United States District Court, E.D. Virginia, Alexandria Division
Jamar A. Cannon, Plaintiff,
Edward Hull, et a., Defendants.
M. Brinkema, United States District Judge
A. Cannon filed this pro se civil rights action, pursuant to
42 U.S.C. § 1983, alleging that defendants
Superintendent Edward Hull, Major Phyllis Back, Chief of
Security Darryl Turner, Captain Hickey, Officer D. Lubeke,
Officer Stephan, Sergeant Berry, and Director Michelle Lewis
violated his constitutional rights at the Northern Neck
Regional Jail (NNRJ). Defendants have filed a Motion for
Summary Judgment as well as memoranda of law with supporting
exhibits. [Dkt. Nos. 29, 30.] After having been granted an
extension of time to respond, plaintiff has responded to
defendants' motion [Dkt. No. 45] and this matter is now
ripe for adjudication. For the reasons discussed below,
defendants' Motion for Summary Judgment will be granted
as to Claims One through Four and these claims will be
dismissed, with prejudice. As to Claim Five, defendants will
be directed to provide supplemental briefing. Finally,
plaintiffs pending discovery motions will be denied and all
other pending motions will be denied as moot.
was transferred to the NNRJ by the United States Marshal
Service in June 2011. Supt. Hull Aff., ¶ 5. During this
time, plaintiff has been assigned to various forms of
restrictive housing, including administrative segregation
and, at times, the more restrictive punitive segregation.
Id. ¶ 8. His administrative records from NNRJ
demonstrate that plaintiff is "[u]nable to adapt to life
in general population" and has routinely been placed in
administrative segregation for the "safety and security
of the institution." Defs. SJ Mot. at Ex. 1(a), 10, 11,
12, 13, 14, 15, 16, 17. The bases for these conclusions are
September 2011, plaintiff met with the prison therapist who
wrote that plaintiff was having auditory hallucinations and
making veiled threats. Id. at 20. On June 14, 2013,
after plaintiff was moved to E-pod, he was placed on suicide
watch after he became angry about the transfer and threatened
to kill himself. Id. at 21. In September 2015,
officers discovered a pocket knife and two pens hidden in
plaintiffs cell and he was cited with disobeying a direct
order, possession of a weapon, and possession of contraband.
Id. at 26.
was placed on suicide watch a second time on June 24, 2016
after he threatened to kill himself based on persistent
complaints about his food. Id. at 22. The evening
before, plaintiff began making suicidal threats and resisted
attempts to transport him for suicide watch: he covered the
window to his cell, refused to allow officers to handcuff
him, jammed his cell door shut, and ran out of his cell as
the officers entered behind protective shields. Id.
at 31. When he was finally taken to the medical wing,
plaintiff "threatened to harm himself and damage jail
property" and was placed in a restraint chair for
several hours. Id. at 18.
days later, on June 28, 2016, plaintiff asked to see the
therapist again and told him he planned to act out if he was
not provided with his grandmother's obituary, to which he
had previously been denied access. Id. at 23. The
following month, he met with the therapist again complaining
of "anxiety with increased energy, increased
anger/agitation, ... decreased sleep, and ... a lot of
psychomotor movements." Id. at 24. Plaintiff
agreed to start taking Wellbutrin, an antidepressant.
asserts five separate claims in his amended complaint. The
disputed and undisputed facts, as they relate to each claim,
are as follows.
Claim One, plaintiff alleges that Officer Lubeke used
excessive force. Amend. Compl. at § IV. Specifically,
plaintiff alleges that on July 18, 2012, he was handcuffed
behind his back and placed in shackles (per his housing
unit's policy) by Officer Stephan before being escorted
to meet his attorney. Id. As he was about to enter
the "Attorney booths" he passed Officer Lubeke, the
two exchanged words, and Officer Lubeke "proceeded to
bull rush [plaintiff) with rage and hurtful/forceful
intent." Id. Officer Lubeke then "grabbed
the locks of [plaintiffs] dreaded hair and proceeded to slam
[plaintiffs] head and body from wall to wall all while
[plaintiff was] screaming in pain stop, your [sic] hurting me
get him Stephan." Id. Plaintiff claims that he
had blood running down his neck and out of his ears, and that
Officer Lubeke pulled the root of his hair out of his head,
causing it to bleed. LI Plaintiff attempted to file criminal
charges, but was "told by Captain Hickey and
Superintendent Hull [that he had] no right to file
charges" and that it was up to Superintendent Hull to do
so. Id. Finally, plaintiff claims that, rather than
officer Lubeke being charged with assault, plaintiff was
thrown into solitary confinement for assaulting Officer
Lubeke. Id. Defendants do not dispute any of these
allegations, but as discussed below, they argue that this
claim is time-barred.
Claim Two plaintiff alleges he suffered cruel and unusual
punishment at the direction of Superintendent Hull, Major
Back, and Captain Turner, when he was forced to take showers
while handcuffed and shackled "like a slave and less of
a human being" during a 30-49 day period. Id.
The following facts are undisputed. While incarcerated at
NNRJ, plaintiff has been assigned to restricted housing due
to his inability to adapt to and maintain life in NNRJ's
general population. Amend. Compl.; Defs. SJ Mot. at Ex. 1.
