United States District Court, Western District of Virginia, Roanoke Division
HAROLD E. STRICKLAND, Plaintiff
MIKE MONDULE, et al., Defendants
REPORT AND RECOMMENDATION
Pamela Meade Sargent United States Magistrate Judge
The pro se plaintiff, Harold E. Strickland, is a Virginia Department of Corrections, (“VDOC”), inmate, who previously was an inmate at the Danville City Jail, (“Jail”). In this case, Strickland has sued Danville Sheriff Mike Mondule, the Jail and multiple Sheriff’s Department officers under 42 U.S.C. § 1983 and state law claims, alleging that, while he was in segregation for a six-month period at the Jail, he was denied out-of-cell exercise with the exception of two occasions. This case was tried to the court on April 17, 2014. The matter 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.
Strickland brings this action against defendants Mondule, the Jail, Sgt. Bryant Booth, Sgt. Richard Callahan, Sgt. Jarrett Milam, Sgt. Mike Bray and Chief Deputy Steve Salmon, alleging that he was denied out-of-cell exercise while he was held at the Jail. Strickland testified that he was held at the Jail in segregation in D block from November 7, 2010, to April 29, 2011. According to Strickland, he was placed in segregation because he was charged with having cigarettes on him when he went through intake at the Jail. Strickland claims that this disciplinary charge was never heard, but he admits that he never contested being held in segregation because his medical condition, Crohn’s disease, would put him at risk for being injured if he were to have been housed in general population. Strickland explained that the Crohn’s disease caused him to expel very foul smelling gas. Because of this, Strickland said that he preferred to remain in segregation in a cell by himself.
Strickland testified that, while being housed at the Jail, he was given out-of-cell recreation on only two occasions: on November 10, 2010, and, again, around March 21, 2011. Strickland testified that he was never offered out-of-cell recreation on any other occasion. He also specifically testified that he never refused out-of-cell recreation if it was offered to him. Strickland further testified that, if any of the Jail’s log books or records showed that he was offered and refused recreation, they were in error. In fact, Strickland testified that it appeared many of the entries in the Jail’s log book had been falsely created to make it appear as if he had been offered and refused exercise.
Strickland also testified that he filed “multiple” grievances while incarcerated at the Jail that were never responded to by Jail officials. Strickland stated that the Jail’s Grievance Procedure did not inform him as to what he should do if the Jail did not respond to a grievance. The Jail’s Grievance Policy, (“Policy”), was admitted into evidence as Plaintiff’s Exhibit No. 23. The Policy states that grievances must be in writing on a specific “grievance form, ” signed by the inmate and returned to the sergeant on duty. The sergeant, or other Jail supervisor if the sergeant is the subject of the grievance, will then respond to the grievance. The Policy does not set any deadline for filing a grievance or for the response to the grievance. The Policy allows an appeal of the sergeant’s decision to the Jail Administrator, but does not set any deadline for filing an appeal. There is no further appeal past this step. The Policy states: “The procedure for grievances must be followed completely.” Strickland testified that he filed three or four grievances while at the Jail concerning the lack of out-of-cell exercise, to which Jail officials did not respond. In particular, Strickland testified that he filed a grievance on January 27, 2011, because another segregation inmate was taken to recreation, and Officer Jones refused to allow Strickland recreation. Strickland said that he never received any response to this grievance. Strickland stated that he remembered this specific grievance even though no one responded to it because he was mad that he was not allowed recreation on that day.
Strickland testified that Plaintiff’s Exhibit No. 13 was the only grievance he filed regarding the lack of recreation to which the Jail actually responded. Strickland admitted that this grievance was not filed until January 10, 2013 – almost two years after Strickland completed his stay at the Jail and almost two months after filing this suit. Strickland’s grievance was denied initially by Sgt. Callahan and on appeal by Chief Deputy Salmon. In response, both Callahan and Salmon stated that the Jail’s records showed that Strickland had been offered – and had refused – recreation.
