United States District Court, E.D. Virginia, Alexandria Division
Jamar A. Cannon, Plaintiff,
Edward Hull, et al., Defendants.
M. Brinkema United States District Judge.
A. Cannon filed this pro se civil rights action, pursuant to
42 U.S.C. § 1983, alleging that defendants violated his
constitutional rights at Northern Neck Regional Jail. Dkt.
No. 1. Plaintiff has applied to proceed in forma
pauperis in this action. Dkt. No. 2. By Order dated May
12, 2016, plaintiff was directed to particularize and amend
his complaint, to sign and complete a Consent Form, and to
complete an exhaustion affidavit. Dkt. No. 3. Plaintiff
requested additional time to comply with that Order, and on
June 3, 2016, he was granted an additional thirty (30) days
in which to file a particularized and amended complaint. Dkt.
Nos. 6-8. Plaintiff filed an amended complaint on June 9,
2016. Dkt. No. 10. Upon review of plaintiffs amended
complaint, the claims plaintiff alleges which arise under the
Seventh and Thirteenth Amendments and the Prison Rape
Elimination Act (PREA), as well as the claims against Nurse
Barns, will be dismissed pursuant to 28 U.S.C. §
1915A(b)(l), for failure to state a claim.
addition, by letter filed on May 22, 2016, plaintiff stated
that he needs "help either threw [sic] counsel or some
help to get the U.S. Constitution laws, civil rights of a
prisoner/US citizen and the Amendments of the United States
set forth by Congress." Dkt. No. 6. Construed liberally,
plaintiffs letter appears to be a Motion to Appoint Counsel.
A court may request an attorney to represent an indigent
plaintiff proceeding in forma pauperis. 28 U.S.C.
§ 1915(e)(1); however, the Fourth Circuit has limited
the appointment of counsel to cases where "exceptional
circumstances" exist, such as cases with particularly
complex factual and legal issues or with a litigant who is
unable to represent himself adequately. Whisenant v.
Yuam. 739 F.2d 160, 163 (4th Cir. 1984). It is
unnecessary at this time to appoint counsel for plaintiff as
he has failed to demonstrate the existence of
"exceptional circumstances" that would warrant
appointment of counsel. To date, plaintiff has ably filed his
complaint, amended complaint, and motions, and has
demonstrated comprehension of the procedures and laws of this
court. Thus, plaintiffs Motion to Appoint Counsel will be
denied without prejudice to renewal at a later stage of the
proceedings, if appropriate.
letter filed on July 5, 2016, plaintiff asks for "a copy
of everything filed in this case or a docket sheet, and I
would like to request a discovery motion of anything
pertaining to this matter." Dkt. No. 13. By Order dated
June 3, 2016, a similar request was denied because parties
are not entitled to free copies of pleadings or other
documents unless a specific need is established. Plaintiff
has not established such a need. As was ordered in the June
3, 2016 Order, the Clerk will be instructed to provide
plaintiff with a copy of the docket sheet. Lastly, plaintiffs
Motion for Discovery will be denied as premature because the
complaint has not yet been served on all defendants.
Plaintiff may renew this request after defendants respond to
the amended complaint, if discovery is appropriate.
his amended complaint, plaintiff variously asserts that his
rights under the First, Sixth, Seventh, Eighth, Thirteenth,
and Fourteenth Amendments were violated, as well as his
rights under the PREA. In "Claim # 1, " plaintiff
alleges that he was assaulted by Officer Lubeke. Amend.
Compl. at § VI. Specifically, plaintiff states that, on
July 18, 2012, he was handcuffed behind his back and placed
in shackles (per his housing unit's policy) by Officer
Stephan before being escorted to meet his attorney.
Id. As he was about to enter the "Attorney
booths" he passed Officer Lubeke, who was on a ladder
changing light bulbs. Id. The two exchanged words
and then Officer Lubeke allegedly "jumped off the
[ladder] and proceeded to bull rush [plaintiff] with rage
and hurtful/forceful intent." Id. Plaintiff
asked Officer Stephan for help, but he "did nothing,
said nothing." Id Officer Lubeke then allegedly
"grabbed the locks of [plaintiffs] dreaded hair and
proceeded to slam [plaintiffs] head and body from wall to
wall all while [plaintiff was] screaming in pain stop, your
[sic] hurting me get him Stephan." Id.
Plaintiff states that he had blood running down his neck and
out of his ears, and that Officer Lubeke pulled the root of
his hair out of his head, causing it to bleed. Id
After speaking with Sergeant Berry, plaintiff was taken to
the medical unit where Nurse Barns cleaned his wounds and
filled out a report regarding plaintiffs
injuries. Id Plaintiff attempted to file
criminal charges, but was "told by Captain Hickey and
Superintendent Hull [that he had] no right to file
charges" and that it was up to Superintendent Hull to do
so. Id. Plaintiff alleges that, instead, he was
charged with assaulting Officer Lubeke, even though he was in
handcuffs and shackles at the time, and was placed in
solitary confinement. Id. Plaintiff asserts that his
only remedy was to file this civil suit. Id.
