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Cannon v. Hull

United States District Court, E.D. Virginia, Alexandria Division

July 21, 2016

Jamar A. Cannon, Plaintiff,
Edward Hull, et al., Defendants.


          Leonie M. Brinkema United States District Judge.

         Jamar 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.[1]

         In 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.

         In a 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.


         Throughout 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.[2] 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.

         In "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.

         In "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.

         In "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.

         In "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." Id.

         Plaintiff 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.


         To 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 ...

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