United States District Court, W.D. Virginia, Roanoke Division
ROBERT R. JONES, Plaintiff,
T. KISER, et al., Defendants.
REPORT AND RECOMMENDATION
PAMELA MEADE SARGENT, Magistrate Judge.
The pro se plaintiff, Robert R. Jones, an inmate incarcerated at Red Onion State Prison, ("Red Onion"), brings this civil rights action pursuant to 42 U.S.C. § 1983, against the defendants Lt. Kiser, ("Kiser"), Lt. G. Adams, ("Adams"), and Correctional Officers Brock, Stidham and Taylor. In his Complaint, Jones alleges that the defendants violated his Eighth Amendment rights through the use of excessive force or their failure to protect and failure to intervene. (Docket Item No. 1, ("Complaint.")) In particular, Jones alleges that he was assaulted by Adams while the other officers stood by without intervening to protect him on November 24, 2013. Jones's claim is before the undersigned upon referral pursuant to 28 U.S.C. § 636(b)(1). An evidentiary hearing was held in this matter on October 5, 2015. For the reasons discussed herein, I recommend that the court enter judgment in favor of the defendants.
According to Jones, on November 24, 2013, while an inmate in the D Housing Unit at Red Onion, he did not get a drinking cup with his breakfast tray. He later asked about getting a drinking cup with his dinner tray from the correctional officer who was distributing trays in the pod. The officer, who he did not identify, told Jones that he did not have any cups. Jones said he then asked to see the building sergeant. Jones said that this officer must have told Correctional Officers Brock and Stidham that he wanted to speak to the sergeant because they started telling him, "You ain't getting no drinking cup."
At approximately 4:10 p.m., Jones said, Stidham told him that Adams wanted to see him. Jones said that Stidham and Brock escorted him to an office where Adams and Kiser were waiting on him. Jones said that he was escorted to a chair in the sergeant's office, where he sat down with his hands cuffed to the back in front of Adams, who was seated at a desk with a computer on it. Jones said that Adams spun around in his chair to face him once he was seated. Jones said that Adams was within arm's reach of him. He said that Stidham and Brock remained standing in the doorway so no one outside of the office could see inside. He said that Officer Taylor was standing with one foot in a chair to his right and that Kiser was seated in a chair beside the desk with the computer on it located to his left and to the right of Adams.
Jones testified that Adams asked him, "What's up with the request forms with regard to drinking cups?" Jones said that he told Adams that, according to Red Onion policy, each inmate was supposed to be given a drinking cup with his meal tray and that he had not received a cup that day. Jones testified that Adams became upset and told him, "I don't follow no rules or regulations." Then, according to Jones, Adams picked up a green logbook from the desk and hit him in the left side of his forehead. He said Adams then laid the logbook back on the desk. Jones said the logbook was approximately 8½ inches by 11 inches and contained approximately 100 pages.
Jones said that he asked Kiser for help and for medical treatment. He said that Taylor told him, "I will never give you a drinking cup. If I do, I am going to spit in it." Jones testified that Adams then told him to look at Officer Taylor. At another point Jones testified that he was instructed to look at Adams. Jones said that Adams then put a black glove on his right hand and slapped Jones in the left side of his face with his open hand, hitting him in the eye and splitting his lip, causing it to bleed. He said that he again asked to see someone from the Medical Department. Jones said that Brock and Stidham then took him back to his cell. On the way, he said that they told him he was lucky that all that happened to him was that Adams hit him. He said that Brock told him, "You better be glad I ain't hit you."
Jones said that his left eye ached, he was dizzy, and his left eye was bloodshot and red after Adams struck him. Jones testified that he showed his face to Sgt. Phillips on the night shift, but she refused to let him be seen by someone from the Medical Department. Jones filed An Inmate Request For Information/Service form on November 29, 2013, requesting to be seen on sick call. (Defendants' Exhibit No. 2 (Docket Item No. 49-9)). On this form, Jones stated that he was suffering from a headache, his left eye was burning and his left ear aching as a result of being struck by Adams with a logbook and then slapped in his face by Adams.
Jones said that he did not receive medical treatment for his injuries until five days later when he saw a doctor and told him what had occurred. He said that the doctor prescribed Tylenol and Motrin for his complaints of headache. Jones said that he also saw a doctor January 9, 2014, about complaints of his eye burning. Jones said that he was still having migraine headaches, and his eye was still burning. He testified that his lip eventually healed. Jones testified that he was scheduled to see an eye doctor on October 15, 2015.
Jones testified that he filed a Regular Grievance form on December 20, 2013, complaining of being assaulted by Adams. (Defendants' Exhibit No. 3 (Docket Item No. 49-10)). On this form, Jones alleged that Adams hit him in the head with a green logbook and then put on black gloves and slapped Jones's face. On this form, Jones claimed that he suffered from a headache and a welt on his face after being slapped. He also said that his left eye was still burning.
On cross-examination, Jones admitted that he had two drinking cups in his cell on November 24, 2013, that he had purchased from the prison commissary. He also admitted that he had been complaining for a while about the prison's failure to provide a drinking cup with every meal tray when the inmates were fed in the pod. Jones also admitted that he had never had any problem with any of the defendants before November 24, 2013, and that he had never filed any Complaints or Formal Grievances against any of the defendants before this incident.
Jones testified that he attempted to file an Informal Complaint regarding the incident on the same day, but Sgt. Phillips refused to give him a form. The Informal Complaint form that he did file was admitted as Defendants' Exhibit No. 1, (Docket Item No. 49-8). Jones also submitted three exhibits into evidence showing that he previously had complained to Red Onion officers about the lack of drinking cups when offenders were fed meals in the housing unit. (Docket Item Nos. 49-1, -2, -3.)
Garry Adams testified that he was the D Building sergeant at Red Onion on November 24, 2013, but since had been promoted to lieutenant. Adams testified that, as the building sergeant, it was part of his job to investigate informal requests and complaints. Adams stated that, in an average week, he would receive 30 to 40 Informal Complaints, to which he would respond.
Adams testified that, through his reports, he knows that he did speak with Jones on November 24, 2013, but he did not remember many of the details of the meeting. He said he had never had any problem with Jones and that Jones had never done anything threatening toward him. Adams said that he did vaguely remember Jones complaining about not receiving drinking cups. He said that, if the meeting was conducted around 4 p.m., it would have been brief, maybe five minutes at most, because it was near the end of the workday. Adams specifically denied that he struck Jones. He also stated that logbooks are not kept in the sergeant's office, and, instead, are maintained in the individual building pods and control rooms. Adams testified that no incident report was filed regarding the events of that day because no force was used on Jones by any officer. Jones submitted into evidence an October 23, 2014, affidavit signed by Adams, in which ...