United States District Court, W.D. Virginia, Roanoke Division
December 6, 2016
ISRAEL RAY COOPER, Plaintiff,
WARDEN B. A. WRIGHT, ET AL., Defendants.
E. CONRAD, CHIEF UNITED STATES DISTRICT JUDGE
civil rights action filed pursuant to 42 U.S.C. § 1983
comes before the court on a motion for summary judgment by
the defendant prison officials, supported by affidavits.
Plaintiff Israel Ray Cooper, a Virginia inmate proceeding pro
se, has responded, making the matter ripe for
disposition. After review of the parties'
submissions, the court concludes that material factual
disputes preclude summary judgment on Cooper's claim that
two officers used excessive force against him, and this
matter will be set for trial. The court will, however, grant
summary judgment for defendants as to Cooper's remaining
submissions allege the following sequence of events related
to his claims. On October 22, 2014, River North Correctional
Center ("River North") Sergeant ("Sgt.")
Lundy and Officer Leagan came to Cooper's
and allegedly ordered, "[C]uff up or be sprayed with
mace." (Compl. 5, ECF No. 1.) Cooper complied. The
officers locked him in a shower stall in the segregation unit
with his hands still cuffed behind his back. Leagan then
sprayed Cooper with mace "even though he posed no threat
to . . . safety, " and Sgt. Lundy "began assaulting
Cooper's hands while cuffed." (Id.) Cooper
alleges that he suffered "nerve damage to [his]
hand" during the incident. (Pl's Resp. 1, 4, ECF No.
25.) Cooper received three disciplinary charges-one for
attempting to spit at staff and two for possession of
Sgt. Lundy and Leagan moved Cooper to segregation on October
22, they also allegedly searched Cooper's personal
property items without preparing a proper inventory and
"threw away, lost or misplaced" numerous items.
(IcL 2.) Warden Wright ruled Cooper's grievance about
this property to be "founded, " because the
officers had not provided Cooper with an inventory of his
property items. Cooper was reimbursed $82.34 for the monetary
value of the missing or damaged property items.
result of the disciplinary charges, Cooper spent two months
in segregation. During disciplinary appeal proceedings,
Warden Wright reviewed surveillance camera footage of the
incident and dismissed the attempted spitting charge for
insufficient evidence. Cooper was found not guilty of
possessing a sex doll confiscated from his cell. He pleaded
guilty, however, to possessing razors that were found in his
shoe and contends they were pencil sharpeners, not weapons.
also filed grievances about not receiving proper notice of
all items confiscated as contraband after the cell search on
October 22, and Warden Wright found that this omission had
violated policy. Officer Shepherd served Cooper with an
incomplete confiscation form on October 22. Shepherd later
served a belated confiscation form on November 5, stating
that numerous photographs of children had been removed from
Cooper's cell. Cooper then had an opportunity to dispute
this confiscation through the grievance procedures, but the
items have not been returned to him.
brought this § 1983 action against Warden Wright,
Lieutenant P. A. Tincher, Sgt. Lundy, and Officers Leagan and
Shepherd. He raises three claims: (1) Lundy and Leagan
fabricated disciplinary charges against Cooper; failed to
inventory his personal property items; and lost or destroyed
several of his property items; (2) Shepherd violated prison
policy regarding notice of confiscated property; and (3)
Lundy and Leagan used excessive force against Cooper. Cooper
also alleges that the warden and Lt. Tincher are liable as
supervisory officials for the violations allegedly committed
by their subordinates.
Standard of Review.
should grant summary judgment "if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). "As to materiality . . . [o]nly
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment." Anderson v. Liberty Lobby.
Inc.. 477 U.S. 242, 248 (1986). A dispute about a
material fact is genuine "if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party." Id. The court must draw all reasonable
inferences from the facts in favor of Cooper, the nonmoving
party. Williams v. Staples. Inc., 372 F.3d 662, 667
(4th Cir. 2004).
contends that he is entitled to damages under § 1983
because defendants admit that officers failed to follow
prison policies on several occasions. To state a cause of
action under § 1983, "a plaintiff must allege the
violation of a right secured by the Constitution and laws of
the United States, and must show that the alleged deprivation
was committed by a person acting under color of state
law." West v. Atkins. 487 U.S. 42, 48 (1988)
(citations omitted). "[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 omitted). Similarly, a state's
failure to abide by its own procedural regulations is not a
federal due process issue, Riccio v. Cnty. of Fairfax.
