “vegetarian cardiac diet.” That motion also claimed that Carty was being subjected to cruel and unusual punishment through inhumane conditions of confinement and other actions taken by ROSP employees in retaliation for filing this action against the defendants. Carty appeared and testified at an October 23 evidentiary hearing on these additional claims for injunctive relief. By Report and Recommendation entered December 16, 2013, (Docket Item No. 46), the undersigned recommended that the court deny Carty’s motion for entry of a preliminary injunction.

Subsequent to the filing of that Report and Recommendation, Carty filed an affidavit from himself and an affidavit from fellow ROSP inmate William Sally on December 20, 2013. (Docket Item No. 47). In these affidavits, which are sworn to under penalty of perjury, Carty and Sally claim that on December 10, 2013, all of Carty’s property was removed from his cell, and Carty was badly beaten and seriously injured by ROSP correctional officers in retaliation for filing this lawsuit. The undersigned ordered that these affidavits be considered as an additional motion for injunctive relief and ordered the defendants to respond to the Motion.

In Carty’s affidavit, he claims that Officers C. Rose and M. Wood, Lt. P. Payne, Sgt. J. Hall and Sgt. Ingle on December 10, 2013, beat him by stomping him with their feet and punching him with their fists. He claims this beating left him with a knot on his head, a fractured thumb, a busted nose, a busted lip, and bruises and cuts on his face, back, shoulders, wrists, legs, neck and stomach. Carty claims that these wounds are becoming infected because he is being denied medical care. He further claims that pepper spray was used on him and that all his property, including his legal documents, were taken. Carty claims that he was placed in Cell No. 302 with a toilet that has not worked since December 10, 2013. Carty further claims that he has had no drinking water and that the cell has no shelves, no desk and no mattress. He claims that he has no toothbrush, socks, shoes or change of clothing. Carty claims all this has been done in retaliation for filing this lawsuit and for pursuing the earlier motion for injunctive relief against alleged retaliation.

In Sally’s affidavit, he claims that on December 9, 2013, he was housed in ROSP Cell No. 307, next door to Carty in Cell No. 306, when he overheard Sgt. J. B. Hall tell Carty that he was going to send Carty to the hospital if Carty did not stop filing lawsuits. Sally also claims that on December 10, 2013, he saw Hall stop at Carty’s cell and “threaten, provoke and harass” Carty. Sally claims that he heard Hall and Carty “bickering” back and forth and then, without any reason, Hall told Carty he was going to place him on strip cell status.

Sally claims that Rose, Wood, Payne and Ingle then arrived at Carty’s cell with pepper spray, which Hall sprayed into Carty’s cell for no reason. Sally claims that, after the pepper spray was used on Carty, he complied with Payne’s order to back up to the tray slot to be restrained. Sally further claims that, after Carty’s cell door was opened, Wood and Rose pulled Carty, who was kneeling on his knees, from his cell. Sally states that he witnessed the officers removing all of Carty’s property from his cell. Sally claims that he saw Rose and Wood “dig their fingers in … Carty’s collarbone … and pull both his arms back applying force for no reason….” Sally states that the officer kept telling Carty to stop resisting even though Carty was not resisting.

Sally claims that the officers then pushed Carty face down on the floor. He claims that Payne started grabbing and pulling Carty’s head, while Hall grabbed the back of Carty neck, “applying more needless use of force.” He claims that Rose and Wood were bending Carty’s arms and fingers back for no reason other than to inflict pain. Sally also claims that the officers placed a spit mask on Carty for no reason.

Sally claims that the officers “carried” Carty back into Cell No. 306 and began beating him. In particular, Sally’s affidavit states: “Then I heard the constant beating and assault upon … Carty with … Carty screaming for help.” Sally claims this beating lasted approximately 15 minutes. Sally claims that the officers then brought Carty back out of Cell No. 306 with blood running down from his head area onto the floor and dragged him to Cell No. 302.

