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Perry v. JPAY, Inc.

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

March 13, 2018

CALVIN PERRY, Plaintiff,
v.
JPAY, INC., et al., Defendants.

          MEMORANDUM OPINION

          Elizabeth K. Dillon United States District Judge

         Calvin Perry, a Virginia inmate proceeding pro se, [1] filed this action pursuant to 42 U.S.C. § 1983 alleging claims against defendants JPAY, Inc. (JPAY), and various prison officials at Green Rock Correctional Center (Green Rock) for violation of his rights under the First, Eighth, and Fourteenth Amendments[2] while Perry was incarcerated there. (Dkt. No. 1.) Defendants filed a motion to dismiss for failure to state a claim, to which Perry responded, and this matter is ripe for disposition. (Dkt. Nos. 29, 32.) Upon review of the record, the court concludes that defendants' motion to dismiss will be granted in part and denied in part.

         I. BACKGROUND

         Perry asserts a multitude of claims, most of which arise from separate sets of facts. First, Perry alleges in his verified complaint that he was subjected to ongoing and daily “imminent danger of irrevocable harm” because he is assigned to a top bunk bed. Specifically, he fears “death or paralyzation” because he is “58 years old and on chronic medications that make [him] dizz[y], ” and the bunk bed has no safety rail to prevent him from rolling or falling off while sleeping. Although Perry does not state he has been injured, he fears future injury and asserts “several inmates” have fallen off the top bunk at Green Rock during their sleep. Perry submitted a grievance and an informal complaint on February 29, 2016, requesting that the prison install safety rails; however, Grievance Coordinator Massenburg rejected the grievance at intake because it was a “request for services.” Unit Manager Lovern responded to the informal complaint, explaining that Perry needed to submit a request form to the prison doctor to receive a bottom bunk pass and that, in the meantime, prison staff would try to accommodate him with a bottom bunk if one became available in the “A” building. Perry, nonetheless, does not acknowledge Lovern's response and contends that Massenburg intentionally failed to process the grievance and that Crowder was deliberately indifferent in failing to reverse Massenburg's decision. (Compl. ¶¶ 45-47, Ex. E, Dkt. No. 1.)

         Perry next asserts he is subjected to ongoing inadequate lighting in his cell. Unit Managers Booker and Lovern would give prison staff daily instructions to turn off the cell lights immediately after “each count is completed, ” causing Perry to strain his eyes “trying to see in the dark cell to read or to do [his] homework or to retrieve items from [his] locker.” As a result, Perry “developed chronic migraines, [his] eyes are constantly hurting and [he is] fatigue[d] all the time.” On April 22, 2016, Perry filed a grievance complaining of the dim cell lighting, but it was denied as “unfounded, ” and Perry appealed. On May 2nd, Perry went to the prison medical department to seek treatment for his migraines and eye pain, explaining to Nurse Betterton that his symptoms were a result of “straining to see in this ‘extremely' dim cell.” After treating him, Nurse Betterton told Perry, “[t]here's no treatment I can give to you for those ailments, I'm sorry.” That same day, Perry filed an informal complaint for being denied medical treatment. (Compl. ¶¶ 29- 30, 50, Dkt. No. 1.)

         As he was leaving the medical department, Perry encountered Warden Booker and complained to him about the inadequate cell lights. In response, Warden Booker told him that “the inmates here like being in the dark, they took a vote for the bright cell lights to be turn[ed] off, I suggest you buy yourself a lamp from the canteen.” On or about May 3rd, Perry asked Unit Manager Lovern why he authorized prison staff to turn off the cell lights after each count is completed, but Lovern did not answer and instructed Perry to return to his assigned area. Perry then received the decision from his grievance appeal on May 16th, which Regional Director Marcus Elam denied, affirming that it was “unfounded.” Perry contends that Elam “was deliberate[ly] indifferen[t] to [his] basic human needs by failing to correct” the cell lighting issue “when it was in [Elam's] authority to do so.” (Compl. ¶¶ 30-34, Dkt. No. 1.)

