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Hubbert v. Washington

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

March 22, 2017

HASSIN HUBBERT, Plaintiff,
v.
G. K. WASHINGTON, et al., Defendants.

          MEMORANDUM OPINION

          Hon. Michael F. Urbanski United States District Judge.

         Hassin Hubbert, a Virginia inmate proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983, naming current and former staff of the Virginia Department of Corrections ("VDOC") and Red Onion State Prison ("Red Onion") as defendants. Plaintiff complains that his classification and incarceration at Security Level S in Red Onion between August 2013 and October 2014 violated the Eighth and Fourteenth Amendments of the United States Constitution. Previously, the court had granted Defendants' first motion for summary judgment in part as to the Eighth Amendment claim, denied it as to the Fourteenth Amendment procedural due process claim, and required additional briefing and exhibits. Defendants have filed a second motion for summary judgment with the requested exhibits, to which Plaintiff responded, making this matter ripe for disposition. After reviewing the expanded record, including the sealed records, the court grants Defendants second motion for summary judgment.

         I.

         The procedural history of Plaintiff s confinement at Keen Mountain Correctional Center ("KMCC") and Red Onion are detailed in the court's prior memorandum opinion, and it is unnecessary to repeat that information here. Instead, the court describes the relevant incidents of prison life expected for an inmate classified at Level S in Red Onion and for which Plaintiff commenced this action.[1]

         Red Onion's Level S inmates may be designated in one of two main categories: Intensive Management ("IM") or Special Management ("SM").[2] From the most to least restrictive security classifications, IM inmates are designated as IM-0, IM-1, IM-2, and IM-SL6, and SM inmates are designated as SM-0, SM-1, and SM-2.[3] SM-2 inmates may be reduced to Level 6's Structured Living Phase 1 and then to Phase 2. Graduation from Phase 2 makes the inmate eligible to be assigned to Level 5 and housed in a general population unit. Plaintiff was designated as IM for approximately three months and as SM for approximately eleven months.

         When inmates exhibit positive behaviors and successfully complete established goals, they are rewarded with more privileges via a reduction in their security classifications. All Level S inmates are given the opportunity to participate in the "Challenge Series, " a goal-oriented, incentive-based segregation housing plan for inmates to study pro-social goals via seven workbooks. A multi-disciplinary group of staff who work in the housing unit called the Unit Management Team tracks and rates each Level S inmate's weekly performance for things like personal hygiene, respect, and standing for count as achievable progress toward the next lower security level. Counselors also rate each inmate's participation as incomplete, positive effort, or complete. Staff in both groups should communicate the ratings to inmates, acknowledge positive performance, and motivate inmates for improvement.[4] An IM or SM inmate who does not satisfy program criteria at any time can be denied a "step down" to a lower classification or returned to a higher classification level.

         During the time relevant to this case, male Level S inmates were permitted numerous personal property: shoes; clothing; bedding; towels; a toothbrush; a calendar; a pen; an address book; approximately forty first-class stamps; reading material; reading glasses; a radio; an audio player[5]; batteries; comb; hairbrush; shaving razor; watch; wedding band; eyeglasses; prescribed medical items; and religious items.[6] Level S inmates are restrained in handcuffs and shackles, are strip searched, and are escorted by several officers whenever they leave their cells.

         IM and SM inmates are afforded similar privileges. All IM inmates had the following minimum privileges: two library books per week; religious and legal materials in the cell; commissary; educational and religious television programs displayed on a pod wall; a radio; an audio player; individual in-cell correctional programs; two hours of outside[7] recreation per week; two twenty-minute phone calls per month; three showers per week; and a non-contact visit for one hour per week.[8] Inmates in IM levels less restrictive than IM-0 receive greater content or frequency of the privileges like more library books per week and more access and variety of in-cell television programs. IM-2 and IM-SL6 inmates may have jobs, and notably, IM-2 and SM-2 inmates may receive correctional programming in groups of up to five inmates. Per policy, IM and SM inmates receive the same types of meals as served to the general population, but IM and SM inmates eat their meals alone in their cells.

