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Muhammad v. Smith

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

August 8, 2017

HAPPY EARL SMITH, et al., Defendants.


          Glen E. Conrad United States District Judge

         Abdul-Hamza Wali Muhammad, a Virginia inmate proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. Liberally construing Muhammad's complaint, he asserts four misjoined claims in his complaint, alleging that: (1) rectal examinations performed on him constituted sexual assault, (2) his placement on suicide watch was retaliatory; (3) certain classification decisions were made without due process, and (4) denial of the darkest available tint on his eye glasses was deliberate indifference, all in violation of his constitutional rights.

         Muhammad is incarcerated at Red Onion State Prison ("Red Onion"), a high security facility in Pound, Virginia, operated by the Virginia Department of Corrections ("VDOC") where the alleged violations occurred. In his verified complaint, Muhammad sues the following VDOC and Red Onion officials: Fred Schillings, Marcus Elam, Earl R. Barksdale, Israel D. Hamilton, Victoria Phipps, Patti Harless, Rebellion Deel ("Deel"), Arvil J. Gallihar, Geraldine Gene Baker, Amee B. Duncan, Kelly M. Stewart, Joe Fannin, Jason Bentley, T. Huff, D. Trent, Lt. Gilbert, Sergeant Clinton Deel ("Sgt. Deel"), Officer Muffins, Officer Moore, Officer Belcher, Officer Brown, Officer Martin, Officer Freeman, K.D. Gibson, and Michael C. Younce ("the non-medical defendants"). He also sues Dr. Happy Earl Smith and Dr. Charles Owens, a physician and an optometrist, respectively, who provided him medical care at Red Onion. As relief, Muhammad seeks monetary damages and declaratory and injunctive relief referring him to a gastroenterologist and ordering his transfer away from Red Onion and western Virginia.[1]

         The defendants have filed motions to dismiss, or in the alternative, motions for summary judgment. Muhammad has responded to the motions and has also filed a motion for summary judgment. He seeks to incorporate by reference into his responses the 41 two-page affidavits and other documents that he has submitted to the court in batches since filing the complaint. When he attempted earlier to amend the complaint to add four additional, but unrelated claims and the numerous affidavits to the case, the court denied the motion. The court will, however, consider all of Muhammad's submissions as part of his response to the defendants' motions and finds all the motions to be ripe for disposition.

         Because Muhammad's complaint sets out four distinct claims, the court will separately address them. Upon review of the record, the court finds that the defendants' motions must be granted as to all claims except the allegation of retaliatory suicide watch, and that Muhammad's motion for summary judgment must be denied.


         A. Standards of Review

          A motion to dismiss tests the legal sufficiency of a complaint. See, e.g.. Bell Atl. Corp. v. Twombly, 553 U.S. 544, 553-63 (2007). "[T]he complaint must be dismissed if it does not allege enough facts to state a claim to relief that is plausible on its face." Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (internal quotation marks and citation omitted). In conducting its review, a court must view the facts in the light most favorable to the plaintiff, but "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Id. (internal quotation marks and citation omitted). "[L]egal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement fail to constitute well-pled facts" however, and thus, need not be taken as true. Nemet Chevrolet, Ltd. v., Inc., 591 F.3d 250, 255 (4th Cir. 2009).

         An award of summary judgment is appropriate "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). For a party's evidence to raise a genuine issue of material fact sufficient to avoid summary judgment, it must be "such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In making this determination, "the court is required to view the facts and draw reasonable inferences in a light most favorable to the nonmoving party." Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994).

         B. Claim 1: Sexual Assaults

         1. Muhammad's Allegations

          On November 3, 2015, defendants Belcher and Brown escorted Muhammad to the medical unit after he complained of bloody stools. In the triage room, Muhammad saw "KY lubricant jelly" on the counter and told defendant Deel that he did not want or consent to a prostate examination. (Compl. ¶ 34, ECF No. 1.) Deel said, "I'll let Dr. Smith address that since he is the lead primary care physician." (Id.)

