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Ferguson v. Messer

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

March 30, 2017

TERRY FERGUSON, Plaintiff,
v.
C.L. MESSER, et al., Defendants.

          MEMORANDUM OPINION

          Elizabeth K. Dillon United States District Judge.

         Terry Ferguson, a Virginia inmate proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983, alleging that the defendants subjected him to cruel and unusual living conditions, used excessive force against him, denied him due process, verbally abused him, denied him medical treatment, and retaliated against him. Defendants filed a motion for summary judgment, and Ferguson responded, making this matter ripe for disposition. Having considered the record, the court will deny in part and grant in part defendants' motion.

         I. BACKGROUND

         Ferguson alleges that on May 26, 2013, while housed at Red Onion State Prison (Red Onion), he was moved to a cell with no running water. He states that he told defendant Officers Arnold and Stallard about it and they told him that they would see what they could do. Thereafter, Ferguson told several other officers as the shifts changed, but “nothing was ever done to redress the matter, ” leaving him “in the cell with no water, thirsty and confused.” Ferguson remained in the cell for two weeks with no water in his sink. During that time, Ferguson could not wash his hands after using the bathroom, was “forced to consume his meals with unclean hands, ” was “forced to perform his prayer rituals without performing the required ablutions prior to prayer, ” was “unable to brush his teeth or wash his face, ” and was “forced to drink water from the toilet just to prevent dehydration.” Ferguson states that he “experienced fatigue, dry mouth, headaches, and abdominal pains and nausea as a result of insufficient water intake and from the consumption of toilet water.” (Am. Compl. ¶¶ 14-24, Dkt. No. 59-1.)

         On June 4, 2013, Ferguson complained to defendant Officers Messer and Bryant about the inoperable sink while they were delivering his meal, and they “ignor[ed]” his “plea” and closed his tray slot before giving him milk or juice. When Ferguson told Bryant that he did not get his milk and juice, Bryant squeezed the milk and told Ferguson that if he continued “bitching, ” Bryant would squeeze Ferguson's “balls” and would “squeeze juice into Ferguson's asshole to remind [him] of someone pissing on his brown eye.” Ferguson requested to speak with a supervisor, and Bryant and Messer “laughed.” In response, Ferguson put his arm in the tray slot “to obstruct the officer[s] from securing it” so that they would have to notify their supervisor. Messer refused to call a supervisor, and Messer and Bryant left Ferguson's cell with the tray slot unsecured. Messer and Bryant later returned to Ferguson's cell and, “without warning, ” Messer began to “vehemently spray [Ferguson] with a long blast of gas hitting him in the face, eyes, mouth, neck, etc, while he and Bryant simultaneously wrestled with [Ferguson's] arm until they were able to force it into the tray slot.” After the tray slot was secured, the officers left Ferguson's cell. Ferguson began to “scream and yell” to the officers for medical care or decontamination. Messer replied, “Use your water bitch! Oh, I forgot you don't have any, so stick your head in the toilet.” For hours, the gas made Ferguson feel “as if he were on fire, ” caused temporary blindness, and left him gasping for air, coughing, and vomiting. Messer and Bryant ignored his pleas for help. Ferguson alleges that he did not receive medical care or decontamination after being sprayed with the “chemical.” (Am. Compl. ¶¶ 27-44.)

         Later that evening, Bryant came to Ferguson's cell with a dinner tray, looked in the cell, stated, “You're not eating bitch, ” and left with the tray. At the end of his shift, Messer looked at Ferguson's cell and yelled, “Ferguson, you are going to have a long weekend.” (Id. ¶¶ 45-46.)

         On June 7, 2013, Messer returned to duty. Officers Sluss and Arnold deprived Ferguson of breakfast. Messer and Bryant denied Ferguson lunch and dinner. That evening, Ferguson was served a Disciplinary Offense Report that charged him with threatening bodily harm against Sluss at breakfast time earlier that day. Ferguson states that he “never uttered a word to Officer Sluss while he was serving breakfast meals, except when he responded [affirmatively] to the officer's question” about whether Ferguson wanted breakfast. Ferguson asserts that the report was fabricated by Sluss “in an attempt to cover up his misconduct of depriving [Ferguson] his breakfast meal.” (Id. ¶¶ 47-56.)

