United States District Court, W.D. Virginia, Roanoke Division
MICHAEL S. GORBEY, Plaintiff,
Lt. J. BOWLES, et al., Defendants. MICHAEL S. GORBEY, Plaintiff,
Lt. AVERY, et al., Defendants.
REPORT AND RECOMMENDATION
Meade Sargent, United States Magistrate Judge
S. Gorbey, (“Gorbey”), a federal inmate
proceeding pro se, brings these civil rights actions against
various Bureau of Prisons, (“BOP”), employees of
the United States Penitentiary Lee, (“USP Lee”),
pursuant to Bivens v. Six Unknown Named Agents, 403
U.S. 388, 389 (1971). Because at least three of Gorbey's
previous complaints have been dismissed with prejudice for
failing to state a claim upon which relief may be granted,
under 28 U.S.C. § 1915A(b)(1), Gorbey may not proceed
with these actions unless he pays the filing fee or shows
that he was under “imminent danger of serious physical
injury.” 28 U.S.C.A. § 1915(g) (West 2006). These
matters are before the undersigned magistrate judge by
referral, pursuant to 28 U.S.C. § 636(b)(1)(B), to
conduct an evidentiary hearing to determine if Gorbey was
under imminent danger of serious physical injury at the time
he filed each of these actions. See Martin v.
Shelton, 319 F.3d 1048, 1050 (8thCir. 2003).
Evidentiary hearings were conducted on September 8 and 26,
2017, with Gorbey participating by video conference. The
undersigned now submits the following report, recommending
that the court find that Gorbey was not under imminent danger
of serious physical injury at the time that he filed each of
Complaint filed with the court on March 8, 2017,
No. 7:17cv91, Gorbey alleged that the defendants were holding
him in a special housing unit, (“SHU”), cell in
deliberate indifference to certain unsanitary conditions in
retaliation for his filing a prior lawsuit. (No. 7:17cv91,
Docket Item No. 1.) The Complaint alleged that the defendants
purposefully placed Gorbey in cell A-111 on February 28,
2017, with a malfunctioning toilet. The Complaint stated, in
Every day the toilet has been backing up & overflowing
flooding the cell with feces & dirty water while Gorbey
is forced to use his own towel & linen to [clean] it up
& being forced to [breathe] & walk in such conditions
while staff [continue] to fail to pick up trash
(repeatedly for weeks)[.]
Gorbey has been sick, [losing] weight, feeling feverish &
[constantly] sleepy while [a bacterial] infection on his
face, back & arms returns and though he submitted
sick-call slips of 3-2-17 and 3-6-17.
(Complaint at 2-3.) At another point in his Complaint, Gorbey
stated that the USP Lee staff were picking up the trash from
his SHU cell “every several days.” (Complaint at
2.) Gorbey also alleged that the delivery of his incoming
mail was being delayed and that his outgoing mail was being
destroyed. (Complaint at 4.)
March 20, 2017, Gorbey filed an Amended Complaint, (Docket
Item No. 3), which also alleged that staff were refusing to
pick up trash from Gorbey's cell. The Amended Complaint
stated, in part: “Being repeatedly kept in these
conditions around [feces and urine] has made Gorbey …
sick & caused bacterial infections, posing a threat to
his safety.” (Amended Complaint at 3.) Gorbey also
alleged that he had been refused medical assessment for more
than 12 days after he requested to be placed on sick call,
clean laundry had been provided on only two occasions during
the previous 30-day period, and the ventilation system was
either blowing cold air or not blowing any air. He also
alleged that none of his personal mail was getting through
and that almost all of his legal mail was tampered with.
Complaint filed with the court on April 23, 2017,
No. 7:17cv192, Gorbey alleged that the defendants were
deliberately indifferent to the threat to his safety by being
placed in a cell with a hostile, violent offender “for
several months.” (No. 7:17cv192, Docket Item No. 1 at
2.) Gorbey also complained that the defendants had held him
in administrative detention for an unreasonable period of
time and that they were delaying or tampering with his mail.
