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Snodgrass v. Gilbert

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

March 17, 2017

KEVIN SNODGRASS, Plaintiff,
v.
CHRISTOPHER GILBERT, ET AL., Defendants.

          MEMORANDUM OPINION

          Glen E. Conrad Chief United States District Judge

         Kevin Snodgrass, a Virginia inmate proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging claims against prison officials of conspiracy, retaliation, unconstitutional living conditions, sexual harassment, and due process violations, along with multiple state law claims. Upon review of the record, the court finds that the defendants' motion for summary judgment must be granted in part on the ground of qualified immunity and denied in part on the merits, and that Snodgrass' motion for summary judgment must also be denied.

         I. BACKGROUND

         A. Use of Force Incident

         Snodgrass, an inmate at Red Onion State Prison ("Red Onion"), alleges the following sequence of events related to his claims.[1] On September 21, 2015, after two officers searched Snodgrass' cell and placed him back into the cell, defendant Mead came to his cell and told him to "cuff up" to be escorted to prehearing detention as ordered by defendant Gilbert. (Compl. ¶ 28, ECF No. 1.) Snodgrass refused to comply with this order and demanded to see a supervisor. Gilbert came to the cell door and told Snodgrass that he had been charged with a disciplinary infraction for "having the contents of MASH." (Id. ¶ 29.) Snodgrass, who denies having any "MASH contents, " insisted that he was not a segregation inmate who needed to be restrained to leave his cell and volunteered to come out without restraints.[2] (Snodgrass Decl. ¶ 5, ECF No. 30.) When he continued to refuse to comply with cuffing procedures as ordered, Gilbert applied three bursts of OC spray[3] to Snodgrass' facial area.[4] (Compl. ¶ 32; Gilbert Aff. Encl. A, at 6, ECF No. 22-3.) Blinded and "choking" from the spray, Snodgrass then complied with procedures to be restrained. (Compl. ¶ 32,, ) Snodgrass was decontaminated in the shower and checked by a nurse for complaints of burning eyes, but no other injuries. The nurse said he "could rinse eyes more when placed in cell." (Gilbert Aff. Encl. A.) Thereafter, Gilbert placed Snodgrass in a "strip cell, " wearing only his "boxers and socks, with nothing else to wash off the OC spray." (Compl ¶ 33.)

         B. Sexual Harassment

         On September 22, defendant Lewis denied Snodgrass a shower and recreation for no "valid reason, " stating: "[A]fter the bullshit you pulled yesterday, you're not going anywhere while you['re] back here[, ] and after what you reported on Messer." (Id. ¶ 34.) Lewis threatened that "if you come out that cell in restraints-I'm going to ram something much more up your ass than what Messer was going to." (Id.) When Snodgrass threatened to file a PREA report about this sexual comment, [5] Lewis said he did not care and continued, "I heard about you filing affidavits for Donnell Blount on me[Y]ou're a F***in SNITCH." (Id. ¶ 35.) Snodgrass filed a PREA report about Lewis' sexual harassment that was deemed unfounded; Snodgrass complains that he never received a report of the investigation of his PREA report and states that no such investigation occurred.[6] ¶ 79-83

         C. Disciplinary Proceedings

         On September 22, an officer served Snodgrass with three disciplinary infractions: possession of intoxicants confiscated from his cell after the shakedown on September 21 (Charge ROSP-2015-1724); disobeying orders to comply with restraint procedures on September 21 (Charge ROSP-2015-1726); and threatening bodily harm against Gilbert on September 21 (Charge ROSP-2015-1725).[7] He was also served with a disciplinary infraction for threatening bodily harm to Lewis on September 22 (Charge ROSP-2015-1727). (Counts Aff. End. E, at 32, ECF No. 22-2.)

         Defendants Gilbert and Kegley conducted an Institutional Classification Authority ("ICA") review on September 23, allegedly without providing Snodgrass 48 hours prior notice as required by VDOC policies, and placed him on prehearing detention to await the outcome of the pending disciplinary charges. Snodgrass remained on detention status for 35 days without receiving an interim review of that status as required under VDOC policies.