On January 13, 2014, Carty filed additional documents, (Docket Item No. 55), again claiming that he was “badly physically beaten by prison officials” on December 10, 2013, leaving him with a swollen fractured thumb, busted nose, busted lip, knot on his head and cuts and bruises all over his face, neck, shoulder, back, chest, arms, stomach, wrists, knees, legs and ankles. In a sworn affidavit dated December 30, 2013, (Docket Item No. 55, Att. No. 1), Carty states that, after he was pulled back into Cell No. C-306, Ingle, Hall, Payne Wood and Rose “then started to physically brutalize me by assaulting me, punching, slapping me in my face and body - kicking and [stomping] on and all over me -spitting on me -standing on me – and applying unnecessary force upon my arms and fingers….” In this affidavit, Carty states that the alleged assault lasted “about” 15 minutes. He claims that when he was again removed from Cell No. C-306, he was bleeding from his face and mouth. Carty states he was then “dragged on the floor” to Cell No. C-302. Carty again complained that he had been placed in a cell with no working toilet, with feces in toilet and urine on the floor, with no drinking water, with no soap, no toothpaste, no toothbrush, no socks, no shoes and no change of clothing. Carty again complained that he was being denied medical treatment for injuries he suffered on December 10.

Included in these documents are a number of handwritten Informal Complaint forms, all signed by Carty and dated December 25, 2013, claiming that he is being denied medical treatment for injuries he alleged that he suffered on December 10. (Docket Item No. 55, Att. No. 2 at 6-9). On one of these forms, Carty complains that the prison physician, Dr. Smith, told him that he could not see anything wrong with his thumb, but that he would refer Carty for an x-ray. Also, Carty complains that Dr. Smith and several nurses told him that they could not see any cuts and bruises on his body.

Included in these documents is another affidavit from Sally signed under penalty of perjury. (Docket Item No. 55, Att. No. 2 at 1-3). This affidavit repeats the allegations in Sally’s other affidavit, including claims that officers used OC spray on Carty for no reason, that officers brutally beat Carty while he screamed for help for about 15 minutes and that Carty had blood coming from his face when he was taken to Cell No. C-302.

On January 16, 2014, Carty filed another affidavit made under penalty of perjury. (Docket Item No. 57). In this affidavit, Carty states that ROSP Investigator Bentley allowed Carty to watch video recordings taken of the December 10 incident. Carty states that the recording does not contain any threat by him to throw feces on prison staff. Carty also states that the recording does not show him trying to assault or bite the officers or being disruptive. Carty again claims that his thumb was broken, his lip busted and his body bruised and cut in the incident.

Carty also has filed a declaration made under penalty of perjury by Tyran Gardin. (Docket Item No. 55, Att. No. 2 at 4). Oddly, Gardin’s declaration is almost a verbatim copy of Sally’s affidavits. In this declaration, Gardin states that, while standing at his cell door, Cell No. C-321, on December 9, 2013, he heard Hall tell Carty, who was in Cell No. C-306, that he would send him to the hospital if he kept filing lawsuits. Gardin states that, on December 10, he observed Hall use OC spray on Carty for no reason. Gardin states that Carty then complied with orders to be restrained to be removed from the cell.

Gardin states that, after Carty was removed from the cell, he saw Wood and Rose push Carty face down onto the floor and Payne and Hall pulling Carty’s head backward. Gardin, too, claims that, after the officers returned Carty to Cell No. C-306, he heard the officers assaulting Carty and Carty screaming for help for about 15 minutes. Gardin also states that when Carty was moved from Cell No. C-306 to Cell No. C-302, the officer dragged him across the floor with blood running from his face.

Carty also has submitted a declaration made under penalty of perjury by Corey Smith, (Docket Item No. 55, Att. No. 2 at 23). Oddly, Smith’s declaration also is almost a verbatim copy of Sally’s and Gardin’s, including some of the same misspellings. Smith states that while standing at the door of his cell, No. C-308, at ROSP on December 9, 2013, he heard Hall tell Carty that if Carty did not stop filing lawsuits, Hall was going to send Carty to the hospital. Smith states that Hall used OC spray on Carty for no reason. Smith also states that Payne and Hall pulled Carty’s head backward while Rose and Wood were holding him face down on the floor. Smith also claims that, after the officers took Carty back into Cell No. C-306, he heard them ...


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