Plaintiff also states that all of the defendants are "in
on [this] cover up" and that they each had a duty to
report Officer Lubeke's actions because they had
"knowledge of a crime." Id. Plaintiff has
suffered "emotional stress, physical [and] mental
problems, permanent injuries [and] hair loss" and he
"fear[s] for [his] life here at 'NNJR' because
if [officers] and superiors cover up vicious, sadistic and
[sic] assaults/attempted murder on inmates imagine what else
this place will allow and cover up." Id.
"Claim #2, " plaintiff alleges that, at the
direction of Superintendent Hull, Major Back, and Captain
Turner, he was forced to take showers while handcuffed and
shackled, for approximately 30 to 49 days, "like a slave
and less of a human being." Id More
specifically, plaintiff was forced to get "butt
naked" in his cell, after which he would be cuffed and
shackled, and then he would "proceed to the shower,
" walking past other inmates "with all [his]
private parts exposed." Id. Some of the
officers escorting plaintiff to his showers were females.
Id. Officers and inmates would make comments and
laugh at and taunt plaintiff as he walked to the shower
naked. Id. In addition, the handcuffs and shackles
caused plaintiff "mental, emotional and physical stress
pains and swellings of the wrist, and ankles."
Id. At some point, Superintendent Hull modified this
procedure so that plaintiff only wore handcuffs in the
shower. Id. Plaintiff asserts that he
"shouldn't be treated like a slave or murder"
because he "did nothing to warrant this cruel [and]
unusual punishment and this is not a legal punishment to be
brought upon any human being incarcerated period."
Id. Finally, plaintiff alleges that Major Back
"endorses slavery and slavery tactics in dealing with
African-Americans and others of different cultures other than
caucassion [sic]." Id.
"Claim #3" plaintiff alleges that he was forced to
eat food in the poor conditions of the gym and was then
placed in solitary confinement, at the direction of Major
Back, for refusing to eat in the gym and complaining about
the conditions. Id. Specifically, plaintiff states
that the gym has "no ventilation system, no running
water (because the bathroom stays locked), urine in the water
fountain ... blood on the floor and walls and filth."
Id. He also states that the cell he was placed in
had "no mirror, no sprinkler system, urine/feces on the
walls, roof leaking when it rains, etc." Id.
Plaintiff "endured these harsh conditions for over 30
days and became mentally [and] emotionally exhausted [and]
stressed out." Id. He was eventually moved to
general population. Id.
"Claim #4" plaintiff states that he was not allowed
to call his attorney. Id. On October 15, 2015,
Sergeant Berry told plaintiff he could not "call and
talk to [his] attorney, but she was authorized by Captain
Darryl Turner to come to [plaintiffs] cell and ask [him] what
[he] wanted to say and she should relay the messages back and
forth." Id. Major Back gave "another order
to [Captain] Turner denying [plaintiff] direct communication
to [his] attorney." Id. In addition, Supervisor
Hull knew his subordinates were taking these actions, but he
did not intervene;" rather, he "acted as [if]
nothing happened or he didn't know." Id.
"Claim #5" plaintiff alleges that he has "been
forced to be indigent" because, at the direction of
Major Back, his inmate account was frozen since September 30,
2015, preventing him from being able to make non-legal calls
or buy food and hygiene products. Id This has caused
plaintiff to lose weight because of the stress and lack of
food. Id. Plaintiff alleges that, although the jail
employees, including Director Lewis, have stated that they
have evidence that the money in his account was related to
illegal activity, he has been sanctioned despite not being
charged with any criminal activity or institutional
infraction. Id. Plaintiff states that he is not even
allowed to access money deposited by family and friends.
Id. Plaintiff asserts that he is "being treated
differently than other prisoners/being denied phone
privileges, access to my families [sic] money sent for
hygiene, phone [and] commissary purposes, loss of contact
with family [and] kids etc." Id. He also claims
that Major Back "has shown racist [sic] and hatred
towards plaintiff by freezing inmate[']s account on
assumptions and giving vague, false and no fact backed excuse
other than a case by case base [sic]." Id.
Superintendent Hull stated that this "will continue
until [plaintiffs] release from this facility."
names Superintendent Edward Hull, Major Phyllis Back, Chief
of Security Darryl Turner, Captain Hickey, D. Lubeke, Officer
Stephan, Sergeant Berry, Director of Inmate Services Michelle
Lewis, and Nurse Barns as defendants in this case, and he
seeks monetary and equitable relief. Id.
§§ I, V.
state a claim under § 1915A(b)(l), "a complaint
must contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face.'" Ashcroft v. Iqbal.556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly.550 U.S. 544, 570 (2007)). "A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged, "
Iqbal. 556 U.S. at 66; however, "[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice" to meet this
standard, Id. at 678, and a ...