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Wall v. Stevens

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

January 30, 2018

GARY WALL, Plaintiff,
N. STEVENS, et al., Defendants.


          Hon. Jackson L. Kiser, Senior United States District Judge.

         Gary Wall, a Virginia inmate proceeding pro se, commenced this civil rights action pursuant to 42 U.S.C. §§ 1983 and 1985. Plaintiff names numerous staff of the Red Onion State Prison ("Red Onion") as defendants. Plaintiff alleges that prison staff violated federal and state law by retaliating against him, imposing cruel and unusual punishment, not providing adequate process, negligently investigating Plaintiffs accusations, and being willfully and wantonly negligent. Defendants filed a motion for summary judgment, arguing, inter alia, the defense of qualified immunity. Plaintiff responded in opposition and filed a cross motion for summary judgment, making the matter ripe for disposition.[1] After reviewing the record, I find that disputes of material facts preclude summary judgment for Plaintiff and also preclude qualified immunity and summary judgment for the retaliation claims against defendants Vaughan, Stevens, McCowan, and O'Quinn and for the supervisory claims against defendants Lt. Gilbert and Sgt. Hall. Accordingly, I deny Plaintiffs motion for summary judgment, grant in part and deny in part Defendants' motion for summary judgment, and the defendants may file additional briefing as to the state law and remaining federal law claims.


         Plaintiff was not escorted out of his segregation cell to enjoy recreation or showers on January 20 and 30, February 17 and 27, and March 11 and 12, 2016.[2] Defendants Vaughan, Stevens, McCowan, and O'Quinn were the correctional officers who allegedly refused to escort Plaintiff to recreation and showers.[3] Vaughan, Stevens, McCowan did not escort Plaintiff allegedly because he did not perform the strip search procedure satisfactorily.[4] No staff other than Vaughan, Stevens, and McCowan ever gave Plaintiff any issue about his performance of the strip search procedure.

         The stripe search procedure is designed to discover contraband, to ensure the safety of staff and inmates, and to maintain discipline. During a strip search, two officers stand at the cell door and order the inmate to move to the back of the cell so staff may visually inspect his hands. The inmate then removes all clothing and passes it to an officer for inspection. Staff orders the naked inmate to move to the center of the cell for observation. Staff visually inspects the inmate's head, hair, mouth, torso, legs, and feet. To facilitate this inspection, the inmate must open his mouth, raise his arms, turn completely around, spread his legs, raise his penis and testicles, turn around to face the back of the cell, spread his buttocks, bend over, squat, and cough. The inmate's inspected clothes are returned. If the inmate completed the inspection satisfactorily, he would be restrained and removed from the cell.

         Inmates at Red Onion perform the strip search procedure each time before they leave their cells.[5] Upon returning to their cells, inmates are frisked and do not again perform the strip search procedure.

         Plaintiff alleges that Vaughan, Stevens, McCowan and defendant O'Quinn conspired and used the strip search procedure as retaliation after Plaintiff filed complaints about their denying him recreation and showers, Inf.compl. #132

         Plaintiff also alleges that Vaughan, Stevens, and McCowan made Plaintiff perform the strip search procedure already knowing they would deny him recreation and showers anyway. Stevens allegedly retaliated also by issuing to Plaintiff a false disciplinary charge. Stevens, Vaughn, and McCowan allegedly admitted to Plaintiff that the retaliation was because he called the Prison Rape Elimination Act ("PREA") Sexual Assault Hotline on January 17 and February 5 and filed an informal complaint on January 19. Both the calls and the informal complaint would be routed to the pod staff responsible for Plaintiffs housing.

         Plaintiff faults several supervisory officials. Plaintiff allegedly told defendants Lt. Gilbert and Sgt. Hall on January 20 about Vaughan, Stevens, McCowan, and O'Quinn's allegedly unlawful acts, but nothing was done. Lt. Gilbert responded to the informal complaint, noting on January 29 that there was no evidence to support a "procedural violation" for the strip searches. Lt. Gilbert observed Plaintiff perform the strip search procedure on March 10 and acknowledged that Plaintiff did not have any difficulty performing the routine and should not have any problem receiving recreation or showers. Yet the next day and on March 12, Vaughan and McCowan retaliated again by alleging Plaintiff failed to perform the procedure. Plaintiff he says he wrote letters to defendants Barksdale, who was the Warden, and Shortridge, who was Red Onion's PRE A Manager, without effect.


         Defendants filed a motion for summary judgment, arguing, inter alia, the defense of qualified immunity. A party is entitled to summary judgment if the pleadings, the disclosed materials on file, and any affidavits show that there is no genuine dispute as to any material fact. Fed.R.Civ.P. 56(a): see Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (recognizing a party is entitled to summary judgment if the record as a whole could not lead a rational trier of fact to find in favor of the non-movant). "Material facts" are those facts necessary to establish the elements of a party's cause of action. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of material fact exists if, in viewing the record and all reasonable inferences drawn therefrom in a light most favorable to the non-moving party, a reasonable factfinder could return a verdict for the non-movant. Id. The moving party has the burden of showing - "that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the movant satisfies this burden, then the non-movant must set forth specific facts that demonstrate the existence of a genuine dispute of fact for trial. Id. at 322-24. Summary judgment is inappropriate if the evidence is sufficient for a reasonable fact-finder to return a verdict in favor of the non-moving party. Anderson, 477 U.S. at 248.

         Even if there is no dispute as to the evidentiary facts, summary judgment is not appropriate where the ultimate factual conclusions to be drawn are in dispute. Overstreet v. Ky. Cent. Life Ins. Co., 950 F.2d 931, 937 (4th Cir. 1991). A court may not resolve disputed facts, weigh the evidence, or make determinations of credibility. Russell v. Microdyne Corp., 65 F.3d 1229, 1239 (4th Cir. 1995). Instead, a court accepts as true the evidence of the non-moving party and resolves all internal conflicts and inferences in the non-moving party's favor. Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979). A party "cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). Therefore, "[m]ere unsupported speculation ... is not enough to defeat a summary judgment motion." Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). Also, a plaintiff cannot use a response to a motion for summary judgment to amend or correct a complaint challenged by the motion for summary judgment. Cloaninger, 555 F.3d at 336.

         Qualified immunity permits "government officials performing discretionary functions ... [to be] shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Because qualified immunity serves as an immunity from pretrial matters, I find it proper to first consider Defendants' defense of qualified immunity at the earliest opportunity and before addressing other affirmative defenses that may require a hearing. Consequently, I defer disposition of Defendants' exhaustion defense per 42 U.S.C. § 1997e(a) until after qualified immunity is resolved.



         Plaintiff argues that Defendants violated due process guaranteed by the Fourteenth Amendment by not providing an adequate remedy for him to address the deprivation of recreation and showers seven times during a fifty-two day period in 2016. Defendants are entitled to qualified immunity and summary judgment for these claims.

         The Due Process Clause of the Fourteenth Amendment prohibits a state from depriving "any person of life, liberty, or property without due process of law." U.S. Const, amend. XIV, § 1. "To state a procedural due process violation, a plaintiff must (1) identify a protected liberty or property interest and (2) demonstrate deprivation of that interest without due process of law." Prieto v. Clarke, 780 F.3d 245, 248 (4th Cir. 2015). "A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word 'liberty, ' ... or it may arise from an expectation or interest created by state laws or policies." Wilkinson v. Austin, 545 U.S. 209, 221 (2005). A state regulation may create a protected liberty interest only if it provides "a basis for an interest or expectation" regarding a condition of confinement, Prieto, 780 F.3d at ...

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