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Whitten v. Fleming

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

September 11, 2017

LESLIE FLEMING, et al., Defendants.


          Elizabeth K. Dillon United States District Judge

         Antwon Whitten, a Virginia inmate proceeding pro se, filed this action under the Civil Rights Act, 42 U.S.C. § 1983. In his amended complaint, Whitten alleges that the defendants violated his constitutional rights related to a disciplinary conviction. Having reviewed the record, the court concludes that the defendants' motion to dismiss must be granted.

         I. BACKGROUND

         On the morning of October 31, 2015, Whitten was in a fight with his cellmate inside Cell A-136 at Wallens Ridge State Prison.[1] Whitten claims that while he slept, the cellmate, C. Brown, touched Whitten's buttocks. Whitten admits that he then “assaulted [Brown] with a weapon.” (Amend. Compl. ¶ 26, Dkt. No. 15.) As the inmates were fighting, Officer Lawson arrived and sprayed mace into the cell. Whitten alleges that other officers arrived, pulled Brown from the cell, and ordered Whitten to turn on his stomach, which he did. According to Whitten, Officer Gunter then entered the cell with a canine and “allowed the dog to maul [Whitten].” (Id. at ¶ 27.) Whitten suffered numerous dog bites to his underarm, back, and the back of his head that required more than 50 sutures. The prison medical staff sent both inmates to a local hospital for treatment of their injuries.

         Later that day, Whitten was served with a disciplinary offense report (DOR), charging him with offense code 100: killing or attempting to kill any person. The DOR gave the following description of the offense: “October 31, 2015 at 10:13 am I K-9 officer Gunter responded to a 1018 in cell fight call via radio in A-1 pod. When I arrived to A-136 that housed offender[s] [Whitten and Brown] I observed offender A. Whitten on top of C. Brown on the floor stabbing C. Brown in the face area.” (Compl. Ex., at 18, Dkt. No. 1-1.)

         Whitten received written notice of the charge and filed written requests for witness statements and documentary evidence in preparation for his disciplinary hearing. Hearing Officer C. W. Franks conducted the proceeding on November 13, 2015, with Whitten and Gunter, the reporting officer, present. Whitten denied that he had attempted to kill anyone. He stated that by the time Gunter arrived, the fight was almost over, and Brown was biting Whitten's fingers. He denied that Gunter had seen him stabbing Brown at that time as stated in the DOR. Whitten also claimed that Brown had received only one wound and it was not life threatening. Franks withheld ruling on Whitten's written request for the pod security camera footage, saying that he “would have to be convinced during the course of the hearing to look at the security camera” footage. (Id., at 13.)

         Officer Lawson's witness statement said: “I . . . was the first officer on scene. When I seen them they was on the ground fighting. There was an excessive amount of blood coming from [Brown] and [Whitten]. The injuries I seen was consistent with a weapon being utilized.” (Id., at 28 and 30.) Whitten had also requested a statement from Officer Cooke, because he believed Cooke could say which inmate was on top when the cell door was opened. (Id., at 31.) Cooke's statement said: “When I arrived at the cell you [Whitten] were on top of Offender Brown.” (Id., at 32.)

         During the hearing, Gunter testified as follows. When he arrived in A1 pod, he saw Cooke and Lawson standing in front of cell A136, with the tray slot open. He and his canine, Bert, went to the cell, where Gunter saw Whitten on top of Brown “with Whitten making stabbing motions toward Brown's face.” (Id., at 14.) Gunter radioed a report that the fight involved a weapon, asked the control booth officer to open the cell door, and then entered the cell and “engaged” Bert on Whitten. (Id.) The inmates separated; Brown rolled under the bunk, and Whitten rolled to the opposite side of the cell. Another officer called for Brown to crawl out the door, but Brown did not respond. He turned toward Gunter, who then saw the wounds to Brown's face. While another officer assisted Brown out of the cell, Gunter ordered Bert off of Whitten.

         In response to Gunter's testimony, Whitten repeated his claim that when the cell door opened, he was on his back with Brown biting his fingers. He also claimed that the officers had removed Brown from the cell before Gunter and Bert entered and that Gunter had “allowed the dog to bit[e him] ‘all over the place.'” (Id., at 14.) Whitten asked Franks to review the pod video to prove this sequence of events.

         Franks stated that the actions relative to the charge had occurred inside the cell. He also stated that from his own observation of Brown's face after the incident, it was clear that Brown had sustained more than one wound and that his wounds could quickly have become life threatening. Franks also referred to Gunter's account of seeing, through the cell window, Whitten stabbing Brown in the face. Franks said he “would be hard pressed to see how that action could not be perceived as intent to kill.” (Id., at 15.) Based on Gunter's testimony, Franks refused to view the pod video.

         Whitten asked Gunter why he had allowed Bert to bite him numerous times. Whitten claimed that the location of the dog bites on his back, legs, and head proved that he had not resisted. Gunter said that the bites were consistent with his account that Whitten was on top of Brown when Gunter and Bert entered the cell. Gunter said Bert had kept Whitten under control until Brown was safely out of the cell and Whitten had complied with the officers' orders.

         Gunter stated that he had seen a weapon resembling a piece of glass about four inches long and two inches wide. According to the written summary of the hearing evidence, Gunter testified that Whitten “had used both hands stabbing toward Brown's facial area.” (Id., at 15.) Whitten claims that Gunter actually testified to seeing Whitten “on top of Brown punching him with (1) hand and stabbing him with the other.” (Id., at 9.)

         Based on the hearing evidence, Franks found Whitten guilty of offense code 100, attempting to kill any person. As a penalty, Franks ordered Whitten to pay restitution to the state of $12, 536.00, the total cost of treating the two inmates' injuries.

         Whitten appealed the conviction and restitution. In reviewing the appeal, Warden Fleming concluded that the finding of guilt was adequately supported by Franks' description of Brown's wounds as substantial, and by Gunter's testimony about seeing a weapon and seeing Whitten on top of Brown “making stabbing motions toward Brown's face using a weapon.” (Id., at 16.) Fleming also found no due process violation and upheld the ...

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