         Dr. Smith told Muhammad, "I overheard your conversation[. I] must get to the root of why you['re] having bloody stools. You do want to find out what's causing your serious medical condition right. If [I] don't do anything and it get[s] wors[e], or if you don't allow this to take place today[, ] there's no need in writing medical at all again whining and crying about the bloody stools." (Id.)

         Muhammad said, "[Y]ou read my childhood history and you already [know] that I was sexually assaulted forcible sodomy [by relatives]. ..." Id. "Why don't you just refer me to a gastroenterologist[?] ... I am not, will not be a willing participant in this sexual assault. . . ." (Id.) Muhammad said that "if [the doctor] was going to sexually assault [him] by penetrating [his] anallingus with lubricated gloved finger(s) it would be done on his own accord." (Pl.'s Aff. 1, ECF No. 7-8.) He reminded the doctor that in October 2015, his "urine sample PSA level. . . [had] already proved that [he didn't] have an enlarged prostate." (Id.) Dr. Smith replied, "It was normal but that does not mean it's not swollen or enflamed." (Id.) Dr. Smith then had the officers cuff Muhammad's hands to the front, pulled down his boxers, bent Muhammad over, "massaged both buttocks, repeatedly telling [him] to loosen up [his] buttocks, " and "forcibly sodomized for up to two minutes and thirty seconds." (Compl. ¶ 34, ECF No. 1.) When done, Dr. Smith said, "Well you don't have an enlarged prostate or hem[o]rrhodal flare up, nor any rectal bleeding." (Id.)

         On November 19, defendants Martin and Freeman escorted Muhammad to medical for an "emergency visit" at Dr. Smith's order. (Id.) When Muhammad saw KY jelly in the triage room, he demanded to be returned to his cell and said, "I will not be subjected to sexual assault a second time." (Id.) Dr. Smith said, "Nobody sexually assaulted [you] ¶ 11/3/15. It was a medically verbally consented procedure by you." (Id.) Muhammad retorted that he had not consented to the procedure and did not want a second rectal exam. Dr. Smith said, "If I do do it what are you going to do about it[?] [No one] will believe you. Nobody likes you. You are just a means to a paycheck." (Id.) Muhammad said that he would not "voluntarily participate in . . . being sexually assaulted." (Id.) The doctor had Muhammad cuffed to the front, "yanked" down his pants, bent him over the table, and "massaged [his] buttocks, stating[, "L]oosen them cheeks up. [Y]ou['re] too tense. It'll be a lot easier." (Id.) Muhammad felt the doctor's fingers "probing and digging as if searching for gold" for more than two minutes. (Id.) Dr. Smith stated, "Well again I find no prostate enlargement or hem[o]rrhodal fiareup and no rectal bleeding." (Id.)

         Dr. Smith then ordered that Muhammad be placed in a medical observation cell until he had a bowel movement, saying "We all believe you['re] manipulating your fecal matter putting blood in it." (Pl.'s Aff, at 1, ECF No. 7-3.) The doctor and other staff members checked Muhammad to ensure that he had not been "intentionally cutting [him] self biting the insides of mouth and so forth" to draw blood to place in his stool; they found no such self-inflicted injuries. (Pl.'s Aff., at 1, ECF No. 7-9.) Five hours later, Muhammad had a bowel movement.

         2. Defendants' Exhaustion Defense

         Dr. Smith asserts that he is entitled to summary judgment and the claims against him should be dismissed because Muhammad failed to exhaust administrative remedies properly before filing this civil action about the November 2015 rectal exams. After review of the record, the court agrees.

         The Prison Litigation Reform Act ("PLRA"), among other things, provides in 42 U.S.C. § 1997e(a) that a prisoner cannot bring a civil action concerning prison conditions until he has first exhausted available administrative remedies. This exhaustion requirement is "mandatory." Ross v. Blake, __U.S.__, 136 S.Ct. 1850, 1856 (2016). It "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). To comply with § 1997e(a), an inmate must follow each step of the established grievance procedure that the facility provides to prisoners and meet all deadlines within that procedure before filing his § 1983 action. See Woodford v. Ngo, 548 U.S. 81, 90-94 (2006) (finding inmate's untimely grievance was not "proper exhaustion" of available administrative remedies under § 1997e(a)).