September 8 evidentiary hearing, Gorbey testified that he
placed his Complaint in No. 7:17cv91 in the USP Lee
institutional mail to be mailed to the court on March 8,
2017. He said that he placed an Amended Complaint in the USP
Lee institutional mail to be mailed to the court on March 14,
2017. He said that when he mailed his Complaint in this case,
he was being held in cell A-111 at USP Lee. He said the
ventilation in this cell had been cut off for “a
while.” He said that everything in his cell was
“sweating, ” and “nothing” was dry.
He testified that the cell was soaking wet and that even his
clothes and towels were mildewing from the dampness. He said
that trash had been sitting in his cell for three to five
days without being picked up. He said the toilet was broken
and that he told the staff that the toilet in the cell was
broken before they moved him into the cell on March 4, 2017.
testified that the toilet in cell A-111 overflowed on the
morning of March 8, 2017. He said that the toilet overflowing
was an everyday occurrence. He said that the toilet was
flushed from outside of the cell. He said officers would hit
the flush button, and the toilet would clog and not flush;
the officers would hit the flush button again, and the toilet
would overflow. He said that, on the morning of March 8,
2017, officers came by cell A-111 and picked up the trash. He
said they pushed the toilet flush button and watched as the
toilet overflowed. Gorbey said that he did not know the names
of the officers who did this, but he had obtained their names
later, but could not remember them. He claimed that one of
the officers came back later and threatened him to not file
any complaint about his actions.
said that Lt. Bowles came by and saw that the toilet in his
cell had overflowed, and Gorbey told him that he was going to
file a lawsuit. He said that Bowles refused to give him a
plunger and said, “you can include the plunger”
in your lawsuit. Gorbey admitted that his cell door had a
space at the bottom, which would allow the water from an
overflowing toilet to run outside of the cell.
after testifying that the officers had picked up the trash
earlier in the morning of March 8, Gorbey then testified that
the trash was piled “three feet high” on the cell
floor that morning because, he said, it had been a couple of
days since anyone had picked up the trash. Gorbey later
testified that, prior to the morning of March 8, 2017, the
trash had not been collected from his cell since March 4.
testified that he was moved from cell A-111 on March 9, 2017.
He said that when he placed his Amended Complaint in the mail
on March 15, 2017, he was being housed in cell B-205. Gorbey
testified that the conditions in cell B-205 were the same as
in cell A-111, with a malfunctioning toilet and no
ventilation. In fact, Gorbey testified that the toilet in
cell B-205 overflowed on the morning of March 15 before he
mailed his Amended Complaint. Gorbey said, “Just
because it didn't kill me doesn't mean I wasn't
under an imminent danger.” Gorbey said that dirty
laundry was picked up in the SHU at USP Lee an average of
once a week, and it was not returned for four to five days
later. Gorbey also testified that he had repeatedly requested
to see Medical because he was sick and was suffering from a
rash all over his body. Gorbey admitted that he filed his
first sick call request on February 28, 2017, while being
housed in cell A-112. He said that he also filed requests on
March 2, 6, 8 and 13, 2017. Gorbey said that on March 6, 8
and 13 he requested to be seen by the medical staff for his
rash and a lung infection. He said that he was not seen by
Medical until March 29, 2017.
testified that when he saw Medical on March 29, 2017, he was
suffering from a fever, had been losing weight, and he had a
lung infection and a rash. Gorbey said that, by the time he
saw Medical, the rash on his arms had gone away, but he still
had the rash on his back. He claims that these rashes started
when he was moved into cell A-112. Before this, he testified,
he only had rashes on his face, which had been diagnosed as
dermatitis. Gorbey said that he was given an antibiotic for
his lung infection, but his rash was never treated.
also testified that the fact that his legal mail was being
tampered with placed him in imminent danger. He said that it
allowed prison officials to know what he had filed in his
cases, and it had resulted in delays in his incoming and
outgoing legal mail. Gorbey said the delays in the mail
interfered with his ability to utilize the prison's
said USP Lee was on lockdown on March 8 and, because of this,
trash was not being picked up from the cell, and inmate
laundry was not being done on a regular basis. He said that
he had to wear the same clothes for days.
testified that he placed his Complaint in No. 7:17cv192 in
the USP Lee institutional mail on April 23, 2017, while he
was housed in cell B-205. He said that, later that night, he
was moved away from his cellmate to cell B-204. Gorbey
testified that when he filed this Complaint, he was being
housed in cell B-205 with a violent Puerto Rican gang member
who did not speak English, who was serving time for murder
and who did not want to be housed in a cell with Gorbey.