Strickland testified that Crohn’s disease often caused him to become constipated. He said that he needed to exercise regularly to help his bowels to move. Strickland stated that, while he was incarcerated at the Jail, the lack of exercise caused him to go seven to eight days without a bowel movement. Strickland testified that this constipation resulted in him getting a severe bacterial infection in his intestines, from which he suffered the entire period of his incarceration at the Jail. He stated that this infection caused him great abdominal pain and suffering. He stated that he often would bleed when attempting to have a bowel movement. He also stated that he often would vomit after eating because his intestines had become obstructed and could not move his food.
Toney Leon Childress testified at the hearing by video conference. Much of Childress’s testimony revolved around whether he had signed an affidavit that Strickland previously had filed with the court. Regardless, Childress testified that he was held in segregation in D block at the Jail for three to four weeks while Strickland was housed there. Childress stated that he proofed many of the grievances that Strickland filed while at the Jail, including grievances complaining of the lack of out-of-cell exercise. Childress stated that he would proof these grievances and then Strickland would give them to Sgt. Callahan.
Childress testified that he was never offered any out-of-cell recreation while held in segregation in D block in the Jail. “As far as getting out of the cell, that wasn’t going to happen” while in D block, Childress said. According to Childress, he also was housed for a period of time at the Jail in C block. He said that, while housed in C block, there were periods of time when he was not offered any recreation. He also testified that, while he was housed in C block, there was never an occasion when everyone in the block took recreation at the same time. Childress also testified that the Jail had two exercise rooms, with one larger than the other. He stated that the 15 to 20 people housed in a block at the Jail could not fit into these two rooms to exercise at the same time. Childress also testified that, in his experience, only one block went to recreation at a time.
Sgt. Mike Bray testified that he had worked at the Jail for 13 years, with six to seven of those years at his current rank of sergeant. According to Bray, he has supervised recreation the entire time that he has worked at the Jail. Bray explained that inmates housed in segregation were in their cells 24 hours a day, and inmates housed in general population were out of their cells and had access to the day room in their block from 7 a.m. to 11 p.m. every day. Bray testified that the Jail’s policies and procedures required inmates housed in segregation to receive only one hour of recreation time a week no matter how long they had been held in segregation. Bray testified that the Jail staff did not have any routine or assigned time of the week during which inmates in segregation were allowed out-of-cell recreation. Bray said that the shift commander would make the decision who would receive recreation and when it would be offered. Bray admitted that, in his signed, sworn Answers to Interrogatories filed with the court on October 22, 2013, he said that he did not know who would make this decision. Bray’s discovery responses on file with the court confirm this. See Docket Item No. 97 at 5.
Bray testified that the Jail kept a log book that showed who was offered recreation and when. He also stated that the Jail staff logged when an inmate refused recreation. Bray said that the Jail’s log book should show if an inmate was offered recreation, the time the inmate was pulled from the cell and the time the inmate returned to the cell or that the inmate refused recreation. Bray also testified that Jail workers were not allowed to allow male and female inmates to take recreation at the same time. Bray admitted, however, that copies of the Jail’s log books presented to him in court showed male and female inmates taking recreation at the same time on at least two occasions. Bray explained that the records were either wrong or that someone had pulled male and female inmates for recreation at the same time in violation of Jail policy. He said he was not aware of any occasion on which male and female inmates had taken recreation together.
Bray testified that the Jail was not understaffed when Strickland was housed there and that recreation was offered as required regardless of staffing levels. He also testified that he did not know of any reason preventing Strickland from receiving recreation when he was housed at the Jail in segregation.
Sgt. Bryant Booth testified that he had worked at the Jail for the past 15 years and had supervised inmates taking recreation for this entire time. He stated that he also had worked at the Jail for a 10-year period earlier in his career. Booth testified that Jail policy required inmates held in segregation to have one hour of out-of-cell recreation each week. Booth said that he was trained regarding the Jail’s recreation policy when he first began working at the Jail. Booth said that when he started his shift for the week he would look at the Jail’s log book to see which inmates had received recreation that week and which inmates he was required to offer recreation. Booth stated that the inmates themselves would often tell him if they had not received recreation. Booth testified that any refusal of recreation should be logged and that there was no acceptable reason for not logging an inmate’s refusal to take recreation.