         On June 8, 2013, Officers Bryant, Messer, and Burke denied Ferguson breakfast. Messer and Bryant denied Ferguson lunch. Ferguson alleges that Messer placed an empty tray in Ferguson's tray slot so that, to the cameras, it would look like he gave Ferguson a meal, thereby allowing Messer to “circumvent prison policy of having to notify the Mental Health department and other authorities of a potential hunger strike . . . .” After mealtime, Messer and Bryant left the empty tray in Ferguson's cell. Messer and Bryant denied Ferguson dinner that evening. After the shift change, Ferguson was served with another Disciplinary Offense Report written by Messer for disobeying an order, alleging that Ferguson refused to return his tray. Ferguson asserts that the report was fabricated “in an attempt to cover up [Messer's] misconduct of depriving [Ferguson] his meals.” (Id. ¶¶ 57-68.)

         On June 9, 2013, Messer and Bryant denied Ferguson breakfast. When Messer walked by Ferguson's cell door, Ferguson told him that he wanted his meal, but Messer told Ferguson, “I told you until you answer to Sunshine, you will never eat on my watch.” Messer, Bryant, and Sluss denied Ferguson lunch. After they had served the other inmates' meals, Messer, Bryant, and Sluss “gathered around [Ferguson's] cell door and began to tease and antagonize him about not eating.” Messer also said, “Do you see what I'm doing? I will never feed you bitch, and I will keep marking on your chart that you're refusing to eat as I keep writing you charges to justify me not accessing your tray slot to feed you.” Thereafter, Sluss turned Ferguson's toilet off “for no reason.” Bryant and Arnold denied Ferguson dinner. Arnold stood at Ferguson's cell and asked, “You hungry bitch?” While Bryant was collecting trays from the other cells, he passed Ferguson's cell and said “I bet you know not to fuck with us again.” (Id.¶¶ 69-79.)

         Ferguson alleges that while he was denied meals for three consecutive days, he experienced “hunger pangs, fatigue, and headaches; his stomach seemed topsy-turvey, he had cramps and diarrhea; his cheeks appeared hollow, his eyes appeared to be sunken in, he had no energy, he was unable to perform daily physical and mental activities, he experienced severe weight loss, his body temperature dropped, and his body seemed to be shutting down.” Ferguson states that each day that he was denied meals, he “repeatedly pleaded to the officers to be fed, ” but was nevertheless denied meals. Ferguson alleges that he was “forced to drink water from the toilet bowl to prevent dehydration” on the three days that he was denied meals. (Id. ¶ 80-83.)

         Ferguson received another Disciplinary Offense Report for “threatening] to commit/killing or attempting to kill any person” on June 9, 2013, reported by Messer. Ferguson alleges that Messer fabricated the report “in an attempt to cover his misconduct of depriving” Ferguson of meals. (Id. ¶¶ 84-86.)

         That same day, after the shift change, Officer Williams entered the “chase closet” to turn on Ferguson's toilet. Williams also was able to reconnect Ferguson's water line to give him running water in his sink. (Id. ¶ 87.)

         Thereafter, Ferguson “retrieved the telephone and called the Virginia Sexual Assault/Sexual Harassment Hotline and reported Messer's and Bryant's sexual harassment and their attempt to kill [Ferguson] via starvation and dehydration.” On June 11, 2013, Ferguson spoke with an investigator concerning the telephone call and provided a written statement detailing everything that had happened. The investigator told Ferguson that an investigation would be conducted. (Id. ¶¶ 88-91.)

         On June 13, 2013, Ferguson attended the disciplinary hearing for the “fabricated” charges written by Messer and Sluss. Counselor Mullins acted as Ferguson's staff representative. Prior to the hearings, Mullins told Ferguson that it is “not her job to be his advocate or to help him with the preparation of defense strategies.” Sluss and Burke “forced” Ferguson to wear a spit mask to the hearing per the orders of Unit Manger (UM) Younce. Ferguson “acquiesced” to wearing the spit mask, despite believing that it was “unwarranted.” Ferguson was also “forced to sit with his back toward the entire disciplinary proceeding” per the orders of UM Younce. Disciplinary Hearing Officer (DHO) Counts “stood by and allowed [UM Younce] to enact the arbitrary practice.” Ferguson argues that he was denied due process at the hearing because he was denied witnesses, evidence, and the opportunity to present rebuttal testimony; his participation was “hindered” by the spit mask; and his staff representative, Counselor Mullins, did not help him. He also contends that the spit mask and his “seating arrangement” were done in retaliation for him “reporting Officers Messer and Bryant's misconduct to the prison investigator and to the . . . hotline.” He was found guilty and penalized with a twelve dollar fine for each of two charges and a 30-day period of administrative segregation for the third. (Id. ¶¶ 92-157.)