         An inmate's classification is reduced from Level S to Level 6 Structured Living when staff determines an SM-2 inmate has satisfactorily completed the Challenge Series curriculum and achieved the behavioral goals of SM-2. The purpose of Level 6 Structured Living is to reintroduce inmates into a social environment and to test their readiness for possible transfer to the general population at Level 5. Phase 1 inmates are single celled, are allowed to exit a cell and enter the pod individually, are unrestrained during showers and recreation, have individual and group therapy, enjoy outside recreation two hours per week, may listen to audio books, and walk as a group to the dining hall to eat group meals. Phase 2 inmates have the same privileges as Phase 1 but are housed with a cell mate.

         Plaintiff complains that Level S inmates "constantly throw feces at the guard and smear it all over the wall and their cells ....[, ] kick and bang on the door all day and night[, ] and flood their cells when they don't get what they want...." Plaintiff also complains that the following conditions of his segregation were more restrictive than conditions experienced by inmates in general population during his approximate 420 day[9] stay at Level S: he could not buy as much from the commissary; he was deprived of personal property like a television, a JP-4 personal audio player, headphones, sneakers, long Johns, and surge protectors; he earned a lower rate of good conduct time; his cell door was constructed with more metal; it was not as easy to communicate with other inmates; he no longer had out-of-cell recreation up to five hours a week; his outside recreation was limited to a fenced in area with barbed wire; he could shower only three times a week; he ate his meals alone in his cell; he was escorted and wore security restraints while moving inside the prison; his cell was searched more often; he was strip searched more often; his communications were "under surveillance" constantly; visitation was non-contact; and he could not participate in group educational or religious classes.[10]

         II.

         Defendants argue that they are entitled to qualified immunity and summary judgment. Qualified immunity permits "government officials performing discretionary functions ... [to be] shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."[11] Harlow v. Fitzgerald. 457 U.S. 800, 818 (1982); In re Allen. 106 F.3d 582, 593 (4th Cir. 1997) ("[A]n official may claim qualified immunity as long as his actions are not clearly established to be beyond the boundaries of his discretionary authority."). Once a defendant raises the qualified immunity defense, a plaintiff bears the burden to show that a defendant's conduct violated the plaintiffs right. Bryant v. Muth. 994 F.2d 1082, 1086 (4th Cir. 1993).

         A party is entitled to summary judgment if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact. Fed.R.Civ.P. 56(a); see Williams v. Griffin. 952 F.2d 820, 823 (4th Cir. 1991) (recognizing a party is entitled to summary judgment if the record as a whole could not lead a rational trier of fact to find in favor of the non-movant). "Material facts" are those facts necessary to establish the elements of a party's cause of action. Anderson v. Liberty Lobby. Inc.. 477 U.S. 242, 248 (1986). A genuine dispute of material fact exists if, in viewing the record and all reasonable inferences drawn therefrom in a light most favorable to the non-moving party, a reasonable factfinder could return a verdict for the non-movant. Id. The moving party has the burden of showing - "that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett. 477 U.S. 317, 325 (1986). If the movant satisfies this burden, then the non-movant must set forth specific facts that demonstrate the existence of a genuine dispute of fact for trial. Id. at 322-24. A court may not resolve disputed facts, weigh the evidence, or make determinations of credibility. Russell v. Microdyne Corp.. 65 F.3d 1229, 1239 (4th Cir. 1995); Sosebee v. Murphy. 797 F.2d 179, 182 (4th Cir. 1986). Instead, a court accepts as true the evidence of the non-moving party and resolves all internal conflicts and inferences in the non-moving party's favor. Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979). A plaintiff cannot use a response to a motion for summary judgment to amend or correct a complaint challenged by the motion for summary judgment. Cloaninger v. McDevitt. 555 F.3d 324, 336 (4th Cir. 2009).

         III.

         The remaining claim before the court concerns whether Plaintiffs confinement in Red Onion at Level S violated procedural due process guaranteed by the Fourteenth Amendment. The court finds that it did not and awards the Defendants qualified immunity and summary judgment.

         The Due Process Clause of the Fourteenth Amendment prohibits a state from depriving "any person of life, liberty, or property without due process of law." U.S. Const, amend. XIV, § 1. "To 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."[12]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 ...


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