Va., 907 F.2d 1459, 1469 (4th Cir. 1990), and is not
actionable under § 1983. Thus, Cooper's frustrations
that prison officials failed to comply with prison
regulations-by not properly completing or serving notice of
confiscation or inventory of his personal property items-do
not provide a basis for any claim under § 1983.
the court will grant summary judgment for all defendants on
Cooper's claims alleging violations of prison policies.
Procedural Due Process
has also stated no constitutional claim that he was deprived
of liberty or property interests without due process.
The prison inmate has no constitutionally guaranteed immunity
from being falsely or wrongly accused of conduct which may
result in the deprivation of a protected liberty interest.
[Rather, the inmate] has the right not to be deprived of a
protected liberty interest without due process of law.
Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir.
1986); see also Richardson v. Ray. 492 Fed.App'x
395, 396 (4th Cir. 2012) (holding that inmate's claim of
false disciplinary charge generally cannot state § 1983
claim) (citing Moore v. Plaster, 266 F.3d 928,
931-33 (8th Cir. 2001) (finding retaliatory-discipline claim
may proceed where disciplinary action is not supported by
"some evidence"); Freeman. 808 F.2d at
952-53 (holding that, so long as procedural requirements are
satisfied, mere allegations of falsified evidence do not
state § 1983 claim).
state a procedural due process violation, a plaintiff must
(1) identify a protected liberty or property interest and (2)
demonstrate deprivation of that interest without due process
of law." Prieto v. Clarke, 780 F.3d 245, 248
(4th Cir. 2015). "A liberty interest may arise from the
Constitution itself, by reason of guarantees implicit in the
word 'liberty, ' or it may arise from an expectation
or interest created by state laws or policies."
Wilkinson v. Austin, 545 U.S. 209, 221 (2005)
(internal citations omitted). An inmate's federally
protected liberty interests created by state law "are
limited to the freedom from restraint which, while not
exceeding the sentence in such an unexpected manner as to
give rise to protection by the Due Process Clause of its own
force, nonetheless imposes atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison
life." Sandin v. Conner, 515 U.S. 472, 484
first contends that the later-dismissed disciplinary charges
for attempted spitting and for possession of contraband
somehow violated his rights by causing him to be placed in
segregation for two months. If the challenged status change,
such as segregated confinement, does not impose
"atypical and significant hardship" on the inmate
or "inevitably affect the duration of his sentence,
" however, then he has no federally protected liberty
interest, and he is not entitled to federal due process
protections before prison officials may implement that status
change. Id. at 486-87. Mere limitations on
privileges, property, and activities, and even disciplinary
actions, "in response to misconduct fall[ ] within the
expected perimeters of the sentence imposed by a court of
law, " and as such, cannot qualify as harsh or atypical
so as to create a protected liberty interest. Id. at
does not describe the conditions in segregation during his
two-month term there. Certainly, he fails to allege facts
showing that this status imposes more restrictive conditions
than are routinely imposed on inmates segregated for
administrative or protective purposes. Thus, the court
concludes that Cooper fails to demonstrate any protected
liberty interest in avoiding a short term in segregation
during disciplinary proceedings. Accordingly, he has no
federal due process claim related to this disciplinary
charges. Moreover, the record clearly reflects that Cooper
did receive procedural protections related to these charges:
notice of the charge, a hearing, and conviction based on some
evidence (the testimony of the officers who used force
against him). Most importantly, Cooper pursued an appeal,
during which the warden overturned and expunged two
convictions, based on his assessment of the video footage and
the lack of evidence that the sex doll belonged to Cooper
rather than his cell mate. Far from being denied due process,
Cooper received this protection and succeeded in having his
convictions invalidated. For the stated reasons, the court
will grant defendants' motion for summary judgment as to
Cooper's due process claims regarding his disciplinary
also states no due process claim actionable under § 1983
regarding the loss or destruction of his property items.
"Because the protections of the Due Process Clause are
not triggered by the 'mere failure to take reasonable
care, ' negligent deprivations are not actionable under
§ 1983." Lovelace v. Lee, 472 F.3d 174,
202 (4th Cir. 2006) (quoting Pink v. Lester, 52 F.3d
73, 75 (4th Cir. 1995); see also Daniels v.
Williams, 474 U.S. 327, 328 (1986) ("[T]he Due
Process Clause is simply not implicated by a negligent act of
an official causing unintended loss of or injury to life,
liberty, or property."). Thus, to the extent that prison
officials' negligent or inadvertent acts caused loss or
damage of Cooper's property, he has not suffered a
deprivation of constitutional significance that triggered any
federally required procedural protections.
