United States District Court, W.D. Virginia, Roanoke Division
K. MOON UNITED STATES DISTRICT JUDGE.
Markjues Brown, a Virginia inmate proceeding pro se,
filed a civil rights action pursuant to 42 U.S.C. §
1983, alleging that the defendants denied his grievances and
failed to investigate his claims, retaliated against him,
subjected him to cruel and unusual living conditions, and
violated his rights to due process and free exercise of
religion. Defendants filed a motion for summary judgment and
Brown responded, making this matter ripe for disposition.
Upon consideration of the record, I will grant in part and
dismiss without prejudice in part defendants' motion for
is a Sunni Muslim inmate housed at Wallens Ridge State Prison
(“Wallens Ridge”). As part of his religion, he
must eat a halal diet. The Virginia Department of Corrections
(“VDOC”) provides a Common Fare diet which is
designed to accommodate inmates whose religious dietary needs
cannot be met by the regular diet. To participate in the
Common Fare diet, an inmate must sign an agreement which
outlines the requirements for continuing to receive the
Common Fare diet. Brown was approved to participate in the
Common Fare diet and signed a Common Fare Agreement
(“Agreement”) on June 18, 2012. The Agreement
requires, in relevant part, that Brown not be “observed
eating, trading, or possessing unauthorized food items from
the main line” and that he must attend at least two
services or other religious activities each month, if they
are available. Pursuant to the Agreement, if Brown violates
any of the requirements, he can be suspended from the Common
Fare diet for six months for his first offense.
states that on January 23, 2015, without any notice, he was
taken to an Institutional Classification Authority
(“ICA”) hearing before Unit Manager
(“UM”) Reynolds.At the ICA hearing, Sergeant Boyd
stated that on January 1, 2015, he observed Brown “come
into the cafeteria, bypass giving staff his [identification],
and pickup” and “consum[e] a regular [food]
tray.” In addition, Captain Cope submitted a
statement that Brown had recently missed three religious
services. At the hearing, Brown stated that he did
not accept a regular tray. He also alleges in his complaint that
he attended all of the required religious
services. UM Reynolds credited Sgt. Boyd's and
Cpt. Cope's statements, determined that Brown violated
the Agreement by taking a regular tray on January 1, 2015 and
failing to attend the required religious services, and
suspended Brown from the Common Fare diet for six months.
Brown contends that UM Reynolds' findings were based on
incorrect information and that Brown was not given proper
notice of the hearing or an opportunity to present witnesses
or evidence. Institutional Program Manager
(“IPM”) Hensley and Assistant Warden Combs each
reviewed and approved UM Reynolds' recommended
disposition before it became final. Brown argues that
defendants UM Reynolds, IPM Hensley, and Assistant Warden
Combs violated his right to due process with regard to the
ICA hearing. Brown argues that his right to free exercise of
religion was violated when Sgt. Boyd “falsely and
wrongly” accused Brown of taking a regular tray and by
the policy that VDOC Director Clarke wrote. Brown argues that
defendants Grievance Coordinator Ravizee, Warden Fleming,
Regional Administrator Ponton, Grievance Coordinator
Assistant Hyder, and Major Anderson violated his rights when
they denied and/or failed to adequately investigate his
complaints or allegations raised in his post-ICA hearing
grievances and appeals.
also claims that Lieutenant Coleman intimidated him into
“dropping” an informal complaint and that he
received a “bogus institutional charge, ” both in
retaliation for filing grievances. In response, defendants
contend that on June 8, 2015, Brown received an institutional
charge for intimidation in furtherance of gang activities
after he entered a shower while another inmate was in the
shower and forced the other inmate to get out of the shower.
Brown does not dispute defendants' assertion that Brown
was given notice and an ICA hearing concerning this charge.
is entitled to summary judgment if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine dispute as to any
material fact. Fed.R.Civ.P. 56(a). Material facts are those
necessary to establish the elements of a party's cause of
action. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A genuine issue of material fact exists if,
in viewing the record and all reasonable inferences drawn
therefrom in a light most favorable to the non-moving party,
a reasonable fact-finder could return a verdict for the
non-movant. Id. The moving party has the burden of
showing - “that is, pointing out to the district court
- that there is an absence of evidence to support the
nonmoving party's case.” Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). If the movant
satisfies this burden, then the non-movant must set forth
specific, admissible facts that demonstrate the existence of
a genuine issue of fact for trial. Id. at 322-23. A
party is entitled to summary judgment if the record as a
whole could not lead a rational trier of fact to find in
favor of the non-movant. Williams v. Griffin, 952
F.2d 820, 823 (4th Cir. 1991); see Ennis v. Nat'l
Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55,
62 (4th Cir. 1995) (“Mere unsupported speculation . . .
is not enough to defeat a summary judgment motion.”).
