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Wall v. Artrip

United States District Court, W.D. Virginia, Roanoke Division

September 14, 2016

GARY WALL, Plaintiff,
JEFFERY ARTRIP, et al., Defendants.


          Hon. Jackson L. Kiser Senior United States District Judge

         Gary 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 summary judgment.


         At ROSP 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 in segregation.

         Plaintiff 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.

         During 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.

         On 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.

         On 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.

         Plaintiff 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."

         Six 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.

         A week 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 - are held.

         Two 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.

         Even 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.

         On 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.

         On 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.

         On 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 ...

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