United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (GRANTING MOTION FOR SUMMARY
E. HUDSON, UNITED STATES DISTRICT JUDGE
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.)
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
Defendants 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)).
STANDARD FOR SUMMARY JUDGMENT
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)).
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).
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 and some grievance material.
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.
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."
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.)
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 ...