         Snodgrass contends that he never received a hearing on the intoxicants charge (ROSP-2015-1724), but was still charged a $5.00 fine for it. Defendants' evidence indicates that Snodgrass accepted a penalty offer for this charge, although he could not sign the offer himself because he did not have his property at that time and had no pen. Snodgrass denies that he accepted a penalty offer. (Snodgrass Decl. ¶ 11, ECF No. 30.)

         On September 30, defendant Counts conducted the disciplinary hearings for disobeying an order (ROSP-2015-1726), threatening harm against Gilbert (ROSP-2015-1725), and threatening harm against Lewis (ROSP-2015-1727). Kegley, Snodgrass' assigned staff advisor, did not provide him any assistance. For two of the hearings, Counts denied Snodgrass' requests for documentary evidence and review of video footage. Counts also denied Snodgrass' request for witness statements from other inmates. Counts found Snodgrass guilty of these charges, based on the reporting officer's description of the offense conduct and penalized him with loss of telephone privileges for 60 days for each of the three charges. (Counts Aff. Encl. C, D, and E, at 3, 20, and 33, ECF No. 22-2.)

         Snodgrass appealed the findings of guilt. On November 9, 2015, Warden Barksdale dismissed the threat charge (ROSP-2015-1725), but the other charges were upheld. Appeals of the other charges tried on September 30 were unsuccessful. Snodgrass alleges that multiple defendants conspired "to fabricate [all four] charges[, find him guilty without due process], and have [him] housed in segregation unconstitutionally." (Id. ¶¶ 46, 57.)

         D. Long-term Segregation Procedures

         Level S ("SLS") inmates are those who must be managed in a long-term segregation setting.[8] Under current policies, once a VDOC inmate is classified as SLS, he may participate in the Segregation Reduction Step-Down Program set out in Operating Procedure ("OP") 830.A. (OP 830.A, at 84-95, ECF No. 30-1.) Effective February 18, 2013, the step-down program is intended to provide "established procedures for incentive based offender management which will create a pathway for offenders to step-down from Security level S to lower security levels in a manner that maintains public, staff and offender safety." (OP 830. A, § I.)

         Each newly classified SLS inmate is assessed and assigned to the appropriate privilege level: intensive management ("IM"), special management ("SM"), or the reentry unit (reserved for inmates within two years of release). (OP 830.A, § III.) An inmate is assigned to SM status if evaluators find that he has a history of "repeated disruptive behavior at lower level facilities, . . . fighting with staff or offenders, and/or violent resistance" that harmed staff or other inmates, but "without the intent to invoke serious harm, . . . kill, or [cause] serious damage to the facility." (Id.) Inmates are further sub-classified under OP 830.A as follows, from IM-0 or SM-0 as the most restrictive statuses, to Security Level 5 General Population as the least restrictive:

Intensive Management (IM):
IM-0
IM-1
IM-2
IM-SL6
Special Management (SM):
SM-0
SM-1
SM-2
SM-SL6
Step-Down-Level 6 General Population
Structured Living-Phase 1 and Phase 2
Security Level 5 General Population

         The step-down program in OP 830.A is a so-called cognitive program that involves meeting pro-social goals and requires the inmate to complete a seven-workbook set called the Challenge Series, remain infraction free, exhibit responsible behavior, and participate in self-improvement and education programs. When an SM-0 inmate makes sufficient progress toward the goals of that step, he will be advanced to SM-1 or SM-2, where he will be permitted additional privileges, including use of electronics and the chance to apply for an in-pod job. An SM-1 or SM-2 inmate who does not meet the standards for discipline, responsible behavior, self-improvement, and programming can be moved back to SM-1 or SM-0. There, he will remain, stripped of the higher privileges of his prior step until he completes the goals to be advanced once again.

         While assigned to any of these segregation levels, the inmate's classification status will be periodically reviewed by the Institutional Classification Authority ("ICA"). Members of the Unit Management Team, a multi-disciplinary group of staff who work in the housing units, track and rate each inmate's progress toward the goals of his assigned step. They rate his behavior every week as poor, acceptable, or good in each of several categories, such as cell compliance, personal hygiene, standing for count, and respect. Counselors rate the inmate's program participation every week as incomplete, complete, or positive effort. Officers in each of these groups are encouraged to communicate with inmates about these ratings - to acknowledge positive performance and motivate improvement where needed.

