United States District Court, E.D. Virginia, Alexandria Division
M. Brinkema United States District Judge
Jack Watson, a Virginia inmate proceeding pro se, has filed a
civil rights action, pursuant to 42 U.S.C. § 1983,
alleging that he was subjected to unconstitutional conditions
of confinement during his former detention at Lawrenceville
Correctional Center ("LVCC"). The matter is
before the Court on a Motion for Summary Judgment filed by
remaining defendants Warden Ed Wright, Unit Manager Neal
Graves, and Unit Manager R. E. Clarke. [Dkt. No.
30]Defendants submitted a memorandum of law
with supporting exhibits, and provided plaintiff with the
notice required by Local Rule 7(K) and Roseboro v.
Garrison. 528 F.2d 309 (4th Cir. 1975). [Dkt. No. 31]
After receiving an extension of time, Watson submitted his
Opposition to Motion for Summary Judgment [Dkt. No. 37],
defendants filed a reply [Dkt. No. 38], and plaintiff filed a
sur-reply. [Dkt. No. 39] Accordingly, this matter is ripe for
disposition. After careful consideration of these
submissions, defendants' Motion for Summary Judgment will
amended complaint, which is the operative complaint in the
lawsuit [Dkt. No. 15], Watson contends that lack of access to
toilet facilities during exercise periods at LVCC amounted to
an Eighth Amendment violation. He alleges that during his
incarceration at LVCC he was "forced to choose between
exercise (inside or outside) or staying in [his] cell
24/7/365, where toilet facilities are present."
Id. at Att. p. 3. According to plaintiff, during
inside pod exercise periods officers in the booth would not
let an inmate back into his cell to use the toilet
facilities, "no matter how much he beg[ged] and
plead[ed]...." Id. As for outdoor exercise
periods, plaintiff states that no "gate breaks"
were provided from Monday through Friday, and even when they
were made available plaintiff and other inmates often were
deprived of access to toilet facilities for up to two hours.
Id. at Att. p. 4. Plaintiff alleges that his
inability to relieve himself for these "long periods of
time" caused him to suffer "extreme and
excruciating pain, " and that the resulting necessity of
urinating in the showers made him feel "untold amounts
of humiliation, embarrassment, and emotional trauma."
Id. at Att. p. 5. Plaintiff suggests that the
situation could have been alleviated by the installation of
Port-a-Johns on the outside recreation yard, but defendants
refused to do so. Watson claims that as a result he and other
LVCC inmates were "forced to choose between sanitation
or exercise." Id. at Att. p. 15. As relief,
plaintiff seeks an award of compensatory and punitive
damages. Id. at Att. pp. 24-25.
have submitted exhibits which demonstrate the following
material facts. Inmates at LVCC are offered time in the
outdoor recreation yard twice a day, typically from
approximately 9:00 a.m. to 10:30 a.m. and again from
approximately 2:00 p.m. to 3:30 p.m. Decl. of Graves, Def.
Ex. A ¶ 5; Decl. of Wright, Def. Ex. B ¶ 4. During
these periods correctional officers patrol the perimeter
fencing of the yard and observe the inmates inside. Def. Ex.
A ¶ 7; Def. Ex. B ¶ 5. About 30 to 45 minutes after
a recreation period begins, an officer provides a "gate
break" during which inmates may leave the yard for any
reason, including use of a restroom; however, an inmate who
does so may not return to the yard during that session.
Additionally, an inmate who wishes to leave the yard at
another time may ask the officers patrolling the perimeter to
let him out, and the officers may or may not accommodate such
a request at their discretion. Def. Ex. A ¶ 8; Def, Ex.
B ¶ 8.
are no restrooms in the LVCC recreation yard. Port-a-Johns
would constitute a security threat because they would hinder
correctional officers' ability to observe the inmates.
Urination and defecation are not permitted in the yard, and
an inmate who does so generally is given a disciplinary
charge. Def. Ex. A ¶ 9; Def, Ex. B ¶ 6-7.
inmate also has the option of remaining in the day room of
his housing unit for recreation. Every hour, on the hour,
inmates in each housing unit receive a "door break"
during which all cells are unlocked for five minutes and
inmates are permitted free access to enter and leave their
cells. This provides an opportunity for inmates to use the
toilets. Def. Ex. A ¶ 13; Def, Ex. B ¶ 10. At all
other times an inmate may obtain access to his cell by
pushing an intercom button and requesting the Booth Officer
stationed in the housing unit's control room to open his
cell door remotely. Def. Ex. A ¶ 10; Def, Ex. B ¶
9-10. An inmate who does so must remain in his cell until the
next door break occurs. Def. Ex. A ¶ 14. Additionally,
for security reasons he must wait to be let into his cell
until a Floor Officer or a Sergeant can be present, which at
times can take up to 20 minutes. Def. Ex. A ¶ 15; Def,
Ex. B ¶ 11.
response to defendants' summary judgment motion,
plaintiff filed an Opposition to Motion for Summary Judgment
which he signed under penalty of perjury. [Dkt. No. 37 at p.
