United States District Court, W.D. Virginia, Roanoke Division
E. Conrad United States District Judge
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.
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.
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
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.
Standards of Review
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. Consumeraffairs.com, Inc., 591 F.3d
250, 255 (4th Cir. 2009).
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).
Claim 1: Sexual Assaults
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
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."
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
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."
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.
Defendants' Exhaustion Defense
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.
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)).
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).
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.
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.
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.
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.
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
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
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.
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.
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.
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. 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 ...