         In addition to Unit Management Team review of an inmate's classification status, certain classification decisions are also to be reviewed by a Dual Treatment Team made up of officials from both Red Onion and Wallens Ridge State Prison ("Wallens Ridge"), by the wardens of the two institutions, or by the VDOC regional operations chief. In addition to this multi-level review scheme, "[a] team external to [Red Onion and Wallens Ridge] will perform an annual review of each [SLS] offender's case." (OP 830.A(IV)(K)(1)(a)). This review includes a reassessment of whether the inmate continues to meet the criteria for the IM or SM path to which he has been assigned.

         All SLS inmates in the IM and SM categories are housed in single cells. When any SLS inmate leaves his cell, he must be restrained in handcuffs and shackles. In full restraints, he is then escorted by two officers at all times to recreation, to the shower, or to medical appointments. Outdoor recreation consists of being locked in a fenced, cage-like area to walk or do calisthenics.

         When the SM inmate completes the Challenge Series and meets the goals for SM-2, he may be decreased from SLS to Security Level 6 ("SL6"), a classification level with two phases. Inmates in SM-SL6 Phase 1 are still in single cells, but they are permitted to leave their cells unrestrained for movement to the shower and recreation and, gradually, to participate in the Thinking for a Change curriculum with other inmates in groups of up to fifteen participants. Inmates in SM-SL6 Phase 2 have cell mates, are unrestrained for showers and recreation, have outside recreation with other inmates for an hour, twice a week, and can walk to meals with other inmates to eat their meals together in the dining hall. If the inmate completes the goals in SL6, he may then be reduced to Security Level 5 and be placed in a general population setting.

         E. Snodgrass' Classification Proceedings

         Snodgrass contends that OP 830.A is an unconstitutional policy, because inmates receive "no due process" during reviews to determine their progress through this step-down program back to general population status. (Id. ¶ 98.) He complains that his good behavior has become secondary to his compliance with the step-down requirements such that the program prolongs his time in SLS and delays him from regaining a good time earning rate.

         Defendants Raiford and Kegley conducted a review of Snodgrass' security level and good time earning rate on October 6, 2015, with him present. According to their ICA report, they recommended changing him from SM-SL6 back to SLS, "due to [his security points] in conjunction with poor behavior and adjustment" to SM-SL6. (Snodgrass Exh. C, at 4, ECF No. 30-1.) The report noted that Snodgrass had been moved to SM-SL6 three times since October 2014, only to incur new disciplinary charges and be moved back to SLS; the ICA noted that Snodgrass had received 13 infractions between March 12, 2015, and the date of the hearing, including the charges from September 21 and 22. Defendants Hamilton and Washington reviewed and approved the ICA's October 2015 recommendation, and Snodgrass' security level was changed to SLS. His good time earning rate was also changed to Level 4 (earning no good conduct time). Snodgrass filed grievances and appeals, complaining that these classification reviews and changes were deficient under VDOC policies, but the decisions were upheld.

         On October 26, the ICA reviewed Snodgrass for a step-down privilege assignment and recommended placing him in SM-0, and he was moved to SLS housing; the SM-0 recommendation was approved on November 2. Later that month, after one of the three September disciplinary charges was dismissed on appeal, Snodgrass asked officials to consider this fact as grounds to remove him from SLS. He remained at SM-0.

         On November 11, 2015, defendant Adams asked Snodgrass if he was going to testify for inmate Blount. Snodgrass did testify on November 19, 2015, in Blount's civil action against defendants Adams, Lewis, Raiford, and other Red Onion officers. The next day, Adams banged on Snodgrass' cell door and threatened that his time in SLS would be longer because he had testified for Blount. When Snodgrass' family visited him on November 25, 2015, defendant Barksdale told them that Snodgrass "needed to worry about himself and stop trying to fight other people['s] battles, because he's only going to make it harder on himself while he's in segregation." (Compl. ¶ 93.) Snodgrass "became very stressed" after hearing his family's report of Barksdale's threat in response to his exercise of free speech rights. Then, Adams saw Snodgrass at the grievance kiosk on November 26 and called him a "F***'n SNITCH!" (Id. ¶ 92.) Snodgrass believes that multiple defendants conspired to retain him longer in SLS status in retaliation for his testimony in Blount's civil case.