         The defendants bear the burden of proving the affirmative defense that Muhammad failed to exhaust available administrative remedies regarding his claims before filing suit. Jones v. Bock, 549 U.S. 199, 212 (2007). Once they have done so, Muhammad may yet escape summary judgment under § 1997e(a) if he states facts showing that the remedies under the established grievance procedure were not "available" to him. Ross, 136 S.Ct. at 1859 (noting that circumstances making prison grievance procedures unavailable "will not often arise"). Generally, "an administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it." Moore v. Bennette, 517 F.3d717, 725 (4th Cir. 2008).

         Operating Procedure ("OP") 866.1 is the established administrative remedies procedure for inmates in VDOC facilities and, thus, it is the procedure they must follow to comply with § 1997e(a). (See Messer Decl. Ex. B, ECF No. 42-3.) Under OP 866.1, an inmate with a grievance about some event or issue must first make a good faith effort to resolve bis concerns informally. He must normally document this informal resolution effort by completing an informal complaint form and submitting it to prison staff, who will log his submission on the computer and issue him a receipt. Prison staff will then provide the inmate with a written response on the bottom of the informal complaint form and return it to him within fifteen days. The inmate can then initiate the next step under OP 866.1-a regular grievance, with the informal complaint attached.

         A regular grievance must be filed within 30 days of the occurrence about which it complains. Only one issue may be addressed per grievance. If a regular grievance is properly and timely filed, the warden or his designee will investigate and send the inmate a Level I response. If the responding official determines the grievance to be unfounded, for full exhaustion, the inmate must appeal that holding to Level II, the regional administrator, and in some cases, to Level III.

         In Claim 1, Muhammad contends that Dr. Smith "used excessive force against [him] by sexually assaulting him (sodomy) and being deliberately indifferent to [his] safety and serious medical needs, and violating [his] due process rights/common law, by his illegally body searching and seizing me" without consent. (Compl. ¶ 36.) Under the regular grievance procedures in OP 866.1, Muhammad had until December 4, 2016, to file a timely regular grievance alleging that Dr. Smith had violated his rights on November 3 by forcing him to undergo a rectal exam. He had until December 20 to file a regular grievance alleging Dr. Smith's violations of his rights on November 19. The defendants' evidence is that Muhammad did not file any regular grievances about the rectal examinations by these deadlines, and he offers no evidence in dispute. Because he did not follow the procedures or the timelines of OP 866.1, Muhammad did not properly exhaust administrative remedies about his complaints against Dr. Smith in Claim 1.

         Muhammad's submissions do not present facts demonstrating that the regular grievance procedure was unavailable to him during November and December 2015. In fact, on November 16, 2015, Muhammad filed an informal complaint about Dr. Smith's other medical decisions regarding his complaints of blood in his stools. Muhammad then filed a regular grievance on these issues on November 30, #ROSP-15-REG-00492, which was deemed unfounded and unsuccessfully appealed. (See Messer Decl. Ex. A, at 5-8, ECF No. 42-2.) None of these filings refer to the rectal exams on November 3 and 19, 2015.

         Muhammad contends that he properly exhausted his claims about the rectal exams under a Prison Rape Elimination Act ("PREA") exception to the normal regular grievance deadline. PREA is a federal statute enacted to establish a zero-tolerance policy for prison rape, to develop national standards for punishing those who rape prisoners, and to increase accountability for prison officials to report and prevent prison rape. 42 U.S.C. §§ 15602-15609. In response to the federal statute, the VDOC adopted OP 38.3 defining types of sexual abuse that inmates and staff may report using separate, protective procedures, including a PREA hotline. ("See King Aff. Ex. A, ECF No. 42-5.) One of these protective procedures is that inmates have no deadline to submit a regular grievance about allegations of sexual abuse. OP 38.3(IV)(E)(1)(g); OP 866.1(VI)(A)(1)(c) ("There is no time limit on when an offender may submit a grievance regarding an allegation of sexual abuse.").

