United States District Court, W.D. Virginia, Roanoke Division
July 24, 2015
BYRON VASQUEZ-PEREZ, Plaintiff,
MR. HUFF, et al., Defendants.
Hon. Jackson L. Kiser Senior United States District Judge
Byron Vasquez-Perez, a Virginia inmate proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983, naming various staff of the Red Onion State Prison ("ROSP") as defendants. This matter is before me for preliminary review, pursuant to 28 U.S.C. § 1915A. After reviewing Plaintiffs submissions, I dismiss all claims and defendants without prejudice except as to Lt. Day and Counselor Stewart for keeping Plaintiff in administrative segregation for not speaking English.
Plaintiff alleges that someone forged his name to a suicide note, and consequently, staff moved Plaintiff to a stripped-cell in segregation under suicide watch for twenty-seven days. Plaintiff learned when he returned to his cell that ROSP staff had left his cell door open, and his personal property was missing. Plaintiff also complains that he cannot leave administrative segregation via ROSP's "Stepdown Program" because the educational materials are available only in English, which Plaintiff does not speak. Consequently, Plaintiff allegedly remains in administrative segregation on Lt. Day and Counselor Stewart's orders because he cannot speak English and no programming is offered to him to learn English.
Plaintiffs temporary twenty-seven day stay in a stripped cell for suicide watch does not describe an unconstitutional condition of confinement, and his claims about the loss of personal property do no sound in 42 U.S.C. § 1983. See, e.g., Sandin v. Conner, 515 U.S. 472, 486-87 (1995); Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527, 538-39 (1981) (overruled in irrelevant part by Daniels v. Williams, 474 U.S. 327, 330-31 (1986)); Beverati v. Smith, 120 F.3d 500, 503 (4th Cir. 1997). Plaintiff possesses a post-deprivation remedy under Virginia law besides the inmate grievance procedures, the Virginia Tort Claims Act ("VTCA"). See Va. Code § 8.01-195.3. Verbal abuse or harassment do not rise to the level of an Eighth Amendment violation. See, e.g., Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979). Accordingly, except for Plaintiffs claims about being held in long-term administrative detention on orders from Lt. Day and Counselor Stewart for not being able to speak English, all other claims are dismissed without prejudice for failing to state a claim upon which relief may be granted. See, e.g., Incumaa v. Ozmint, __ F.3d __, 2015 WL 3973822, 2015 U.S. App. LEXIS 11321 (4th Cir. 2015).