         On December 2, 2015, defendants Duncan and Swiney conducted an ICA review of Snodgrass, in violation of due process and VDOC policies. They relied on disciplinary infractions outside the applicable review period to reassign him to SM-0.

         Snodgrass filed a request on December 3, 2015 to receive the Challenge Series books and attend classes to complete this series as required to progress in the step-down program to leave SLS. An unidentified treatment staff person told him that unspecified defendants had said to "hold off progressing [Snodgrass] through segregation until they see what happens in [Blount's] law suit." (Id. ¶ 97.) For several weeks, Snodgrass was not allowed to start the Challenge Series or attend classes. On December 17, defendant Gallihar threatened that Snodgrass would remain longer in SLS if he continued to "address his housing status" with informal complaints and grievances. (Id. ¶ 109.) Other officers refused Snodgrass' requests for such forms. After Snodgrass filed an informal complaint on January 10, 2016, about a legal mail problem, defendant Gilbert threatened that if Snodgrass kept up "this 'SHIT, ' that he'll find a way to house [Snodgrass] as an (IM) (inmate)." (Id. ¶ 118.)

         Treatment staff told Snodgrass on January 27, 2016, that he would not receive Book 3 of the Challenge Series until he earned SM-1 status. On January 28, 2016, defendant Swiney told Snodgrass that he would not "advance[e] his Security Level [be]cause of recent law-suits that [Snodgrass was trying to file] against his officers." (Id. ¶ 114.) On January 29, 2016, defendants Stewart and Gilbert reviewed Snodgrass' SLS status; they did not allow him to present witnesses or documentation, and based on evidence not presented at the hearing, they recommended that he remain at SM-0. This decision was also based, in part, on Snodgrass' failure to complete the appropriate Challenge Series workbook that had been denied to him for more than ninety days. Defendants Gilbert and Hall, at a review on February 3, 2016, determined that Snodgrass should remain at SM-0. When Snodgrass asked a treatment staff member that day if he could attend class, he was told that according to supervisors, he could not attend class while he was SM-0.

         On February 4, 2016, defendant Stewart "denied the Security Level Release of [Snodgrass] with threats of fake reports if he continued to Bitch about his Security Level." (Id. ¶ 123.) Later that same day, defendant Gallihar denied Snodgrass SM-1 status "due to 'lack of respect' and [because] the bar was not met." (Id. ¶ 124.) In an informal review on February 26, 2016, Snodgrass was assigned to SM-1 status.

         On March 17, 2016, staff conducted a corrective ICA hearing to address issues Snodgrass had raised in a grievance about his December 2 review proceeding.[9] Although the correction included a reduction in Snodgrass' total point score under VDOC classification policies, from 69 to 48, this score was still within the range of an SLS assignment. The ICA recommended that Snodgrass remain assigned to SLS, and the Central Classification Services unit approved that status on March 23. Snodgrass complains that the ICA failed to return his good time earning rate or give him credit for completing the Challenge Series, among other procedural violations. On July 5, 2016, Gilbert "threatened [Snodgrass] with longer confinement and a denial of [SM-2] privileges/status for filing this current law-suit against him and friends. He called [Snodgrass] a 'Dumb F***ing N***** who thinks he's a lawyer.'"[10] (Snodgrass Stmt, of Undisp. Facts, . ¶72.)

         F. SLS Living Conditions

         Snodgrass also contends that living conditions in SLS violate the Eighth Amendment. Specifically, Snodgrass states that he

was confined for (23) hours a day in a cell, and deprived of most of his personal property as well as the ability to work, attend educational and vocational programs, watch tel[e]vision, associate with other prisoners, attend outdoor recreation in a congregated setting with the ability to participate and engage in sports and other congregate recreational activities, attend meals with other prisoners, attend religious services, receive contact visitation with ...

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