Argued: September 15, 2017
from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, Chief
District Judge. (2:12-cv-00209-RBS-TEM)
S. Mordecai, Joshua K. Day, UNIVERSITY OF VIRGINIA SCHOOL OF
LAW, Charlottesville, Virginia, for Appellant.
Stephen Cox, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellees.
Stephen L. Braga, Appellate Litigation Clinic, UNIVERSITY OF
VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for
R. Herring, Attorney General, Stuart A. Raphael, Solicitor
General, Matthew R. McGuire, Assistant Solicitor General,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellees.
GREGORY, Chief Judge, WYNN, and DIAZ, Circuit Judges.
GREGORY, Chief Judge:
Thompson, an inmate of the Virginia Department of Corrections
("VDOC"), brings claims under 42 U.S.C. §
1983, alleging violations of his rights under the First
Amendment, Eighth Amendment, and the Fourteenth Amendment by
several current and former VDOC officials. He also alleges
violations of his rights under the Virginia Constitution by
the Commonwealth of Virginia, the VDOC, and those same
officials. Claims primarily stem from alleged retaliation by
prison officials against Mr. Thompson for filing grievances
and lawsuits, most notably by giving him a "rough
ride" in a prison van. The district court below granted
summary judgment in favor of the defendants on all claims,
relying in part on the doctrine of qualified immunity. We now
affirm in part, reverse in part, and remand for further
relevant times, Appellant Mr. Paul C. Thompson was an inmate at
Deep Meadow Correctional Center ("DMCC"), which is
run by the VDOC. The case largely centers on whether two
correctional officers, Officer Cooper and Officer Diming,
gave Mr. Thompson a so-called "rough ride" while
transporting him in a van and whether other corrections
officials responded inappropriately to the incident.
around 7 a.m. on April 8, 2010, DMCC began transporting Mr.
Thompson to attend a 9:30 a.m. proceeding at the Mecklenburg
Circuit Court. Before departure, Officers Diming and Cooper
secured Mr. Thompson in handcuffs, leg irons, a belly chain,
and a black box.
and Cooper then placed Mr. Thompson in the second row of a
van, which was equipped with seatbelts. According to Mr.
Thompson, neither officer secured Mr. Thompson's
seatbelt, even though his restraints prevented him from doing
so himself. Mr. Thompson then specifically requested that his
seatbelt be secured, but both Cooper and Diming refused.
Cooper and Diming each averred that it was their usual
practice to fasten inmates' seatbelts and that they would
not refuse seatbelt requests. However, neither officer
recalled whether Mr. Thompson in fact had his seatbelt
fastened or even made such a request.
Mr. Thompson was in the van, Cooper took the wheel, with
Diming in the passenger seat. They drove without incident,
despite going on windy, sharply-curved roads, for about an
hour and a half. By Mr. Thompson's account, the van then
made a short stop at a convenience store and turned back
around in the direction of DMCC. According to Cooper and
Diming, they made no stops during the trip and began the
return trip after receiving a phone call from DMCC that the
court proceeding had been cancelled.
happened on the return trip is vigorously disputed. According
to Mr. Thompson, the officers intentionally drove the van in
a way that caused him to be thrown around the cabin, and they
took pleasure in doing so. Cooper reportedly drove
erratically, exceeding the speed limit and crossing the white
and yellow traffic lines. Because of Cooper's excessive
speed on the curved roads and the fact that Mr. Thompson was
not belted to his seat, Mr. Thompson was thrown around in the
van from one side to the other. The sudden stops and
accelerations also caused Mr. Thompson to be thrown forwards
and backwards. Meanwhile, Mr. Thompson's restraints
prevented him from protecting himself from slamming against
the walls of the van. As a result, Mr. Thompson's head
and upper body struck the steel mesh covering the windows,
causing bleeding and bruising on his forehead, hands, and
arms. Mr. Thompson repeatedly asked Cooper to slow down and
to drive carefully, informing both officers that he was
getting hurt. Mr. Thompson also specifically asked Diming to
intervene. However, Diming did not take any action, even
after Mr. Thompson had already sustained visible injuries.
response to Mr. Thompson's pleas, Cooper and Diming
reportedly laughed and taunted him. They said, "So you
like to write grievances and take people to court, we know
how to deal with inmates . . . who create problems."
J.A. 476. Since Mr. Thompson's first arrival at DMCC less
than six months earlier, he had filed at least 14 complaints,
primarily concerning access to the law library and to the
and Diming joked about how scared Mr. Thompson looked and
stated that they were going to make his stay at DMCC a
nightmare. Cooper eventually began driving normally again. At
some point, Diming called staff at DMCC, stating that Mr.
Thompson was banging his own head and being crazy.
and Diming, unsurprisingly, recounted an entirely different
version of events. By their telling, Cooper obeyed all
traffic laws. When they were twenty minutes away from DMCC,
Mr. Thompson started yelling, shouting profanities, and
banging his head on the metal mesh. Mr. Thompson then
threatened the officers with lawsuits, saying that he was
going to claim they beat him up. Diming called the lieutenant
on duty at DMCC, Lt. Thompson, and reported Mr.
Thompson reported that he heard Mr. Thompson screaming and
yelling on speaker-phone during the call. Another officer, K.
