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Leonard v. W.W. Pixley

United States District Court, E.D. Virginia, Richmond Division

May 16, 2017

BOBBY JOE LEONARD, Plaintiff,
v.
W.W. PIXLEY, et al., Defendants.

          MEMORANDUM OPINION (GRANTING MOTION FOR SUMMARY JUDGMENT)

          HENRY E. HUDSON, UNITED STATES DISTRICT JUDGE

         Bobby Joe Leonard, a Virginia inmate proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983 action. Leonard's claims flow from the allegedly unconstitutional treatment Leonard received after he sexually assaulted his cellmate in Sussex II State Prison ("Sussex II"). Specifically, Leonard contends that:

Claim 1 "I was stripped of my liberty and suffered the loss of my income and property ... when I was removed from my cell in general population and was placed in administrative segregation where I have now been held for over six (6) months without any procedural due process .. .." (Compl. 4, ECF No. I.)[1]
Claim 2 The conditions in administrative segregation violated the Eighth Amendment because "I have been denied any form of recreation outside of the cell for more than (3) months, and because the portions of food being served has caused me to lose forty-six (46) pounds ... in six months" (Id.)

         Defendants[2] have moved for summary judgment on the grounds that Leonard has failed to exhaust his administrative remedies and his claims lack merit. Leonard has responded. For the reasons set forth below, Claim 2 will be dismissed for lack of exhaustion and Claim 1 will be dismissed for lack of merit. Furthermore, Leonard's complaints that he lost income and property because of his placement in segregation are subject to summary dismissal under 28 U.S.C. § 1915(e)(2) and will not be considered further. See Jordan v. Rodriguez, No. 3:11CV193, 2013 WL 4759247, at *3 (E.D. Va. Sept. 4, 2013) (citing Wadhams v. Procunier, 772 F.2d 75, 78 (4th Cir. 1985)); Henderson v. Capital Constr., 3:08cv207-HEH, 2011 WL 977580, at *5 (E.D. Va. Mar. 15, 2011) (citing Backus v. Ward, No. 98-6331, 1998 WL 372377, at *1 (4th Cir. June 8, 1998); Altizer v. Paderick, 569 F.2d 812, 813 (4th Cir. 1978)).

         I. STANDARD FOR SUMMARY JUDGMENT

         Summary judgment must be rendered "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). It is the responsibility of the party seeking summary judgment to inform the court of the basis for the motion and to identify the parts of the record which demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file." Id. at 324 (internal quotation marks omitted). When the motion is properly supported, the nonmoving party must go beyond the pleadings and, by citing affidavits or '"depositions, answers to interrogatories, and admissions on file, ' designate 'specific facts showing that there is a genuine issue for trial."' Id. (quoting former Fed.R.Civ.P. 56(c) and 56(e) (1986)).

         Defendants asks the Court to dismiss Claim 2 because Leonard failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a). As exhaustion of administrative remedies is an affirmative defense, Defendants bear the burden of pleading and proving lack of exhaustion. Jones v. Bock, 549 U.S. 199, 216 (2007).

         In support of their Motion for Summary Judgment, Defendants submit, inter alia, : (1) an affidavit from A. James, the Institutional Ombudsman at Sussex II (Mem. Supp. Mot. Summ. J. Ex. 1 ("James Aff."), ECF No. 21-1); (2) a copy of Virginia Department of Corrections ("VDOC") Operating Procedure § 866.1 (id. End. A. ("Operating Procedure § 866.1")); (3) copies of grievance materials submitted by Leonard (id. Ends. B-C); (4) an affidavit from Tracy Ray, the Warden of Sussex II (Mem. Supp. Summ. J. Ex. 2 ("Ray Aff."), ECF No. 21-2); and (5) an affidavit from Natarcha Gregg, the Dietician for the VDOC (Mem. Supp. Mot. Summ. J. Ex. 3 ("Gregg Aff."), ECF No. 21-3). Leonard responded to the Motion for Summary Judgment by filing a largely unsworn response[3] and some grievance material.

         In light of the foregoing submissions, the following facts are established for the Motion for Summary Judgment. The Court draws all permissible inferences in favor of Leonard.

         II. UNDISPUTED FACTS

         Leonard was confined in Sussex II from March 14, 2012 through December 21, 2016, when he was transferred to Wallens Ridge State Prison. (Ray Aff. ¶ 4.) "[O]n July 29, 2015, Leonard was removed from the general population at Sussex II and was placed in investigative segregation after his cellmate reported to staff that he was raped by Leonard." (Id. ¶ 5.) On August 23, 2015, Leonard's "housing status was changed from investigative segregation to administrative segregation pending the conclusion of the investigation. Leonard remained in segregation in Housing Unit 3B until he was transferred to Wallens Ridge State Prison on December 21, 2016." (Id.)

         "During his confinement to segregation, Leonard's status was reviewed by the [Institutional Classification Authority ("ICA")] on July 29, 2015, August 13, 2015, September 9, 2015 (annual review), October 29, 2015, January 29, 2016, March 29, 2016, April 20, 2016, May 10, 2016, August 2, 2016, August 30, 2016 (annual review) and December 19, 2016." (Id. ¶ 6.)

         "Unless security or safety considerations dictate otherwise, offenders housed in segregation are allowed a minimum of one hour of out of cell exercise five separate days each week in a supervised area-----Offenders assigned to . .. segregation .. . receive the same ...


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