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Makdessi v. Fleming

United States District Court, W.D. Virginia, Roanoke Division

September 18, 2014

L. J. FLEMING, WARDEN, ET AL., Defendant(s)


GLEN E. CONRAD, Chief District Judge.

Adib Eddie Ramez Makdessi, a Virginia inmate proceeding pro se, filed this civil rights action under 42 U.S.C. § 1983, and the case is now ripe on the defendants' motion for summary judgment. Upon review of the record, the court finds material facts in dispute as to Makdessi's claims that, to retaliate against Makdessi for a pending lawsuit, one group of defendant prison officials cuffed him behind his back, knowing it would cause serious pain to his injured shoulder. For the reasons stated, the court denies summary judgment as to this claim, but grants summary judgment as to Makdessi's other contentions.


In November 2012, Makdessi was incarcerated in the protective custody unit at Keen Mountain Correctional Center. At that time, Makdessi was pursuing a § 1983 complaint in which he alleged that, in December 2010 at Wallens Ridge State Prison, he was raped by his cell mate and attacked by other gang members and that the defendant officers either solicited or deliberately failed to intervene. See Makdessi v. Fields, et al., Case No. 7:11CV262. By November 2012, the court had denied summary judgment in part, referred the remaining claims to the magistrate judge, and obtained pro bono counsel for Makdessi.[1]

In Feburary 2013, Makdessi filed the present § 1983 action, asserting that the defendant prison officials had retaliated against him for the pending lawsuit in various ways. Liberally construing his amended complaint filed in May 2013, these are the issues he has brought before the court:

1. On November 29, 2012, four prison officials "connected to the old lawsuit" (Major Gallihar, Lt. Fields, Lt. McQueen, and Assist. Warden Kiser) retaliated against Makdessi by sending three officers from Red Onion State Prison (Officers Ayers, Pope, and Johnson) to "threaten[ ] [him] to drop the old ongoing lawsuit"[2] by (a) shaking down his cell; (b) intentionally reinjuring Makdessi's shoulder by cuffing his hands behind his back, although other inmates were cuffed to the front, and (c) and throwing away documents and legal supplies from the lawsuit. (Amend. Compl. 1, ECF No. 19-2.) Keen Mountain's Officer Yates assisted in these actions which were "allowed and encouraged" by Warden Fleming, Assistant Warden Clary, Protective Custody ("PC") Unit Manager Sykes, PC Lt. Owens, and PC Officer Phillips, [3] while Major Kelly supervised and did not intervene. (Id.)

2. Before the search, Makdessi "was made to strip down naked, and made to bend over, and jump up and down, and squat down, and repeat the process... and do things that were very uncomfortable and sexual in nature, and painful." (Id. 2.)

3. Officers at the shakedown did not ensure that Makdessi received medical treatment after his shoulder was reinjured during the search.

4. On March 12, 2013, Defendant Owens had him "sit on a hard metal chair in his office for 7 hours [straight]" in spite of his back injury. (Id. 5.)

5. On March 13, 2013, Makdessi was "strap[p]ed to an electrical shock box on [his] back and strap[p]ed tight to [his] waist in order to cause [him] pain and make [him] paranoid" so that he could not concentrate on his court case that day. (Id.)

6. After Makdessi complained that Officer Phillips had sexually assaulted and harassed him related to the strip search on November 29, 2012, Owens retaliated by putting Makdessi in segregation from April 16 to 25, 2013, without a disciplinary charge.

Makdessi also asserts that the alleged instances of retaliation present independent violations of his constitutional rights under the First, Fourth, Eighth, or Fourteenth Amendments. The defendants have filed answers (ECF Nos. 45 & 60) and a motion for summary judgment (ECF No. 61, supported by numerous affidavits. Makdessi has filed two verified responses to their arguments and evidence (ECF Nos. 46 and 66), making the defendants' motion ripe for consideration.[4]

II. Discussion

Makdessi's primary contention in this lawsuit has been that the defendants' actions during the shakedown on November 29, 2012, and thereafter were taken in retaliation for his then-ongoing lawsuit. Prison officials may not punish an inmate for exercising his constitutional right to access the court. Hudspeth v. Figgins , 584 F.2d 1345, 1347 (4th Cir. 1978). On the other hand, retaliation claims by prisoners against prison officials " regarded with skepticism, lest federal courts embroil themselves in every disciplinary act that occurs in state penal institutions." Adams v. Rice , 40 F.3d 72, 74 (4th Cir. 1994). An inmate must present more than "naked allegations of reprisal." Id . He must state specific facts to establish that (a) in response to his exercise of a constitutionally protected right, (b) the defendant took some action that (c) adversely impacted or injured him and his ability to exercise his constitutional right. Id . He must demonstrate that his exercise of his constitutional right was a "substantial" or "motivating" factor behind the allegedly retaliatory action. Wagner v. Wheeler , 13 F.3d 86, 90-91 (4th Cir. 1993) (citing Mt. Healthy City School District Board of Education v. Doyle , 429 U.S. 274, 287 (1977) (requiring plaintiff to show "a causal relationship between the protected expression and the retaliatory action"). Mere "temporal proximity" between the inmate's protected activity and the official's allegedly ...

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