         Inmates cannot dodge the regular grievance deadline and benefit from the PREA exception merely by using the words sexual abuse or assault to describe any unwanted contact with a staff member or contractor, however. Under the VDOC's PREA procedures, sexual abuse occurs when, without the inmate's consent, there is "[p]enetration of the anal or genital opening, however slight, by a hand, finger ... that is unrelated to official duties or where the staff member [or] contractor . . . has the intent to abuse, arouse, or gratify sexual desire. . . ." OP 38.3(111). The definition of sexual abuse in the PREA procedure expressly excludes "incidental touching during security searches, medical personnel engaged in evidence gathering or legitimate medical treatment, or to health care personnel performing body cavity searches in order to maintain security and safety within a facility." Id.

         The parties agree that Muhammad filed a PREA regular grievance on February 24, 2016, #ROSP-16-REG-0072, complaining that he was subjected to aggravated sexual battery, sexual assault, forcible sodomy, carnal knowledge" by Dr. Smith on November 3 and 19, 2015. (See Compl. Ex., at 3, ECF No. 1-1.) The Level I response states: "Investigation: Per ROSP Institutional Investigator Fannin, this [grievance] was deemed Non-PREA. Investigator Fannin determined this to be a medical procedure. Per ROSP Medical department, you consented to two different examinations. There is no evidence to support your allegations." Id. at 2. The Level II response upheld the ruling that #ROSP-16-REG-00072 involved a Non-PREA issue and was unfounded.

         Muhammad asserts that this PREA regular grievance and his appeals therefrom fully satisfy the exhaustion requirement in § 1997e(a) for his claims against Dr. Smith. The court cannot agree. The February 24, 2016 regular grievance was not filed within the 30-day window for regular grievances about the incidents of which he complains. Moreover, taking Muhammad's allegations in the light most favorable to him, he does not present evidence that Dr. Smith conducted the two rectal exams with any "intent to abuse, arouse, or gratify sexual desire" as required for his actions to meet the PREA procedure's definition of sexual abuse. OP 38.3(111). Muhammad alleges that the doctor had no legitimate reason to conduct the rectal exams because a recent PSA test was normal and Muhammad did not consent to the rectal exams. He also alleges that the doctor knew the exams would cause Muhammad to suffer an adverse emotional response because he had been sexually abused in the past. Even taken as true, these allegations cannot support a reasonable inference that the rectal exams were not legitimate medical procedures or that Dr. Smith performed them with any intentions of becoming sexually aroused or gratifying sexual desires.

         On the contrary, Dr. Smith's conduct on November 3 and 19, 2015, as alleged in Muhammad's submissions, clearly falls outside the definition of sexual abuse conduct to which the PREA deadline exception applies. Dr. Smith performed the rectal exams on these dates in the course of his "official duties" as Muhammad's attending physician, with the stated intention to rule out an enlarged prostate, rectal bleeding, and/or self-injury and feces manipulation as potential explanations for the blood Muhammad was reportedly observing in his stools. Thus, Muhammad fails to present any material fact in dispute showing that Dr. Smith's actions constituted sexual abuse in any sense of that term under PREA exception.

         Based on the foregoing, the court concludes that Dr. Smith is entitled to summary judgment because Muhammad did not properly exhaust available administrative remedies as to the only claims against this defendant. Muhammad did not file a regular grievance within the 30-day deadline under OP 866.1 as to any of his claims concerning the November rectal exams, and his allegations in the February 24, 2016 PREA grievance did not qualify for the PREA exception to that deadline.[2] Thus, his claims that these exams constituted sexual assault, excessive force, an illegal search in violation of the Fourth Amendment, or a deprivation of his right to refuse treatment in violation of the Due Process Clause ...

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