United States District Court, W.D. Virginia, Roanoke Division
Jackson L. Kiser Senior United States District Judge
Wall, a Virginia inmate proceeding pro se, commenced a civil
rights action pursuant to 42 U.S.C. § 1983. Plaintiff
names staff of the Red Onion State Prison ("ROSP")
and Virginia Department of Corrections ("VDOC") as
defendants. Plaintiff alleges that defendants violated due
process and retaliated against him for filing administrative
grievances and a lawsuit by confining him at various security
levels in ROSP. The parties have filed motions for summary
judgment. After reviewing the record, I grant Defendants'
motions for summary judgment and deny Plaintiffs motions for
on May 1, 2013, a correctional officer allowed a K-9 to bite
Plaintiffs legs after intervening in a fight between
Plaintiff and another inmate. Plaintiffs allegations flow
from this incident. Plaintiff began mailing letters and
filing administrative grievances about the K-9, officers'
responses (or lack thereof) to grievances, and his placement
begins his list of defendants' alleged conspiratorial and
retaliatory acts as of May 24, 2013, when defendant Artrip, a
Unit Manager for Delta Building, said Plaintiff would remain
in segregation until Plaintiff stopped filing grievances.
Artrip allegedly repeated the threat on June 20, 2013. On the
next day, defendant correctional officer ("C/O")
Murphy charged Plaintiff with a "111" infraction
for allegedly breaking the window in his cell door.
the hearing for the "111" charge on June 25, 2013,
Plaintiff complained of changes made to the charging
document, and defendant Counts, who was the ROSP Inmate
Hearings Officer ("IHO"), delayed the disposition
of the "111" charge. As a consequence of the delay,
defendant Raiford, a Unit Manager for Delta Building, and
defendant Lt. Fannin refused to conduct an Institutional
Classification Authority ("ICA") review of
Plaintiff s security status until the charge was adjudicated.
Plaintiff alleges that this delay was used to unlawfully
extend his time in segregation by forty-eight days.
August 13, 2013, IHO Counts told Plaintiff that the
"111" charge was dismissed. Defendants Raiford and
Lt. Still released Plaintiff from segregation to Phase I,
which Plaintiff refers to as general population. Nonetheless,
Plaintiff was dissatisfied because he believed VDOC policy
required him to be released to Phase II general population,
which allows more privileges than Phase I.
August 15, 2013, and in the presence of Sgt. Deel, Lt.
Fannin, and other correctional officers, Unit Manager Kilborn
demanded that Plaintiff stop filing grievances. When
Plaintiff refused, Kilborn allegedly said, "Don't
worry, you won't be in population (Phase-I) long, I
assure you, " while the officers nodded in agreement.
filed more grievances, and on August 29, 2016, Lt. Fannin
allegedly tried to coerce Plaintiff into withdrawing the
grievances, explaining that filing them would keep him
incarcerated at ROSP and out of general population. Plaintiff
refused to withdraw the grievances, and Lt. Fannin allegedly
said, "You've been warned."
days later on September 3, 2013, Plaintiff was talking with
fellow inmates in a line. Defendant C/O Madden allegedly told
Plaintiff to "shut the fuck up and turn around, "
to which Plaintiff replied, "Fuck you, I can talk to him
if I want to." C/O Madden next told Plaintiff,
"Either turn around in line or go back to the
building." In response, Plaintiff pointed to the
building and "verbally indicat[ed] [his] choice."
C/O Madden nodded in agreement, and Plaintiff walked toward
the building. However, Sgt. Deel intercepted Plaintiff and
directed him to segregation for violating an institutional
rule that prohibits cursing at staff. After being placed in
segregation, Plaintiff learned he would be charged instead
with a "129" infraction for approaching an officer
in an intimidating manner. On September 11, 2013, IHO Counts
found Plaintiff guilty of the "129" charge and
revoked Plaintiffs visitation and phone privileges for ninety
days. This institutional conviction was a basis to move
Plaintiff from general population and into the Structured
Living segregation program.
later, Plaintiff began helping inmates file administrative
grievances about their personal property. When Artrip learned
of this fact, he allegedly told Plaintiff, "I will find
a nice spot for you in Charlie Building, " which is
where the inmates at the highest security level - level 6 -
days later on September 20, 2013, Plaintiff was moved from
Structured Living to Security Level 6 in the Charlie
Building. Plaintiff complains that he did not receive an IC A
hearing or have his transfer approved by the VDOC's
Central Classifications Services, which allegedly violated
VDOC policies. Plaintiff filed a grievance on September 27,
2013, about the reclassification to Security Level 6. None of
his grievances or appeals were successful.
though Plaintiff had been charge free for ninety days and did
not have a "segregation qualifier charge, " the ICA
decided on December 2, 2013, that Plaintiff would remain on
SM-0 status, which Plaintiff alleges violated VDOC policies.
Defendant Lt. Franklin allegedly told Plaintiff, "If
[you] come over here (C-Building) appealing every decision,
[you] would remain on SM-0 status." Plaintiff did not
appeal the ICA's decision and was approved for SM-1
status on January 27, 2014.
December 8, 2013, Plaintiff commenced the civil action
Wall v. Looney, No. 7:13-cv-00587, in this court
about being bitten by the K-9 on May 1, 2013. On February 20,
2014, the court ordered that waivers of service of process be
mailed to the Office of the Attorney General of Virginia on
behalf of the defendants in that case. The only defendants in
both that earlier action and this action are ROSP Warden R.
Mathena and VDOC Regional Administrator G. Hinkle.
March 3, 2014, Lt. Day informed Plaintiff he was approved for
SM-2, but Plaintiff was dissatisfied because he believed VDOC
policies should have caused him be released to Phase I
general population. Kilborn allegedly again threatened
Plaintiff about grievances on March 21, 2014, and when
Plaintiff refused to withdraw them, Plaintiff remained in
segregation at SM-1. After spending approximately ninety-nine
days at SM-1 status, Plaintiff was moved to SM-2 status on
May 5, 2014. Plaintiffs ICA hearings on May 21 and August 8,
2014, resulted with him remaining on SM-2 status. Plaintiff
filed grievances about being held at SM-2 status to no avail.
August 12, 2014, defendant Turner, a Unit Manager, told
Plaintiff he would be released to Phase I general population
if space became available, which Plaintiff "knew"
to be untrue. On August 15, 2014, a counselor allegedly told
Plaintiff he would not be moved back into Phase I because
Plaintiff "pissed somebody off in Delta Building and
they don't want you back over there." Plaintiff
believes that the statement ...