United States District Court, W.D. Virginia, Roanoke Division
GLEN E. CONRAD, Chief District Judge.
Adib Eddie Ramez Makdessi, a Virginia inmate proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging that the defendant prison officials violated his constitutional rights by forcing him to carry his television in the transportation van, despite his shoulder and back problems, and hampered his efforts to prove his innocence by confiscating legal documents and a law book and denying him access to the law library and a typewriter. Upon review of the record, the court finds that the action must be summarily dismissed.
On November 6, 2013, officials transferred Makdessi and other inmates from the protective custody unit at Keen Mountain Correctional Center ("KMCC") to the protective custody unit at the newly opened River North Correctional Center ("RNCC"). According to Makdessi, Warden Fleming and his Assistant Warden Clary ordered that each inmate would hold his television on his lap during the three-hour bus ride. Makdessi complained to the transport officers, Lee and Bostic, that he could not hold his television because he had two injured shoulders and arthritis in his back and had not received his pain medication. The officers allegedly said they knew of his medical problems, but had orders to have him hold his television during the ride.
Makdessi says the weight of his 30-pound television caused the hand cuffs to dig painfully into his wrists and his position caused pain in his back and shoulders and made his thumbs go numb. He allegedly called for help, but officers could not hear over the loud music. Makdessi alleges that, when the bus reached RNCC, he was in so much pain, he could not get out of the seat until an officer lifted the television off of him.
During the RNCC medical intake examination, Makdessi told the nurses about his pain and showed them his swollen wrists. His blood pressure was allegedly so high that they thought he was having a heart attack. After he sat and relaxed for awhile and took his pain medication, his blood pressure went back to normal. He alleges that the bus ride conditions "caused more injury to [his] shoulders and to [his] wrists and thumbs are still numb and back pain increased." (Compl. 3.)
When Makdessi received his three boxes of legal materials on November 7, 2013, they were so disorganized that it took him three weeks organize them. He also discovered several items were missing, including a law book, "Prisoner's Guide to Survival." He had used this book for five years, and it was covered with notes about his legal research and exhibits. He learned that RNCC Property Officers Felts and Simpson had confiscated the book as contraband, because it had been altered, with names blacked out and the spine colored. Makdessi appealed the confiscation of his book, but ombudsmen Walls and Murphy and VDOC administrator George Hinkle upheld the action under prison policy. Lt. Davis and Officer R. Phillips at KMCC had allegedly warned Makdessi before his transfer that RNCC officials would confiscate his law book because people were tired of his complaints and lawsuits.
Makdessi complains that his missing book and documents, and limited access to law library materials and typewriters at RNCC,  hampered his litigation efforts. Makdessi has two lawsuits pending in this court (this case and Case No. 7:13CV00097) and an appeal pending in the United States Court of Appeals for the Fourth Circuit. He also asserts that he has filed a "§ 2244 motion to proceed with [his] actual innocence" in the Fourth Circuit. (Compl. 5.) Among the legal materials missing after his transfer were copies of documents from his 2010 federal habeas corpus action, which the Fourth Circuit required and "new evidence and exhibits for the § 2244 proceeding." (Id.) Makdessi was able to obtain copies of the new evidence and exhibits from his sister and to purchase copies of the habeas documents from the habeas court, although this process delayed litigation of the § 2244 motion.
In his § 1983 complaint, Makdessi sues Fleming, Clary, Phillips, Bostic, Lee, Felts, Simpson, Davis, Hinkle, Wright, Walls, and Murphy, seeking monetary damages and a transfer to another protective custody unit. He also sues the assistant attorney general (R. Vorhis) who represented the defendants in Makdessi's prior lawsuit and the RNCC warden (B. Wright) for not preventing or correcting the problems with access to legal materials at RNCC.
The court is required to dismiss any action or claim filed by a prisoner against a governmental entity or officer if the court determines the action or claim is frivolous, malicious, or fails to state a claim on which relief may be granted. 28 U.S.C. § 1915A(b)(1). In order to state a claim in any federal civil action, the plaintiffs "[f]actual allegations must be enough to raise a right to relief above the speculative level, " to one that is "plausible on its face, " rather than merely "conceivable." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). To state a cause of action under § 1983, a plaintiff must establish that he has been deprived of rights guaranteed by the Constitution or laws of the United States and that this deprivation resulted from conduct committed by a person acting under color of state law. West v. Atkins , 487 U.S. 42 (1988).
1. Bus ride
The Eighth Amendment protects prisoners from cruel and unusual living conditions, but "restrictive and even harsh" conditions "are part of the penalty that criminal offenders pay for their offenses against society." Rhodes v. Chapman , 452 U.S. 337, 347 (1981). To prove a constitutional claim concerning a particular prison living condition, Makdessi must show that each defendant prison official acted with deliberate indifference with regard to that condition that each defendant knew, subjectively, the condition presented a substantial risk of serious harm and nevertheless failed to take "reasonable measures" to alleviate the risk of harm. Farmer v. Brennan , 511 U.S. 825, 835-37 (1994). Makdessi must also show that he has sustained a serious or significant mental or physical injury as a result of the challenged condition. Strickler v. Waters , 989 F.2d 1375, 1380-1381 (4th Cir. 1993).
Even if Makdessi could show that he suffered some serious injury from the bus ride conditions, the court concludes that his allegations do not support a finding of deliberate indifference. Makdessi asserts that Fleming, Clary, Lee, and Bostic knew of his shoulder problems from his prior lawsuit, in which he claimed that officials aggravated his shoulder pain by forcibly cuffing his hands behind his back. For the bus ride, however, the officers cuffed Makdessi's hands in front of his body. He does not state any facts from which any of these officers knew of a substantial risk that merely holding his television on the bus would aggravate his shoulder pain or cause ...