48] Plaintiff takes issue with many of defendant's
factual assertions by declaring them to be untrue and false,
and he supports his position by pointing to his statements in
the amended complaint. Id. at 1. It is settled that
the nonmoving party may not defeat a properly-supported
summary judgment motion by simply substituting the
"conclusory allegations of the complaint or answer with
conclusory allegations of an affidavit." Luian v.
Nat'l Wildlife Fed'n. 497 U.S. 871, 888 (1990).
This is true even where the nonmoving party in such a
situation is a pro se prisoner entitled to liberal
construction of his pleadings; a "declaration under
oath... is not enough to defeat a motion for summary
judgment. He has to provide a basis for his statement. To
hold otherwise would render motions for summary judgment a
nullity." Campbell-El v. Dist. of Columbia. 874
F.Supp. 403, 406 - 07 (D.C. 1994). Here, the factual
allegations in plaintiffs Opposition amount to nothing more
than a conclusory recapitulation of the amended complaint,
without additional supporting evidence. Thus, plaintiffs
pleading is insufficient to defeat defendants' summary
judgment motion. Doyle v. Sentry Ins.. 877 F.Supp.
1002, 1005 (E.D. Va. 1995) (Merhige, J.) (to defeat a motion
for summary judgment, a nonmoving party cannot rely on
"mere belief or conjecture, or the allegations or
denials contained in the pleadings.")
plaintiff in his sur-reply [Dkt. No. 39] asserts that much of
what defendants state in their summary judgment motion and
supporting affidavits is false, but his assertions are
unsupported by any evidence.
Standard of Review
judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(c). The moving party bears the
burden of proving that judgment on the pleadings is
appropriate. See Celotex Corp. v. Catrett. 477 U.S.
317, 323 (1986). Once a moving party has met its burden to
show that it is entitled to judgment as a matter of law, the
burden shifts to the non-moving party to point out the
specific facts which create disputed factual issues.
Anderson v. Liberty Lobby, Inc.. 477 U.S. 242, 248
(1986); Matsushita Electrical Industrial Co. v. Zenith
Radio Corp.. 475 U.S. 574, 587 (1986). In evaluating a
motion for summary judgment, a district court should consider
the evidence in the light most favorable to the non-moving
party and draw all reasonable inferences from those facts in
favor of that party. United States v. Diebold. Inc..
369 U.S. 654, 655 (1962). An issue of material fact is
genuine when "the evidence... create[s] [a] fair doubt;
wholly speculative assertions will not suffice."
Ross v. Communications Satellite Corp.. 759 F.2d
355, 364 (4th Cir. 1985).
argue that they are entitled to summary judgment on several
grounds, all of which are meritorious. The threshold and
dispositive consideration is that Watson admittedly failed to
exhaust his administrative remedies for his present claim.
Pursuant to the Prison Litigation Reform Act
("PLRA"), "[n]o action shall be brought with
respect to prison conditions under section 1983 of this
title, or any other federal law, by a prisoner confined in
any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted."
See 42 U.S.C. § 1997e(a); Woodford v. Ngo. 548
U.S. 81, 85 (2006) ("Exhaustion is no longer left to the
discretion of the district court, but is mandatory.").
As has been recognized previously in this district, "the
PLRA amendment made [it] clear that exhaustion is now
mandatory." Langford v. Couch. 50 F.Supp.2d
544, 548 (E.D. Va. 1999). A prisoner now must exhaust all
available administrative remedies, whether or not they meet
federal standards or are plain, speedy or effective,
Porter v. Nussle. 534 U.S. 516, 524 (2002), and even
if exhaustion would be futile because it would not provide
the relief the inmate seeks. Davis v. Stanford. 382
F.Supp.2d 814, 818 (E.D. Va.), affd, 127 Fed.App'x 680
(4th Cir. 2005).
PLRA requires "proper" exhaustion, which demands
"compliance with an agency's deadlines and other
critical procedural rules." Woodford. 548 U.S.
at 90-91, 93. Proper administrative exhaustion requires that
"a prisoner must submit inmate complaints and appeals in
the place, and at the time, the prison's administrative
rules require." Dale v. Lappin. 376 F.3d 652,
655 (7th Cir. 2004). The benefits of proper exhaustion are
realized only if the prison grievance system is given a
"fair opportunity to consider the grievance" which
will not occur "unless the grievant complies with the