Gorbey said that his cellmate made a verbal request to Lt.
Salcito to be moved out of the cell with Gorbey, but prison
staff did not move him. Gorbey said that he also asked Lt.
Salcito to move either him or his cellmate. Gorbey said that
he made the request because his cellmate was “becoming
hostile.” He said his cellmate was trying to
“push his way around the cell” and was
“being threatful and wanting to fight.” Gorbey
testified that he submitted a request form to Lt. Avery on
April 18, 2017, asking to be moved. He said that he submitted
a second request form on April 19, 2017, to Avery and Salcito
asking to be moved. He said that he spoke with Salcito on
April 19 or 20 and told him that his cellmate did not want
him in the cell. Gorbey said that, on April 20, 2017, he
submitted a request form saying that his cellmate had kicked
him, and he threatened to file suit if he was not moved. He
said that, on April 23, 2017, he submitted another request to
be moved because his cellmate was kicking and punching at him
and trying to start a fight.
said that Lt. Pratt came to his cell on April 23, and he
asked him about his request to be moved. He said that Pratt
said that he gave the request to “No. 1” to deal
with it. Gorbey said that he had no idea who Pratt was
referring to when he said “No. 1.” Gorbey said
that he believes that he and his cellmate were deliberately
left in the cell together in an effort to get Gorbey in
trouble for fighting. Gorbey said that, later on April 23,
2017, he was standing near the sink in the cell when his
cellmate pushed him into the table. He said that he mailed
his Complaint to the court later that night.
testifying earlier that he was moved to another cell away
from his cellmate, Gorbey later testified that his cellmate
was removed from his cell on the next day, April 24, 2017.
Gorbey also said that he submitted a sick call request on
April 24, but he did not see Medical. He said that he
submitted another sick call request the next day, April 25,
and a nurse, Karen Pease, came and looked at his side. He
said that he did not want to talk to the nurse about what had
happened to him at his cell door. Gorbey said that if he
reported another inmate hurting him and other inmates heard
him, he would be considered a “rat” and be in
imminent danger. He said that it was not correct that he had
not reported any symptoms to the nurse on April 25. He said
that he told the nurse that he did not want to talk to her
about his injury at his cell door. He claimed that the nurse
did not examine him. Gorbey said that he never received any
additional medical treatment while housed at USP Lee.
cross-examination, Gorbey testified that he had copies of his
sick call requests because he had used carbon paper to make
copies of the requests. Gorbey also said that he had filed
numerous administrative remedies requests based on a failure
of USP Lee staff to provide him with medical care. He said
that none of his requests for medical treatment for his
bacterial infection was ever answered.
redirect, Gorby testified that Defense Exhibit Nos. 3 and 4
showed that the officials at USP Lee were deliberately moving
him into cells with broken toilets because it shows that he
was moved more often than the usual 21-day cell rotation.
Agent Jimmy Baker also testified at Gorbey's hearings.
Baker said that, as the agent over the Special Investigations
Unit at USP Lee, he made weekly rounds in the SHU. Baker also
testified that SHU officers, case managers, unit managers and
duty officers all would do rounds routinely through the SHU.
He said that, if Gorbey had notified any of these persons
that he was having trouble with his cell's toilet, it
could have been remedied. Baker said that trash is routinely
picked up in the SHU after every meal. He said that he was
not aware of any complaints concerning feces in the cells,
rotting food or smelly trash, and he never saw any such
conditions in cell A-111 or any other cell in the SHU.
said that Defense Exhibit No. 1 was Gorbey's Special
Housing Unit Record, or form 292. (No. 7:17cv91, Docket Item
No. 58-1; No. 7:17cv192, Docket Item No. 45-1.) He said that
these forms indicated whether Gorbey had meals, showers,
recreation or other time outside of his cell each day. For
instance, Baker said that the forms indicated that Gorbey
refused recreation on February 27 and 28 and March 2, March
5, March 14-16, March 19-20 and March 23. He said the form
also indicated which nurse made rounds in the SHU on each
day. Baker said that Defense Exhibit No. 2 was the Special
Housing Unit Record, or 292 form, for Gorbey's cellmate.
