United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Chief United States District Judge.
Peterson, a Virginia inmate proceeding pro se, filed this
civil rights action under 42 U.S.C. § 1983, alleging
that officials at Red Onion State Prison ("Red
Onion") used excessive force against him. A number of
motions are pending. After review of the record, the court
will grant Peterson's proposed amendments to the
complaint and deny his motion for default. The court will
also grant the motion to dismiss on behalf of some
defendants, deny without prejudice plaintiffs motion
regarding new defendants, and grant his motion to compel
production of camera footage related to his claims.
§ 1983 claims arise from the following alleged events.
On February 9, 2016, officers escorted Peterson to Cell C214.
Looking into the cell, Peterson smelled and saw brown feces
on the right inside wall. He asked Officers Akers and Messer
not to place him in a dirty cell, but Messer entered the cell
and placed Peterson's property on the bottom bunk. The
officers said they did not see any feces and ordered Peterson
to enter the cell. He did so and saw more feces on the other
walls, on the light fixture, and on the back of the door. He
begged the officers not to make him stay there. Suddenly,
"[his] hands and arms were yanked out of the hand cuff
pass and [he] was being yanked from side to side (as if [he]
was a tuna being pulled into a boat). [A]fter about 30
seconds of this, Defendant Messer took the cuffs off."
(Compl. 2, ECF No. 1.) Peterson walked away from the door and
looked down to see "blood running down his arms and
hands from deep cuts." (Id.) His left hand
looked like it was broken, and he felt muscles in his right
forearm had been pulled. Peterson started kicking his door to
get medical attention.
Hall and other officers came to the cell door. Peterson
showed them his injuries and told them about the feces in the
cell. Hall said he would not be moving Peterson and told him
to stop kicking the door. Peterson then threatened to break
the sprinkler or cover his window to get moved out of the
dirty cell. Hall said he was taking Peterson's property
and ordered him to comply with cuffing procedures. Peterson
did so. Hall ordered officers to move Peterson to Cell 308.
On the way, a nurse arrived and assessed Peterson's
injuries. At Hall's order, while Peterson was on his
knees in front of Cell 308, an officer stripped off
Peterson's clothes in sight of other inmates in nearby
cells. A hand felt up Peterson's leg, "rubbed . . .
from [Peterson's] penis up his ass (no penetration),
" and "grabbed [his] nutsack)." (Id.
3.) Peterson complied with an order to enter the cell,
someone returned his boxer shorts, and the nurse returned to
clean his cuts. After the nurse left, officers placed
Peterson's property into the cell and gave him dinner.
The next day officers escorted Peterson to the medical unit
for further assessment of his injuries, and an X ray of his
hand was ordered. Hall later apologized and asked Peterson to
forget about the incident.
filed his § 1983 complaint in late April 2016. He sues
Red Onion Warden Barksdale, Sgt. Hall, Lt. Gilbert, and
Officers Messer, Akers, and Vaughn, along with four unknown
officers, seeking monetary damages. Pursuant to the waivers
of notice of summons that the named defendants filed, they
had until July 24, 2016, to file responsive pleadings. On
Monday, July 25, Barksdale, Gilbert, and Vaughn filed a
motion to dismiss, and Hall, Messer, and Akers filed an
answer. Peterson then moved for default judgment, but also
responded to defendants' submissions and moved to amend
proposed amendments, Peterson alleges that Akers pulled him
through the tray slot, causing injuries to his hands and
arms; Messer failed to intervene; Akers and Messer failed to
report this use of force; Lt. Gilbert made no reports;
Barksdale "has covered up a felony" and has
"conspire[d] to hinder due-process and
investigations"; and Officer Vaughn failed to report
these events. (Amend. 2-3, ECF No. 23.) Peterson also states
that in addition to relief already requested, he also seeks
access to therapy for "P.T.S.D." (Id. 4.)
initial matter, Peterson's motion for default judgment
must be denied as lacking merit. The defendants who waived
service have each filed a timely motion to dismiss or answer
in response to the complaint. See Fed.R.Civ.P. 6(a)(1)(C)
("if the last day [of a filing period] is a Saturday,
Sunday, or legal holiday, the period continues to run until .
. . the next day that is not a Saturday, Sunday, or legal
Motion to Dismiss
motion to dismiss tests the legal sufficiency of a complaint.
See, e.g., Bell All. Corp. v. Twombly. 553 U.S. 544,
553-63 (2007). "[T]he complaint must be dismissed if it
does not allege enough facts to state a claim to relief that
is plausible on its face." Giarratano v.
Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (internal
quotation marks and citation omitted). In conducting its
review, a court must view the facts in the light most
favorable to the plaintiff, but "need not accept as true
unwarranted inferences, unreasonable conclusions, or
arguments." Id. (internal quotation marks and
1983 permits an aggrieved party to file a civil action
against a person for actions taken under color of state law
that violated his constitutional rights. See Cooper v.
Sheehan, 735 F.3d 153, 158 (4th Cir. 2013). "[A]
plaintiff must plead that each Government-official defendant,
through the official's own individual actions, has
violated the Constitution." Ashcroft 556 U.S.
at 676. "[I]t is well settled that violations of state
law cannot provide the basis for a due process claim"
under § 1983. Weller v. Dep't of Social
Services, 901 F.2d 387, 392 (4th Cir. 1990) (citation
Barksdale, Vaughn, and Gilbert have moved to dismiss
Peterson's claims against them, based on his failure to
identify in the original complaint any misconduct that they
had committed in connection with his basic claims of
excessive force. Peterson has tried to correct this
deficiency, but his additional allegations against these
officers still fall short. At the most, he alleges that they
failed to report or investigate complaints he made to them
after the alleged use of force and strip search
incidents. Even if prison policy required investigations or
reports that the defendants failed to make, such policy
violations do not equate with a constitutional violation and
are not actionable under § 1983. Peterson fails to
identify personal actions these defendants took that caused