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Cooper v. Duncan

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

May 23, 2017

AIMEE DUNCAN, ET AL., Defendants.


          Glen E. Conrad Chief United States District Judge

         Israel Ray Cooper, a Virginia inmate proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging that prison officials retaliated against him and violated his due process rights. After review of the complaint, the court concludes that the complaint must be summarily dismissed without prejudice and the pending motions dismissed as moot.


         Cooper is an inmate at Red Onion State Prison ("Red Onion"). On May 18, 2016, Cooper used the "PREA" sexual abuse hotline[1] to report that during his 90-day review, Lt. Gilbert relied on false evidence to recommend that Cooper remain in segregation. On May 24, 2016, Duncan wrote a disciplinary charge against Cooper for unauthorized use or abuse of the telephone. The disciplinary report states that Duncan wrote the charge based on an email received from the state-wide PRE A coordinator that day, advising her that Cooper's May 18 report was "non-PREA." (PL's Ex. C, at 7, ECF No. 1-1.) Cooper alleges that in writing the charge, Duncan committed violations of PREA procedures and retaliated against him.

         On June 23, 2016, Defendant Mullins conducted the disciplinary hearing on Cooper's charge for unauthorized use of the phone. Cooper alleges that the charge itself was not properly investigated or authorized by VDOC policies. He also contends that Mullins "fail[ed] to properly allow facts [or witnesses] to be presented" and was not impartial when he found Cooper guilty of this offense based on the email Duncan had received from the PREA coordinator. The penalty Mullins imposed was loss of telephone privileges for 30 days (from June 13 to July 12, 2016).

         On August 14, 2016, Cooper wrote a PREA grievance, complaining that Inmate Cashwell had threatened for several days to tell other inmates that Cooper was convicted of sex offenses with children and to arrange to cell with him so they could have sex. Cooper also claimed that Cashwell had personal information about him, purportedly provided by prison officials. Duncan issued a Level I response to Cooper's PREA grievance on September 13, 2016, stating that Duncan had reviewed these allegations and found insufficient evidence to substantiate them. Duncan's finding was affirmed on appeal by defendant Elam. Cooper alleges that these proceedings did not comport with PREA procedures. He complains that Duncan failed to interview him, Cashwell, or another witness, and ruled the grievance unfounded, and that as a result, Cashwell continued to sexually harass Cooper.

         On September 14, 2016, Cooper called the PREA hotline to report Duncan's PREA violations and Cashwell's harassment. Investigator Bentley took Cooper's statement on September 23, 2016, and took a note Cashwell had allegedly written, declaring his love for Cooper. In a letter dated September 27, 2016, Investigator Fannin notified Cooper that the investigation into his PREA complaint about Cashwell had proved to be unsubstantiated. Neither Fannin nor Bentley interviewed the other witnesses Cooper had identified for them.

         Liberally construed, Cooper's § 1983 complaint alleges the following claims for relief: (1) In May 2016, Duncan violated PREA procedures and brought a retaliatory disciplinary charge against Cooper that kept him in segregation; (2) in September 2016, Duncan, Fannin, and Bentley did not conduct proper PREA investigations and failed to protect Cooper from Cashwell, in violation of the Eighth Amendment; and (3) Mullins violated Cooper's due process rights during the disciplinary proceedings in September 2016. As relief, Cooper seeks an interlocutory injunction directing that Cashwell be kept away from him, monetary damages, and expungement of the disciplinary convictions.


         The court is required to dismiss any action or claim filed by a prisoner against a governmental entity or officer if the court determines the action or claim is frivolous, malicious, or fails to state a claim on which relief may be granted. 28 U.S.C. § l9l5A(b)(1). In order to state a claim in any federal civil action, the plaintiffs "[fj actual allegations must be enough to raise a right to relief above the speculative level, " to one that is "plausible on its face, " rather than merely "conceivable." Bell Atl. Corp. v. Twomblv, 550 U.S. 544, 570 (2007).

         To state a cause of action under §1983, a plaintiff must establish that he has been deprived of rights guaranteed by the Constitution or laws of the United States and that this deprivation resulted from conduct committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42 (1988). Claims of retaliation by prison inmates are generally treated with skepticism because "[e]very act of discipline by prison officials is by definition 'retaliatory' in the sense that it responds to prisoner misconduct." Cochran v. Morris. 73 F.3d 1310, 1317 (4th Cir.1996). To state a colorable claim of retaliation, Cooper must allege facts supporting a reasonable inference that the defendant took the alleged retaliatory action because of plaintiff s exercise of some constitutionally protected right. Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994). Bare assertions of retaliation, without supporting facts, do not establish a claim of constitutional dimension. Id. at 74-75.

         Cooper's submitted exhibits indicate that Duncan filed the disciplinary charge in May 2016 in response to the PREA coordinator's email stating that Cooper had committed the charged misconduct: unauthorized use of the telephone. Specifically, the charge stated that it was based on the coordinator's determination that Cooper had placed a PREA call about a non-PREA issue. Cooper disagrees with the coordinator's finding, believes his call was covered by PREA, and characterizes Duncan's actions as retaliatory. This bare and conclusory assertion of retaliation is not sufficient to support a § 1983 claim, however. Adams, 40 F.3d at 74. Cooper merely alleges without any factual support that Duncan was motivated to bring the charge, not to discipline him for his designated misuse of the PREA call system, but to retaliate against him for the particular statements he made in his non-PREA call (i.e. that he did not like Gilbert's findings at his classification review). Because the mere labeling of an action as retaliation cannot support an actionable § 1983 claim, [2] the court will summarily dismiss Cooper's retaliation claim pursuant to § l9l5A(b)(1). See Twombly, 550 U.S. at 555 (holding that pleading presenting merely "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do" to state an actionable civil claim).

         Cooper also has stated no viable § 1983 claim against any prison officials for violating PREA procedures. This court and others have found no basis in law for a private cause of action under § 1983 to enforce an alleged PREA violation. Chapman v. Willis. No. 7:12-CV-00389, 2013 WL 2322947, at *4 (W.D. Va. May 28, 2013) (Kiser, J.) (citing other cases). "Nothing in the PREA suggests that Congress intended to create a private right of action for inmates to sue prison officials for noncompliance with the Act." IcL Thus, under § l9l5A(b)(1), the court must summarily dismiss Cooper's § 1983 claim based on officers' alleged violation of their duties under the state's PREA procedures.

         Next, Cooper complains that Duncan and the investigators failed to protect him from inmate Cashwell's verbal sexual harassment and taunting. While prison officials must "take reasonable measures to guarantee the safety of the inmates, " Hudson v. Palmer, 468 U.S. 517, 526-527 (1984), "[t]o the extent that [prison living] conditions are restrictive and even harsh, they are part of the penalty that criminal ...

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