James, stated that he heard, because the call was on
speaker-phone, Mr. Thompson yelling, "I am going to tell
them you beat me up, " as well as thuds consistent with
a head striking a window. J.A. 230.
Thompson's physical injuries were documented after the
ride. Photos were taken, and Lt. Thompson observed a cut that
appeared to be a half to three-quarters of an inch long on
Mr. Thompson's forehead. An injury report prepared by
Cooper and Diming indicated that Mr. Thompson's gash was
cleaned and dressed, with no follow-up treatment prescribed.
Thompson was referred to the prison psychologist for a mental
health evaluation. The psychologist, D. Lipscomb, observed
Mr. Thompson crying as he recounted the morning's events.
Mr. Thompson reportedly expressed concern for his safety,
said that he was "scared now[, ]" because
"they cause[d] [him] to bang [his] head, " and that
the officers told him, "This will teach you to write
grievances . . . [and] file litigation." J.A. 451.
According to the mental health report, Mr. Thompson also
stated, "Don't know if I can do this. Shouldn't
have to go through this shit. Now fucking crying like a
freaking baby." J.A. 451.
Thompson issued a disciplinary charge against Mr. Thompson
for "lying and giving false information to an employee,
" specifically for claiming that staff had assaulted him
when his injuries were self-inflicted. J.A. 74, 212-214, 513.
This resulted in pre-hearing detention, a disciplinary
hearing before Hearing Officer Blackwell, and seven days'
isolation time (credited by pre-hearing detention).
addition to the "rough ride, " Mr. Thompson also
generally alleges that VDOC officials, including Grievance
Coordinator Seay, Assistant Warden Jennings, Ombudsman White,
and Major Lewis have denied him access to grievance
procedures and to the law library and have rejected
grievances without sufficient explanation or after excessive
2012, Mr. Thompson, acting pro se, filed a 42 U.S.C.
§ 1983 action in the Eastern District of Virginia,
alleging violations of the First Amendment, Eighth Amendment,
Fourteenth Amendment, and the Virginia Constitution. The suit
named the Commonwealth of Virginia, the Virginia Department
of Corrections, Warden Baskerville, Assistant Warden
Jennings, Ombudsman White, Major Lewis, Captain Dolan, Lt.
Thompson, Grievance Coordinator Seay, Operations Officer
Ware, Hearing Officer Blackwell, and Officers Cooper and
clarity, we adopt Mr. Thompson's summary of his claims,
as referenced by the district court:
Claim One. Defendants named are Baskerville,
Jennings, Ware, Lewis, Dolan, Thompson, Seay, Blackwell,
White, Cooper and Diming. This is a First Amendment
retaliation claim. This claim encompasses more than the
transport incident on April 8, 2010, it involves
Defendants' actions/inactions prior to and after the
Claim Two. Defendants named are Jennings, Dolan,
Thompson, Cooper and Diming. This is an Eighth Amendment
cruel and unusual punishment claim, that relates directly to
the transport incident on April 8, 2010;
Claim Three. Defendants named are Jennings, Dolan,
Thompson, Cooper, Diming, Lewis, Seay and Blackwell. This is
a Fourteenth Amendment claim involving violations of due
process concerning the issuance of a false charge, the
hearing process, confinement in segregation, extended
confinement in segregation and conspiracy to cover up First
and Eighth Amendment violations;
Claim Four. Defendants named are Baskerville,
Jennings, Ware, Lewis, Dolan and White. This is a supervisory
responsibility direct involvement claim related to First,
Eighth and Fourteenth Amendment violations;
Claim Five. Defendants named are Commonwealth of
Virginia, VDOC, Baskerville, Jennings, Ware, Lewis, Dolan,
Thompson, Seay, Blackwell, White, Cooper and Diming. This is
an Article I, Section 12, Virginia Constitution violation
involving harassment and retaliation for Plaintiff exercising
his First Amendment right;
Claim Six. Defendants named are Commonwealth of
Virginia, VDOC, Jennings, Dolan, Thompson, Cooper, and
Diming. This is an Article I, Section 9, Virginia
Constitution violation related to the transport incident on
April 8, 2010; and
Claim Seven. Defendants named are Commonwealth of
Virginia, VDOC, Jennings, Seay, Blackwell, Dolan, Thompson,
Lewis, Cooper and Diming. This is an Article I, Section 11,
Virginia Constitution violation involving due process
violations concerning the issuance of a false charge, hearing
process, confinement in segregation, extended confinement in
segregation and conspiracy to cover up First and Eighth
Amendment violations violating the Fourteenth Amendment.
Thompson v. Dolan, Civ. A. No. 12-209, 2015 WL
13065640, at *1 (E.D. Va. Aug. 10, 2015). The district court
granted summary judgment on all seven claims in favor of all
court reviews a grant of summary judgment de novo.
Lee v. Town of Seaboard, 863 F.3d 323, 327 (4th Cir.
2017). We ask "whether any genuine issues of material
fact exist for the jury and if not, whether the district
court erred in applying the substantive law."
Id. In doing so, we "view the evidence in the
light most favorable to the nonmoving party."
Id. "To survive summary judgment, 'there
must be evidence on which the jury could reasonably find for
the [nonmovant].'" Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
reasons below, we affirm the grant of summary judgment as to
Claims Three and Four but reverse in part as to Claims One,
Two, Five, Six, and Seven. Because Claim Two's Eighth
Amendment claim goes directly to the transport incident and