While plaintiff was in punitive segregation he was allowed to
leave his cell on Mondays and Fridays to take a shower, but
he was placed in handcuffs and shackles when transported to
the shower areas. Id; Defs. SJ Mot. at Ex. 3. On
October 20, 2015, and October 28, 2015, plaintiff filed
grievances related to the requirement that he wear handcuffs
and shackles in the shower. Defs. SJ Mot. at Ex. 1 (b).
Plaintiff was told that "the jail has taken the
necessary security measures in regards to [his] recent
behavior" including his "disciplinary charge and
statements in reference to threats to staff."
Id. Plaintiff appealed the grievance to which Major
Back responded that plaintiffs "position on how [his]
one hour out of [his] cell and [his] shower should be
provided is self-perceived, partially informed and
consequently [illegible] and inaccurate statement."
Id. Plaintiff appealed again and on November 23,
2015, Superintendent Hull responded that he "modified
this requirement." Amend. Compl. According to plaintiff,
that modification was that he only wore handcuffs in the
remains disputed as to whether plaintiff was taken to the
shower naked and why plaintiff was treated the way he was.
Plaintiff alleges that he was forced to get "butt
naked" in his cell, after which he would be cuffed and
shackled, and then he would "proceed to the shower,
" walking past other inmates "with all [his]
private parts exposed." Id. Some officers and
inmates would make comments and laugh at and taunt plaintiff
as he walked to the shower naked. Id. In addition,
the handcuffs and shackles caused plaintiff "mental,
emotional and physical stress pains and swellings of the
wrist, and ankles." Id. Plaintiff asserts that
he "did nothing to warrant this cruel [and] unusual
punishment and this is not a legal punishment to be brought
upon any human being incarcerated period." Id.
More specifically, plaintiff states that he had no
disciplinary charges filed against him from October 2014 to
September 2015, and he was employed in a position of trust as
a barber at NNRJ. Pl. S J Opp. at 4. Finally, plaintiff
alleges that Major Back "endorses slavery and slavery
tactics in dealing with African-Americans and others of
different cultures other than caucassion [sic]." Amend.
Compl. at § IV.
on the other hand, state that plaintiff was never
"escorted, while naked, to the showers." Defs. SJ
Mot. at Ex. 1(a), 3. Further, plaintiffs contemporaneously
filed grievance forms, dated October 10, October 20, October
28 and October 30, 2015 complain about the handcuffs and make
no mention of being forced to walk to the showers naked.
Defs. SJ Mot. at Ex. 1(b), 2-5. In addition, defendants
assert that, for the majority of his time at NNRJ, plaintiff
was either in administrative segregation or punitive
segregation because he was "unable to adapt" to the
general prison population. Id. Defendants assert
that the restrictions placed on plaintiff were a result of
his ongoing history of threatening to damage jail property
and/or to harm himself or others, conducting illegal
activity, inciting riots, and generally being combative,
disrespectful or threatening to jail staff."
Id. at Ex. 2.
support this proposition, defendants attached reports from
plaintiffs jail record showing that he reported hearing
command voices and "made a few veiled threats" to a
therapist on September 16, 2011; an inmate suicide assessment
was performed on plaintiff on June 14, 2013; on September 30,
2015, plaintiff was found to have contraband in his cell and
he was taken to administrative segregation; he was charged
with making "verbal threats to do bodily harm to
officers" on December 18, 2015; and that he was pepper
sprayed for failing to obey orders after threatening to kill
himself and covering his cell window, and he was then placed
in a restraint chair for "threatening to harm himself
and damage j ail property" on June 23, 2016.
Id. at Ex. 1 (a)
Claim Three, plaintiff asserts a claim of cruel and unusual
punishment based on conditions of confinement related to
being forced to eat food in the poor conditions of the gym
and the conditions of solitary confinement in which plaintiff
was placed for refusing to eat in the gym. It is undisputed
that, on June 17, 2015, plaintiff and the other inmates in
his pod had to eat lunch in the gym while their pod was
undergoing maintenance. Amend. Compl; Defs. S J Mot. at Ex. 1
(c). An incident report from that day reflects that, after
the "C pod inmates which [sic] were in the gym at the
time for maintenance work, refused their lunch trays"
prison officials placed chairs in the gym and opened the
bathroom doors so that the inmates could wash their hands.
Defs. SJ Mot. at Ex. 1 (c). "Officer Campbell offered
them their trays again and they refused." Id.
Officer Burrell went to the gym to offer the inmates their
trays, at which point plaintiff stated "'we have the
right to eat in sanitary conditions, get the major in
here.'" Id. Captain Turner ordered that
plaintiff be removed from the gym and taken to segregation.
alleges that the gym has "no ventilation system, no
running water (because the bathroom stays locked), urine in
the water fountain ... blood on the floor and walls and
filth." Amend. Compl. at § IV. He also states that
the cell he was placed in once in solitary confinement had
"no mirror, no sprinkler system, urine/feces on the
walls, roof leaking when it rains, etc." Id.
Plaintiff "endured these harsh conditions for over 30
days and became mentally [and] emotionally exhausted [and]
stressed out." Id. He was eventually moved to
general population. Id.
claim that plaintiff was "attempt[ing] to incite riotous
behavior by refusing to accept his lunch tray in the gym.
Plaintiff was removed from the gym at that time and the other
inmates had no ...