United States District Court, W.D. Virginia, Roanoke Division
JACKSON L. KISER SENIOR UNITED STATES DISTRICT JUDGE.
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. 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
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. Defendants Vaughan, Stevens,
McCowan, and O'Quinn were the correctional officers who
allegedly refused to escort Plaintiff to recreation and
showers. Vaughan, Stevens, McCowan did not escort
Plaintiff allegedly because he did not perform the strip
search procedure satisfactorily. No. staff other than
Vaughan, Stevens, and McCowan ever gave Plaintiff any issue
about his performance of the strip search procedure.
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.
at Red Onion perform the strip search procedure each time
before they leave their cells. Upon returning to their cells,
inmates are frisked and do not again perform the strip search
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.
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.
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 fact-finder 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. IcL 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.
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.
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. §
l997e(a) until after qualified immunity is resolved.
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
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 250, and involves a
condition that "impose atypical and significant
hardship ... in relation to the ordinary incidents of prison
life." Sandin v. Conner. 515 U.S. 472, 484
inability to have recreation or a shower seven times during a
fifty-two day period in 2016 does not exceed a sentence in
such an extreme way as to give rise to the protection of the
Due Process Clause by its own force. See, e.g.,
Beverati v. Smith, 120 F.3d 500, 503 (4th Cir. 1997)
(holding that administrative segregation for six months with
vermin; human waste; flooded toilet; unbearable heat; cold
food; dirty clothing, linens, and bedding; longer periods in
cell; no outside recreation; no educational or religious
services; and less food was not so atypical as to impose
significant hardship). Nor does that inability constitute an
"atypical and significant" hardship in relation to
the ordinary incidents of prison life as it is not an unusual
circumstance in prison life that recreation and showers may
be forfeited occasionally. See, e.g., id; Rivera
v. Mathena. No. 7;I6CVOO346, 2017 U.S. Dist. LEXIS
128447, at *19, 2017 WL 3485012, at *7 (W.D. Va. Aug. 14,
2017); Conn v. Stolle, No. l;llcv758, 2011 U.S.
Dist. LEXIS 84859, at *8, 2011 WL 3321136, at *3 (E.D. Va.
July 29, 2011). Furthermore, Plaintiff has no constitutional
right to access grievance procedures. Booker v. S.C.
Dep't of Com, 855 F.3d 533, 541 (4th Cir. 2017);
Adams v. Rice,40 F.3d 72, 74 (4th Cir. 1994).
Moreover, a claim that prison officials have not followed
their own independent policies or procedures also does not
state a constitutional claim. See, e.g., United