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Snodgrass v. Messer

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

March 10, 2017

KEVIN SNODGRASS, JR., Plaintiff,
v.
S.L. MESSER, et al., Defendants.

          MEMORANDUM OPINION

          Elizabeth K. Dillon, United States District Judge.

         Kevin Snodgrass, Jr., a Virginia inmate proceeding pro se, filed this action under the Civil Rights Act, 42 U.S.C. § 1983. In his complaint, Snodgrass alleges that the defendant prison officials charged and convicted him of a disciplinary offense without due process, retaliated and conspired against him, sexually harassed him verbally and by conducting an unlawful strip search, and/or failed to investigate his harassment complaint. Having reviewed the record, the court concludes that the defendants' motion to dismiss must be granted.

         I. Background

         Snodgrass is incarcerated at Red Onion State Prison (“Red Onion”) in Pound, Virginia.[1]On August 20, 2015, from about 12:00 to 1:30 p.m., he exercised in his cell. During this time, Red Onion officers conducted the afternoon count, but Snodgrass allegedly did not hear any whistle or verbal order announcing this procedure. He alleges that defendants Messer and Bishop purposely failed to blow the whistle or otherwise announce the start of count procedures. At 4:50 p.m., two officers served Snodgrass with a disciplinary charge for failing to stand for the afternoon count. Snodgrass alleges that defendant Adams did not conduct a proper investigation before approving this charge, as demonstrated by Adams' failure to obtain and attach a statement from Messer.

         Around 5:20 p.m., while conducting routine rounds of the unit, Messer walked up to Snodgrass's cell “in an aggressive manner . . . and began to verbally harass and threaten [him] with sexual comments.”[2] (Compl. 3, Dkt. No. 1.) Messer then ordered Snodgrass to strip. Snodgrass removed his shirt, but when Messer stated, “[P]ull your pants down so I can see that black ass, ” Snodgrass refused. (Id.) “Embarrassed, and upset emotionally, ” Snodgrass asked to see a higher ranking officer and told Messer that he would file a “PREA” report that Messer had sexually harassed him;[3] in reply, Messer yelled, “[T]hat's cause you're a f**'n SNITCH.” (Id.) Inmates in cells nearby have filed affidavits stating that they overheard this conversation between Messer and Snodgrass.

         In preparation for the hearing on the disciplinary charge that he had failed to stand for count, Snodgrass requested an advisor and witness forms, but received only two forms. Officers told him that additional forms were not available. Originally scheduled for August 26, 2015, the hearing was actually conducted two days later with no notice of postponement. Snodgrass asked to be allowed to obtain witness statements from two inmates and a copy of the Reporting Officer Response Form, to show that Officers Bishop and Messer did not announce afternoon count on August 20, 2015. Snodgrass also requested documentation to show that these two officers had charged him numerous times in the past four months for failing to stand for count. Hearing officer Counts denied these requests and allegedly “failed to remain fair and impartial based on the facts presented when she rendered a guilty verdict.” (Id. 4.)

         On appeal, defendant Barksdale upheld the guilty finding. In doing so, he noted that he had considered the appeal under the assumption that the officers had not announced count. He also found that Snodgrass could have requested witness forms before the hearing. Snodgrass's allegation that Bishop and Messer were the only officers who had charged him with the same offense on prior occasions over a four-month period also did not convince Barksdale to vacate the conviction.

         When Snodgrass notified supervisor Tori Raiford of Messer's sexual harassment comments, she allegedly told Snodgrass that she did not “give a shit! That's your problem!” (Id.) Snodgrass wrote a letter to defendant Clarke, VDOC director, about the sexual harassment. In response to the PREA report, Investigator Bentley interviewed Snodgrass and told him that his accusations against Messer could not be confirmed because surveillance camera footage did not have audio and no one else was present. Bentley and another investigator, defendant Fannin, failed to interview other inmates in nearby cells who overheard Messer's comments. Snodgrass alleges that Bentley, Fannin, and Warden Barksdale “conspired to not have the investigation conducted thoroughly to obtain evidence.” (Id. 5.)

         Snodgrass filed his § 1983 complaint in February 2016. Liberally construed, [4] his pleading raises the following constitutional issues, as construed by the court:

(1) After failing to announce count, Messer and Bishop conspired to bring a false charge against Snodgrass for failing to stand for count, in violation of due process and the First Amendment;
(2) Messer sexually harassed Snodgrass and used excessive or otherwise unconstitutional force against him by conducting an unlawful strip search, in violation of the plaintiff's Eighth Amendment rights;
(3) Messer retaliated against Snodgrass for exercising his free speech rights;
(4) Raiford, Barksdale, and Clarke, as supervisors, failed to act on Snodgrass's sexual harassment complaint against Messer;
(5) Adams, Counts, and Barksdale violated Snodgrass's procedural due process rights during the disciplinary proceedings;
(6) Fannin and Bentley failed to investigate the sexual harassment complaint against Messer, in violation of Snodgrass's rights under the Eighth Amendment and PREA.

         In addition to these federal constitutional claims and interlocking allegations of conspiracy by various groups of defendants, Snodgrass alleges claims under state tort law, the Virginia Constitution, and VDOC operating procedures. As relief for the alleged violations, he seeks monetary and injunctive relief.

         The defendants have filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and Snodgrass has responded. Thus, the court finds the matter ripe for consideration.[5]

         II. Discussion

         A. ...


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