United States District Court, W.D. Virginia, Roanoke Division
DENIS A. RIVERA, Plaintiff,
RANDALL C. MATHENA, et al., Defendants.
A. Rivera, Pro Se Plaintiff;
Grace Miller and Richard Carson Vorhis, Office of the
Attorney General of Virginia, Richmond, Virginia, for
Defendants Mathena, Barksdale, Duncan, Clarke, Elam, Parr,
Stacey Day, Messer, Gilbert, Turner, Stephens, Williams,
Dockery,  Mullins, Christopher Deel, Clinton
Deel, and Ramey.
OPINION AND ORDER
P. Jones United States District Judge
A. Rivera, a Virginia inmate proceeding pro se, filed this
civil rights action under 42 U.S.C. § 1983, alleging
that prison officials denied him showers and outside
recreation on several occasions during the summer of 2014 and
the spring of 2016. While I will grant Rivera's motions
seeking to supplement the record on his original claims with
additional exhibits and argument, I must deny his pending
motions for interlocutory injunctive relief as without merit.
After review of the record as supplemented, I conclude that
the defendants' Motions for Summary Judgment must be
has been assigned Security Level S, the highest security
classification in the Virginia Department of Corrections
(“VDOC”). Because of his security level, at all
times relevant to his Complaint, Rivera has been incarcerated
in a special housing (or segregation) unit at Red Onion State
Prison (“Red Onion”). The policy governing
conditions in a segregation unit is VDOC Operating Procedure
(“OP”) 861.3. Barksdale Aff. ¶ 4 and
Enclosure A, ECF No. 22-1. Inmates in this status are
permitted limited out-of-cell activity. Whenever an inmate
leaves his Special Housing Unit cell for any reason, he
undergoes a strip search, is placed in restraints, is frisk
searched outside his cell, and is escorted by correctional
officers. Id. at ¶ 861.3(V)(D). When an inmate
is initially transferred to a Level S housing unit, staff
will orient him about the available services and how to
access them. OP 861.3(V)(E)(1).
inmates, like inmates in the general prison population,
regularly receive clean bedding and clothing and may possess
personal hygiene items. See gen. Id. at ¶
861.3(V)(E)(8), (9). They are issued one towel and one wash
cloth and may sponge bathe in their cells. Id. at OP
861.3(V)(E)(8)(a), (13)(b). By policy, segregation inmates
are offered the opportunity to shower and shave no less than
three times per week, unless security or safety
considerations require otherwise. Id. at OP
861.3(V)(E)(13)(b). Segregation inmates are allowed a minimum
of one hour of out-of-cell exercise on five separate days
each week in a supervised area, including three days of
outside exercise, unless security or safety considerations
dictate otherwise. Id. at Barksdale Aff.
¶¶ 4, 8. During an institutional lockdown, all
outside recreation and showers may be suspended for
segregation units. Id. at ¶ 4.
in the record, including two video clips that Rivera has
asked me to consider, indicate the procedure that segregation
inmates must follow to accept a shower or recreation session.
Between about 6:15 and 7:15 every morning, a supervisory
officer will announce that the shower and/or recreation list
is being taken. Resp. to Mot. Compel, 16, ECF No. 46-3. The
supervisor then goes to each cell in the unit and each inmate
must verbally respond whether or not he wants the offered
shower and/or outside recreation that day. Id., at
27. If the inmate fails to do so, because he is asleep or
responds in some nonverbal manner, the supervisor marks on
the list that the inmate has refused the offered activity.
See Id. at 47, ECF No. 46-2. An inmate may also be
marked as refusing the activity for noncompliance with other
procedures, such as his cell being out of compliance, asking
to postpone the activity, or not following directions during
the strip search. See, e.g., Id. at 34-35, 74, ECF
document each segregation inmate's daily activities, from
meals to mental health assessments, on the special housing
individual log sheet located on his cell door. Barksdale Aff.
¶ 5, ECF No. 22-1. This log indicates if the inmate
refused, or was provided, a shower or outside recreation.
Id. at ¶ 6.
has been continuously assigned to segregation since April
2014 and has been repeatedly advised of the need to comply
strictly with the shower and recreation procedure. For
example, he filed a grievance complaining that on April 5, an
officer did not take him to the shower. The written, Level I
response to his grievance stated:
Offenders who fail to follow/comply with procedure and
practice or become disruptive during recreation/shower times
are refusing to accept the offered recreation/shower.
You are housed as a security level “S” offender .
. . . Due diligence will be placed on control of disruptive
or abusive behavior. Dates and times that you do not accept
recreation/showers either by your own volition or
non-compliance are decisions and choices that you make. There
is no evidence of procedure violation.
Resp. to Mot. Compel 2, ECF No. 46-3. Copies of other
administrative remedy forms in the record include similar
responses from officials, reminding Rivera that he will be
marked as refusing a shower or outside recreation if he fails
to verbally accept the offered activity at the time the list
for the day is being created or if he fails to comply with
other procedures. See, e.g., Counter Aff. Exs., at
26, 28, 38, ECF No. 52-1.