"an unauthorized intentional deprivation of property by
a state employee does not constitute a violation of the
procedural requirements of the Due Process Clause of the
Fourteenth Amendment if a meaningful postdeprivation remedy
for the loss is available." Hudson v. Palmer,
468 U.S. 517, 533 (1984). During Cooper's grievance
proceedings about his property, a prison administrator found
that officials did not follow prison regulations related to
timely notice of confiscation and property inventory. Such
random, unauthorized acts violated Cooper's
constitutional due process rights only if he had no
meaningful postdeprivation remedy for the loss. Cooper admits
that he had a postdeprivation remedy through the prison's
grievance procedures and received compensation for his lost
and damaged property items. He also fails to demonstrate that
postdeprivation remedies were not available to dispute the
confiscation of his photographs. Finally, Cooper also
possessed remedies under Virginia state law to seek
reimbursement for the value of these items. See,
e.g., Va. Code § 8.01-195.3 (Virginia Tort
Claims Act). Thus, it is clear that Cooper cannot prevail in
a constitutional claim under § 1983 for the deprivation
of his property. Hudson, 468 U.S. at 535-36
(regarding the availability and adequacy of state court
remedies under Virginia law for alleged destruction of
property). Accordingly, the court will grant summary judgment
for all defendants on Cooper's due process
Excessive Force Claims
Eighth Amendment does not prohibit all application of force
or infliction of pain against prisoners. United States v.
Gore, 592 F.3d 489, 494 (4th Cir. 2010). In the
excessive force context, "only the unnecessary and
wanton infliction of pain" rises to the level of a
constitutional violation. Whitley v. Albers, 475
U.S. 312, 319 (1986). An excessive force claim has two
components, one subjective and one objective. Specifically,
the court must determine whether a specific prison official
"acted with a sufficiently culpable state of mind and
[whether] the alleged wrongdoing was objectively harmful
enough to establish a constitutional violation."
Hudson v. McMillian, 503 U.S. 1, 8 (1992) (internal
quotation marks and citation omitted).
addressing the subjective component, the court must determine
"whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and
sadistically to cause harm." Id. at 5. Factors
the court may consider include "the need for the
application of force, the relationship between the need and
the amount of force that was used, ... the extent of injury
inflicted, " "the extent of the threat to the
safety of staff and inmates, as reasonably perceived by the
responsible officials on the basis of the facts known to
them, and any efforts made to temper the severity of a
forceful response." Whitley, 475 U.S. at 321. If
"the evidence, viewed in the light most favorable to the
plaintiff, will support a reliable inference of wantonness in
the infliction of pain, " the claim survives summary
judgment on the subjective component. Id.
addressing the less demanding, objective component under
Hudson, the court asks whether the force applied was
"nontrivial." Wilkins v. Gaddy, 559 U.S.
34, 39 (2010). The extent of the inmate's injury is a
factor in this inquiry, as it "may suggest whether the
use of force could plausibly have been thought necessary in a
particular situation" or may "provide some
indication of the amount of force applied." Id.
at 37 (internal quotation marks and citations omitted).
version of events on October 22 and 23, 2014, summarized
here, differs markedly from Cooper's account. Leagan and
Lundy say that they went to Cooper's cell to perform a
shakedown after receiving a tip that Cooper had razor blades
hidden in his sandals, a handmade sex doll, and a ring that
came apart to form a stabbing weapon. Cooper failed to comply
with five orders to present himself to be restrained, and
once in restraints, his disruptive behavior led to his
placement (with difficulty) in the segregation shower during
the cell search. Once there, Cooper allegedly tried to pull
the handcuff tether into the shower with him. Lundy states
that he heard Cooper "make a spit like noise and turn
his head to spit towards staff." (Lundy Aff. ¶ 6,
ECF No. 28-1.) In response, Lundy administered a short burst
of OC spray, and the officers then managed to remove the
tether from Cooper's restraints.
contends that the Rapid Eye footage of the October 22 use of
force incident would prove that he was not combative and did
not try to spit on anyone. As already indicated, defendants
state that under the operation of prison policies in effect
in 2014, this footage no longer exists. The court
construes Cooper's contentions about the video as his
personal statement that he did not commit the misbehaviors
described by Leagan and Lundy as justification for their use
of force. This statement is corroborated by the warden's
decision, based on the video footage, that the evidence did
not support a finding of guilt on the charge that Cooper
tried to spit at anyone. Thus finding genuine issues of
material fact in dispute as to Cooper's claims of
excessive force, and as to key elements of defendants'
defense of qualified immunity, the court will deny summary
judgment for Leagan and Lundy. See Buonocore v.