         After his hearing, Sluss and Burke escorted Ferguson back to his cell and “subjected [him] to a torrent of racial epithets and verbal abuse.” Later that evening, Ferguson received another Disciplinary Offense Report written by Sluss for “threatening to commit/killing or attempting to kill any person.” Ferguson asserts that the report was fabricated in retaliation for Ferguson reporting “Sluss and his coworkers' misconduct” to the prisoner investigator and hotline. Ferguson alleges that, “under duress, ” he accepted a penalty offer on the charge. DHO Counts signed the written disposition, and Deputy Warden Mathena and Regional Administrator Hinkle upheld the decision on appeal. Ferguson maintains his innocence of the disciplinary conviction. (Id. ¶¶ 158-68.)

         On July 10, 2013, Sergeant Dickerson and Sluss removed Ferguson from his cell “under the pretense” that they were checking to see if his sink and toilet were functioning properly, despite Ferguson demonstrating to them that they were. Sluss escorted Ferguson to a temporary cell and, on the way, told him that they were “going to teach [Ferguson] a lesson since he like[d] calling the sexual assault/sexual harassment hotline.” About ten to fifteen minutes after Ferguson arrived at the cell, Sgt. Dickerson arrived, instructed Ferguson to remove his clothes, and told Ferguson he would be given a “full body search.” After the search, Sgt. Dickerson gave Ferguson back only his underwear. Sgt. Dickerson, Lieutenant A. Mullins, and Messer then escorted Ferguson, who was wearing only underwear, to a “security strip[] cell, ” where he stayed for twenty-four hours. Ferguson states that he “was never told the reason(s) he'd been placed under such condition of confinement or who had authorized the strip[] cell status.” Ferguson alleges that he had no mattress, no bedding, no clothing, and no toiletries; the cell “reeked of feces, urine, and vomit”; the cell walls “were covered in bodily excretions”; the cell was extremely cold; and there was a “foul stench exuding from the ventilation.” Ferguson “repeatedly” asked to be removed from “such vile conditions, ” but his “pleas were routinely ignored.” (Id. ¶¶ 169-83.)

         Moments after being placed in the cell, Officer Dupuie placed “some papers” in the door handle and left. Ferguson asked to see the papers, but was told that he could not have them while on strip cell status. (Id. ¶¶ 184-85.)

         Ferguson alleges that while in the strip cell, his food was served on a styrofoam tray and without utensils. Because he had no soap, he “had to consume the little food that he could stomach, with dirty, foul hands.” Around 1:00 am, Ferguson received a mattress, but no sheets or blankets. Ferguson alleges that “the temperature of the cell became unbearable to the point that he was forced to get inside of the mattress to keep from freezing.” At breakfast, Ferguson “was forced to eat . . . with his unclean[] hands and fingers.” Ferguson contends that during his time in the strip cell, he was “unable to perform his prayer rituals since he could not complete the ablutions that precede his prayer.” That evening, Ferguson was removed from strip cell status. (Id. ¶¶ 187-99.)

         Ferguson received the papers that Dupuie had left in his door the previous day and discovered that he had received two Disciplinary Offense Reports, both written by Sgt. Dickerson, for possessing a weapon or sharpened instrument and for intentionally destroying or altering state property.[1] Ferguson alleges that he was denied due process with regard to these charges because they were never properly served on him and he was not given the opportunity to present evidence or request staff assistance or witnesses. Ferguson asserts that the reports were written in retaliation for Ferguson calling the hotline. (Id. ¶¶ 201-10.)

         On July 16, 2013, Sgt. Dickerson and Officer Powers took Ferguson to the disciplinary hearing on the two charges. Ferguson explained to DHO Counts that he had not been properly served with the Disciplinary Offense Reports and that he had never been given a penalty offer. DHO Counts then offered him a twelve dollar fine, and Ferguson declined the penalty offer. DHO Counts adjourned the hearing and had Ferguson escorted back to his cell. Ferguson claims that DHO Counts “railed him with obscenities” as he was leaving. (Id. ¶¶ 211-19.)

         When Ferguson arrived back at his cell after the hearing, Sgt. Dickerson entered the cell and removed the mattress because it allegedly “had been altered.” When Ferguson asked if he would receive another mattress, Sgt. Dickerson “looked at [Ferguson] and smiled.” “Later that evening, ” Ferguson told Lt. A. Mullins and UM Younce that he had no mattress, and they did not move him to a different cell or give him a mattress. Ferguson contends that he was forced to sleep on a metal bed frame for two consecutive nights, ...


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