Booth also testified that, in his 25 total years working at the Jail, he had never witnessed male and female inmates together in recreation. Booth admitted, however, that copies of the Jail’s log books presented to him in court showed that he had made entries in June of 2010 showing that male and female inmates had taken recreation together on at least two occasions.
Booth testified that he had never denied recreation to an entire block of the Jail. Booth also said that recreation was never offered on weekends or holidays because the Jail was staffed by only five or six workers a shift on these days.
Sgt. Richard Callahan testified that he has worked at the Jail for 19 years and has supervised recreation for this entire period. Callahan said that Jail policy requires all inmates, whether housed in segregation or in general population, to receive one hour of recreation time each week. Callahan said that the only reasons he knew of to justify denying recreation to segregation inmates would be for safety or security reasons or in an emergency. While Callahan conceded that the Jail was, on occasion, short on manpower, he stated that the Jail never failed to provide recreation to its inmates because of a lack of manpower. Callahan testified that he could not recall any reason why Strickland would not have been offered out-of-cell exercise when he was at the Jail.
Callahan testified that the sergeant on duty on any given weekday would decide who would receive recreation and when they would receive it. He said that there was no set schedule for what block went to recreation when. Callahan said that when he started work for the week he looked at the log book and gave recreation to those inmates who had not yet received recreation for the week. Callahan testified that he reviewed the recreation log records regularly, and he would know whether an inmate had or had not been offered recreation in any given week. Callahan stated that he did not recall ever denying recreation for the inmates housed in segregation or that any block of the Jail was denied recreation for any period of time. Callahan testified that he knew of no reason why an inmate should be denied out-of-cell recreation.
Callahan stated that the Jail’s log book should show every time an inmate was offered recreation and whether the inmate went to recreation or refused to go. Callahan admitted that in his signed, sworn Answers to Interrogatories he incorrectly stated that Jail policy only required an inmate’s refusal to take recreation to be logged. Callahan’s discovery responses on file with the court confirm this. See Docket Item No. 95 at 2.
Callahan testified that Strickland was placed in segregation at his request upon intake based on his Crohn’s disease. Callahan admitted that Strickland was found in possession of cigarettes and a lighter upon his intake at the Jail, but he said it was not uncommon for a person to come in to the Jail in possession of prohibited products. Callahan testified that he did not charge Strickland with any disciplinary infraction as a result of his possession of cigarettes and a lighter on intake.
Sgt. Jarrett Milam testified that he has worked with the Danville Sheriff’s Office for the past 12 years. Milam stated that his position at the Jail had included making decision about providing recreation to inmates since 2003. Milam testified that Jail policy required that all inmates receive one hour of out-of-cell recreation each week. Milam also testified that Jail policy required the Jail staff to offer recreation to every inmate every week and to log whether the inmate participated in recreation or refused. Milam specifically testified that recreation was only logged when it was offered to an inmate. He stated that, if there was no log entry for a Jail block or inmate on a specific date, that block or inmate was not offered recreation on that date.
Milam said that recreation was offered only on the day shift on weekdays, Monday through Friday. Milam testified that it was possible that an inmate might not receive recreation if he or she were restricted for disciplinary reasons. Milam stated that he was not aware of any Jail employees ever being disciplined for not properly logging recreation. Milam testified that, while Strickland was at the Jail, he requested Strickland to move to general population on more than one occasion. Each time, Milam said, Strickland refused due to his intestinal problem.
Lt. Col. Steve Salmon testified that he had worked with the Danville Sheriff’s Office for 38 years. Salmon stated that Jail policy called for recreation to be offered as manpower allowed. He said that all Jail employees had been trained on Jail policies regarding recreation and that all Jail employees should have known to log whether an inmate accepted or refused recreation. Salmon stated that, if recreation was not offered, there should not be any documentation. Salmon admitted that, if the ...