Harris, 65 F.3d 347, 359 (4th Cir. 1995) (finding
summary judgment not proper when resolution of qualified
immunity question and claim itself both depend upon
determining what happened).
argues that Defendant Tincher should be liable because he
supervised the officers who allegedly used excessive force.
Cooper also argues that Warden Wright is "legally
responsible" for operations at River North, including
constitutional and policy violations by his subordinates.
These contentions do not state a cognizable claim under
§ 1983. Officials may not be held liable under §
1983 for the unconstitutional conduct of their subordinates
under a theory of respondeat superior. Ashcroft
v. Iqbal, 556 U.S. 662, 676 (2009). Because Cooper does
not state facts showing that Tincher or Wright, through his
own "individual actions [or inactions], has violated the
Constitution" or caused others to violate it,
Cooper's § 1983 claim against this defendant fails.
Id.; Slakan v. Porter, 737 F.2d 368, 373
(4th Cir. 1984) (holding that supervisory liability under
§ 1983 requires showings that official had actual or
constructive knowledge of risk of constitutional injury and
was deliberately indifferent to that risk, and that there is
an affirmative causal link between the injury and supervisory
official's inaction). The court will grant summary
judgment for Tincher and Wright.
stated reasons, the court will grant defendants' motion
for summary judgment in part and deny it in part. The court
will grant the motion as to all claims and defendants except
Cooper's claims of excessive force against Lundy and
Leagan. These claims will be set for a jury trial. An
appropriate order will issue herewith.
Clerk is directed to send copies of this memorandum opinion
and accompanying order to plaintiff and to counsel of record
 Months after submitting his response
to defendants' motion, Cooper has filed a motion seeking
production of additional documents and video footage of the
October 2014 use of force incident. Defendants have presented
evidence that this video footage is no longer available, and
Cooper fails to demonstrate that any of the requested
discovery materials are necessary to his summary judgment
response. Accordingly, the court concludes that
defendants' motion is ripe for decision, and will
separately address Cooper's pending discovery motion in
preparation for trial.
 At the time of the alleged
constitutional violations, Cooper was incarcerated at River
North. Currently, he is confined at Red Onion State
 Cooper apparently believes that
dismissal of the disciplinary charge for trying to spit on
staff is conclusive evidence that Lundy and Leagan used
excessive force. Cooper is mistaken. An Eighth Amendment
claim of excessive force must be analyzed under a completely
different legal standard than the one Warden Wright employed
in deciding to dismiss Cooper's disciplinary charge. See
Whitley v. Albers, 475 U.S. 312, 319 (1986) (holding
that "only the unnecessary and wanton infliction of
pain" violates Eighth Amendment). Thus, while the
warden's finding will be relevant to Cooper's
excessive force case at trial, it does not foreclose
defendants' defense that they did not use
unconstitutional force against Cooper.
 The policy violations and due process
claims are the only portion of Cooper's complaint in
which Defendant Shepherd is implicated. Accordingly, the
court will grant summary judgment for this defendant.
 Defendants explain that at River
North, digital video recorder ("DVR") systems in
various locations throughout the facility record and store
video footage from multiple Rapid Eye cameras. Each DVR is
capable of retaining footage for a time before recording new
footage over the prior footage. The retention time varies
according to the amount of movement recorded in the
particular areas covered by each DVR's cameras in any
given period. Defendants state that the facility does not
have the capacity to retain all Rapid Eye video.
When Warden Wright's office investigated
Cooper's disciplinary appeal regarding the October 2014
incident, the video footage was still available. The warden
reviewed it and found that it did not support the
officers' report of Cooper's conduct. The video
policy then in effect, however, did not require long-term
retention of Rapid Eye footage involving use of force
incidents unless a formal institutional investigation was
conducted or other staff or the offender specifically
requested retention of the footage. Because the
investigator's office did not launch a formal
investigation of the October 22 use of force incident, and
that office did not receive any requests from Cooper for
retention of the Rapid Eye video of that incident, the video
was not retained and is no longer available. Therefore, the
court is unable to review it in support of Cooper's
excessive force claims, as he has requested.