United States District Court, Western District of Virginia, Roanoke Division
REPORT AND RECOMMENDATION
Pamela Meade Sargent United States Magistrate Judge
The pro se plaintiff, Adrian Nathaniel Bacon, is a Virginia Department of Corrections, (“VDOC”), inmate housed at Red Onion State Prison, (“ROSP”). This case was tried to the court on June 5, 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.
I. Facts and Procedural Background
Bacon brings this civil rights action pursuant to 42 U.S.C. § 1983 for violation of his Eighth Amendment right to be free from cruel and unusual punishment against Correctional Officer C. Rose. Bacon claims that Rose purposefully closed his cell door’s tray slot on his left hand, injuring three of his fingers.
At trial, Bacon testified that he was being housed at ROSP on June 19, 2013. Bacon said that he had been an inmate at ROSP housed in segregation since October 2010. On June 19, Bacon said, he was standing at his cell door with his left hand on the ledge just below the tray slot talking to Rose. Bacon said the tray slot had been left open after receiving his supper tray. Bacon said that, when Rose saw that the tray slot was open, Rose slammed the tray slot shut without any warning. Bacon said that he tried to pull his left hand out of the way of the sliding tray slot cover, but the cover caught his fingers, cutting them. Bacon said that Rose simply turned and walked away.
Bacon at first testified that he knew that Sgt. Deel was in the cell block on the bottom tier, and he kicked on his cell door to gain Deel’s attention after he was injured. When Deel came to his cell door and saw Bacon bleeding, Deel said he would call medical, Bacon said. Nurse Mullins and Nurse Cox then came to Bacon’s cell to assess his injuries, Bacon said.
Bacon testified the cuts to his fingers healed after about two weeks, with the only residual being a scar on his ring finger.
According to Bacon, he and Rose had a verbal dispute earlier in the day on June 19. Bacon admitted that he had the window on his cell door covered earlier in the day, in violation of ROSP rules. Bacon further said that Rose told him to uncover the window and that he would not get a shower that day as punishment for covering his window. While Bacon testified that Rose tried to antagonize him by telling him that he was going to deny him a shower, Bacon did not provide any evidence of any threat or even a particularly provocative comment made by Rose. Bacon said that, when Rose began pulling inmates for showers that day, Rose did not pull Bacon. Bacon stated that he became upset because covering his cell door window did not justify taking away his shower.
At this point, Bacon testified that he kicked his cell door to get Deel’s attention so he could complain about the denial of a shower. Bacon said that Rose returned to his cell and told him to stop kicking his cell door stating, “you are not getting your shower.” It was then, Bacon said, that Rose saw his hand in the open tray slot and slammed the tray slot cover shut.
Rose also testified at the June 5 trial. According to Rose, he worked as a Correctional Officer at ROSP on June 19, 2013. Rose stated that he was collecting supper trays when Bacon refused to return his supper tray. At one point, Rose testified that he went to Bacon’s cell, opened the tray slot and Bacon refused to surrender his supper tray. Rose said that he then shut the tray slot cover back and was not aware Bacon’s fingers were in the way of the tray slot cover.
At a later point in his testimony, Rose agreed that the tray slot on Bacon’s cell door was open when he approached it to retrieve Bacon’s supper tray. When Bacon refused to return his supper tray, Rose said that he tried to close the tray slot cover. Rose said that he noticed Bacon jerk his hand away and that Bacon showed him that his fingers had been cut. Rose said that he then went and told Sgt. Deel what had happened. He said he then went to Lt. Payne’s office to notify him of what had happened.
On cross-examination, Rose agreed that ROSP policy required the correctional officers to close the cell door tray slot after giving an inmate his meal. Rose then, again, changed his testimony on this point to state that, when he arrived at Bacon’s cell door to retrieve his supper tray, he opened the tray slot.
Rose stated that he did not recall having any verbal argument with Bacon earlier that day. He specifically denied trying to antagonize Bacon. Rose testified that he did not know that Bacon’s hand was in the way when he attempted to close the tray slot. Rose said that he was not present at Bacon’s cell when medical personnel responded to assess his injuries.
Bacon specifically denied that he had refused to return his supper tray or that he was attempting to hold the tray slot cover open. Bacon said that, if he had done either of these acts, he should have been ...