However, summary judgment is not appropriate where the
ultimate factual conclusions to be drawn are in dispute.
Overstreet v. Ky. Cent. Life Ins. Co., 950 F.2d 931,
937 (4th Cir. 1991). A court may not resolve disputed facts,
weigh the evidence, or make determinations of credibility.
Russell v. Microdyne Corp., 65 F.3d 1229, 1239 (4th
Cir. 1995); Sosebee v. Murphy, 797 F.2d 179, 182
(4th Cir. 1986). Instead, a court accepts as true the
evidence of the non-moving party and resolves all internal
conflicts and inferences in the non-moving party's favor.
Charbonnages de France v. Smith, 597 F.2d 406, 414
(4th Cir. 1979).
only allegations against defendants Grievance Coordinator
Ravizee, Warden Fleming, Regional Administrator Ponton,
Grievance Coordinator Assistant Hyder, and Maj. Anderson are
that they denied grievances and/or appeals and/or failed to
investigate Brown's complaints or grievances that other
defendants violated his rights. I conclude that these
defendants are entitled to summary judgment.
against a prisoner on an administrative complaint does not
cause or contribute to [a constitutional] violation, ”
George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007),
and inmates do not have a constitutionally protected right in
the grievance procedure, see, e.g.,
Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994).
Accordingly, the defendants are not liable under § 1983
for their responses to the grievances or appeals. See
Brown v. Va. Dep't Corr., No. 6:07cv33, 2015 U.S.
Dist. LEXIS 12227, at *8, 2009 WL 87459, at *13 (W.D. Va.
Jan. 9, 2009); see also Brooks v. Beard, 167 F.
App'x 923, 925 (3d Cir. 2006) (holding allegations that
prison officials and administrators responded inappropriately
to inmate's later-filed grievances do not establish the
involvement of those officials and administrators in the
alleged underlying deprivation). Further, Brown's claims
that the defendants failed to investigate his grievances or
complaints are not cognizable under § 1983. See
Charles v. Nance, 186 F. App'x 494, 495 (5th Cir.
2006) (holding that alleged failure to investigate a
grievance “fails to assert a due process
violation”); Sweat v. Rennick, No. 9:11-2908,
2012 U.S. Dist. LEXIS 55200, at *5, 2012 WL 1358721, at *2
(D.S.C. Feb. 7, 2012) (“Plaintiff's complaint that
this Defendant has not properly investigated his claims . . .
fails to set forth a claim for a violation of a
constitutional right.”); Lewis v. Williams,
Nos. 05-13, 05-51, 05-52, 2006 U.S. Dist. LEXIS 8444, at
*18-19, 2006 WL 538546, at *7 (D. Del. Mar. 6, 2006)
(“[T]he failure to investigate a grievance does not
raise a constitutional issue.”). Accordingly, I
conclude that defendants Grievance Coordinator Ravizee,
Warden Fleming, Regional Administrator Ponton, Grievance
Coordinator Assistant Hyder, and Maj. Anderson are entitled
to summary judgment.
claims that, in retaliation for filing grievances, defendant
Lt. Coleman intimidated him into “dropping” an
informal complaint and Brown received a “bogus
institutional charge.” Brown's allegations are
insufficient to state a claim, and, therefore, I will grant
defendants' motion for summary judgment as to these
well settled that state officials may not retaliate against
an inmate for exercising constitutional rights, including the
right to access the courts. See Am. Civ. Liberties Union
v. Wicomico Cnty., 999 F.2d 780, 785 (4th Cir. 1993).
However, in order to sustain a cognizable retaliation claim
under § 1983, an inmate must point to specific facts
supporting his claim of retaliation. White v. White,
886 F.2d 721, 724 (4th Cir. 1989). “[B]are assertions
of retaliation do not establish a claim of constitutional
dimension.” Adams, 40 F.3d at 75. Retaliation
claims are “treated with skepticism because
‘every act of discipline by prison officials is by
definition ‘retaliatory' in the sense that it
responds directly to prisoner misconduct.'”
Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir.
1996) (quoting Adams, 40 F.3d at 74). Moreover, to
plead a claim of retaliation, a plaintiff must allege
specific facts to establish: “(1) the existence of a
specific constitutional right; (2) the defendant's intent
to retaliate for the exercise of that right; (3) a
retaliatory adverse act; and (4) causation.” Lamp
v. Wallace, No. 3:04CV317, 2005 U.S. Dist. LEXIS 43932,
at *9, 2005 WL 5303512, at *4 (E.D. Va. Mar. 23, 2005)
(citing Freeman v. Tex. Dep't of Criminal
Justice, 369 F.3d 854, ...