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Rivera v. Mathena

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

August 14, 2017

DENIS A. RIVERA, Plaintiff,
RANDALL C. MATHENA, et al., Defendants.

          Denis A. Rivera, Pro Se Plaintiff;

          Mary 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, [1] Mullins, Christopher Deel, Clinton Deel, and Ramey.


          James P. Jones United States District Judge

         Denis 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 granted.


         Rivera has been assigned Security Level S, the highest security classification in the Virginia Department of Corrections (“VDOC”).[2] 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).

         Segregation 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.

         Documents 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 No. 46-1.

         Staff 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.

         Rivera 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.

         In July 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.[3] 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 other.

         Rivera 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.

         Rivera 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.

         Rivera 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 week.

         Defendants 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.[4] 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.

         Rivera 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.


         A court 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.”[5] 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).

         A. No Hazardous Conditions Claim.

         The 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).

         To 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 ...

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