(No. 7:17cv91, Docket Item No. 58-2; No. 7:17cv192, Docket
Item No. 45-2.)
said that he had no knowledge that Gorbey had any complaints
about being in a cell with a hostile cellmate in April 2017.
He said that he had never received any information that would
cause him to do a threat assessment of a threat posed to
Gorbey by the cellmate. He said that he was aware that Gorbey
was now claiming that his cellmate had kicked or shoved him,
but he said that Gorbey never reported it at the time or it
did not happen. Baker said he had no knowledge of Gorbey ever
filing a BP-9 form with regard to a complaint about a hostile
cellmate, and, if he had, it would have been forwarded to
Baker's attention. He also said that Gorbey had ample
opportunity to speak to anyone who did rounds in the SHU,
including the Warden himself.
did agree that, if the prison was on lockdown, no one was
offered recreation. He said that, in his experience, SHU
inmates typically refuse recreation. He also testified that
all SHU inmates are served meals in their cells.
Alfredo “Freddie” Salcito also testified at
Gorbey's hearing. Salcito said that he worked in the SHU
at USP Lee while Gorbey was housed there. He said that he was
not aware of any problem with the toilets flooding in the SHU
at USP Lee. Salcito said that he was one of only a few
correctional officers who spoke Spanish at USP Lee, and he
would regularly communicate with Gorbey's Puerto Rican
cellmate when they were housed together in the SH U.Salcito
said that Gorbey's cellmate did request to be moved into
a cell with another Puerto Rican inmate. Salcito said that
Gorbey's cellmate was in the SHU in protective custody,
not for disciplinary reasons. Salcito said Gorbey's
cellmate posed no threat to Gorbey. Salcito testified that,
based on his recollection, Gorbey and this Puerto Rican
inmate were housed together from February 4 to April 24,
2017, in cell 211.
said that he spoke with Gorbey while he was in the cell with
this inmate, and Gorbey never gave him any indication that
there were any hostilities between the two. He said that
Gorbey told him that his cellmate wanted to be moved into a
cell with another inmate from Puerto Rico. He said that he
never knew that the cellmate had kicked or shoved Gorbey.
Salcito said that he did not know why Gorbey's cellmate
was moved out of the cell on April 25. He said that he did
not recall ever receiving anything from Gorbey in writing
complaining about this cellmate. He said that he got the
impression that Gorbey wanted his cellmate moved so that he
would have a cell by himself for a period of time.
said that he did remember a time when Gorbey asked for a
plunger, and he gave him a plunger. Salcito said that he
flushed the toilet, and it did not overflow. He said that he
had walked by and seen cell toilets overflow. He said that,
when that happened, the officers would give the inmate a
plunger and then move the inmate to a cell with a working
toilet until maintenance could fix the toilet.
testified that Defense Exhibit No. 3 was Gorbey's Inmate
Quarters History. (No. 7:17cv91, Docket Item No. 58-3; No.
7:17cv192, Docket Item No. 45-3.) He said that Defense
Exhibit No. 4 was the Inmate Quarters History of the cellmate
that Gorbey claims posed a danger to him. (No. 7:17cv91,
Docket Item No. 58-4; No. 7:17cv192, Docket Item No. 45-4.)
Salcito said that these records showed that Gorbey and this
cellmate were housed in the same cells from February 4 to
April 24, 2017.
Inmate Quarters History shows that he was housed in cell 111
from March 4 to March 9, 2017, in cell 205 from March 9 to
March 15, 2017, in cell 204 from March 15 to April 2, 2017,
in cell 205 from April 2 to April 16, 2017, in cell 212 from
April 16 to April 20, 2017, and in cell 209 from April 20 to
May 8, 2017. (No. 7:17cv91, Docket Item No. 58-3; No.
7:17cv192, Docket Item No. 45-3.) His cellmate's Inmate
Quarters History shows that he was housed in cell 111 from
March 4 to March 9, 2017, in cell 205 from March 9 to March
15, 2017, in cell 204 from March 15 to April 2, 2017, in cell
205 from April 2 to April 16, 2017, in cell 212 from April 16
to April 20, 2017, and in cell 209 ...