2016, Rivera filed this § 1983 Complaint, alleging that
various supervisory officials and corrections officers had
denied him outside recreation and/or a shower on numerous
occasions “for no reason.” Compl. ¶ 25, ECF
No. 1. Specifically, he states that defendants Messer,
Brewer, Day, Stephens, Williams, Dockery, Christopher Deel,
Clinton Deel, and Ramey “denied/refused to provide
[him] with outside recreation (i.e. fresh air and exercise)
and shower(s)/sanitation” as required by OP 861.3,
id. at ¶ 21, on the following dates in 2014:
June 27, 28, and 29; July 1, 3, 4, 5, 6, 8, 10, 11, 12, 13,
15, 17, 18, 19, 20, 22, 24, 25, 26, 27, 29, and 31; and
August 2, 3, 5, 7, 8, 9, 10. On some of these days, he
complains that the officer(s) did not take him to shower or
to outside recreation, while on other days, he complains only
that the officer(s) did not take him to one activity or the
also complains that in 2016, Messer, for no reason denied him
a shower on March 19, May 1, 13, 15, and 18, and June 24;
denied him outside recreation on March 20 and 23, April 1 and
3, and June 25; and denied him both a shower and outside
recreation on March 24 and 29, and on June 26 and 29.
Finally, Rivera complains that in 2016, Mullins denied him
outside recreation and a shower on April 12; defendant Ramey
denied him a shower on April 16; and Christopher Deel denied
him a shower on April 29.
alleges that “for years [he] has had an ongoing Medical
problem with skin infection bacteria that requires him to
take a shower so that it goes away and not spread.”
Id. at ¶ 39. He states that he “has to
appl[y] the medication prescribed (i.e. Selenium Sulfide) by
the doctor for washing in showers” on Tuesdays,
Thursdays, and Saturdays. Id. at ¶ 33; Compl.
Ex. 4, at 29, ECF No. 1-1. Rivera alleges that as a result of
being denied outside recreation and showers on multiple
occasions in the summer of 2014 and the spring of 2016, he
suffered the “re-appearance of fungal infection (i.e.
skin infection/bacteria), ” emotional and mental
deterioration, depression, lack of energy and sleep, loss of
appetite, and headaches. Compl. ¶ 43. He believes that
washing himself in his cell instead of showering may cause
the infection to spread.
contends that the officers who denied him outside recreation
and showers violated his rights under the Eighth and
Fourteenth Amendments. He also asserts that the defendant
officials who serve in supervisory or administrative
positions violated his rights by failing to enforce the VDOC
policy requirement for segregation inmates to receive three
showers and three hours of outside recreation per week and by
refusing to act on his grievances and appeals about being
repeatedly denied showers and outside recreation. As relief,
Rivera seeks monetary damages and preliminary and permanent
injunctive relief ordering that he receive the number of
showers and recreation periods required by VDOC policy every
Mathena, Barksdale, Duncan, Clarke, Elam, Parr, Lt. S. Day,
Messer, Gilbert, Turner, Stephens, Mullins, Christopher Deel,
Clinton Deel, Ramey, Williams, and Dockery have filed Motions
for Summary Judgment. The defendants do not dispute that Rivera
did not receive a shower and/or outside recreation on the
dates that he asserts. Rather, they contend that he was
offered showers and recreation regularly as required by
policy. Their evidence is that “[o]n the dates that
Rivera did not receive recreation or a shower, he was not
scheduled for the activity, the institution was on lockdown
or he refused to attend on his own free will.” Gilbert
Aff. ¶ 5, ECF No. 36-2.
has responded to these motions, and I find them ripe for
disposition. For reasons discussed herein, I conclude that
the defendants are entitled to summary judgment. I also
conclude that Rivera's separate motions seeking
preliminary injunctive relief based on events that occurred
after the period at issue in the Complaint must be denied.
should grant summary judgment “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). “As to materiality . . . [o]nly
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute about a material
fact is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Id. I must draw all reasonable
inferences from the facts in favor of Rivera, the nonmoving
party. Williams, 372 F.3d at 667. Section 1983
permits an aggrieved party to file a civil action against a
person for actions taken under color of state law that
violated his constitutional rights. See Cooper v.
Sheehan, 735 F.3d 153, 158 (4th Cir. 2013).
Hazardous Conditions Claim.
Eighth Amendment, which applies to the states under the Due
Process Clause of the Fourteenth Amendment, “protects
inmates from inhumane treatment and conditions while
imprisoned.” Williams v. Benjamin, 77 F.3d
756, 761 (4th Cir. 1996). “[T]he Constitution does not
mandate comfortable prisons, ” however, and conditions
that are “restrictive and even harsh . . . are part of
the penalty that criminal offenders pay for their offenses
against society.” Rhodes v. Chapman, 452 U.S.
337, 347-49 (1981). It is well established that “only
the unnecessary and wanton infliction of pain implicates the
Eighth Amendment.” Wilson v. Seiter, 501 U.S.
294, 297 (1991).
sustain an unconstitutional conditions claim, a prisoner must
show that: (1) objectively, the deprivation was sufficiently
serious, in that the challenged, official acts caused denial
of “the minimal civilized measure of life's
necessities”; and (2) subjectively, the defendant
prison officials acted with “deliberate indifference to
inmate health or safety.” Farmer v. Brennan,
511 U.S. 825, 834 (1994). The prisoner must show
“significant physical or emotional harm, or a grave
risk of such harm, ” resulting from the challenged
conditions. Shakka v. Smith, 71 F.3d 162, 166 (4th
Cir. 1995). Rivera ...