         On May 16th, Perry filed an additional grievance repeating his claim that he was denied medical treatment at his May 2nd visit with Nurse Betterton. (Compl. Ex. B, Dkt. No. 1-2.) In response to the grievance, Nurse Cobbs reported that the treatment Nurse Betterton offered on May 2nd was to refer Perry to an eye doctor and to direct him to resubmit a sick call request for any ongoing medical problems. In his complaint, however, Perry asserts that he is “not in need of visual service from an eye doctor, there is nothing wrong with my vision.” Rather, Perry insists that he sought medical treatment “because the cell lights are intentionally turn[ed] off for over 23 hours every day” and that Nurse Betterton “plainly denied” him medical treatment for it. (Compl. ¶¶ 52-54, Ex. G, Dkt. No. 1.)

         Perry next asserts that he was subjected to ongoing exposure to dog feces in the exercise yard because the prison houses six dogs who use the yard to relieve themselves daily. As a result, the exercise yard is “pungent with fees and urine, ” and, even though the feces are sometimes removed, Perry asserts he is still “subjected to the pungent odor and parvovirus.” On May 19th, after Perry filed a grievance and an informal complaint on the matter, Unit Manager Collins and Lieutenant Ridge summoned Perry to their office “in regards to the [ ] complaint.” Collins stated to Perry that he did not detect any odors from the exercise yard; however, Perry contends that Collins denies the odor because the prison “receiv[es] a large grant for warehousing these [ ] dogs on the prison compound.” During the meeting, Collins told Perry, “Since you're complaining about the dogs, I'm going to get Lt. Ridge to move you across the yard to another [building].” Afterwards, Perry filed an additional grievance on May 26th, complaining of Unit Manager Collins and Lt. Ridge's response and claiming their conversation with him was an “act of reprisal.” (Compl. ¶¶ 39-41, Exs. D-1, D-2, Dkt. No. 1.)

         On June 23, Lt. Ridge went to Perry's cell in the “A” building and stated, “Mr. Perry, since you like writing complaints on the dogs, pack your stuff up. I am moving you across the yard to “C” [building] cell #220 bottom bunk.” Perry responded, “I have not requested to be moved and I do not want to be moved to “C” nor “D” [building]. I'm okay right here on “A” side.” Lt. Ridge responded back, “You are being moved to “C” [building] this morning and if you refuse to move, I will place you in jail, ” referring to the segregation unit. (Compl. ¶ 42, Dkt. No. 1.) Regarding these incidents, Perry alleges that Grievance Coordinator Massenburg “intentionally failed to process” his May 19th and May 26th grievances and “prevented him from exhausting his complaint” on the matter. As noted by the intake forms, the first grievance was not logged because it was a “request for services” and the second grievance was not logged because it “[did] not affect [Perry] personally.” Perry argues that Regional Ombudsman Crowder was deliberately indifferent to his rights by failing to reverse Massenburg's decision to not process the grievances when it was in Crowder's authority to do so. (Compl. ¶¶ 43-44, Dkt. No. 1.)

         Perry next asserts that he is exposed to the ongoing practice of haircuts being given “approximately eight feet from the microwave oven where food is prepared and approximately three feet from where [Perry] sit[s] and eat[s] [his] food.” Perry states that the non-licensed inmate barber “shakes the barber's cape” after each haircut, causing hair particles to shake all over the area and “subjecting [Perry] to the spread of communicable diseases and hair particles in [his] food.” On July 1, 2016, Lt. Childress told Perry that these “barbershops were using proper cleaning and sanitizing chemicals and that she [saw] no need to change anything[.]” Perry contends that none of the buildings in Green Rock have actual “barbershops” and that he filed a grievance on the prison's haircutting practices on July 1st. The grievance was rejected at intake citing that the issue did not affect Perry personally, even though Perry argues that Massenburg intentionally failed to process the grievance. Perry argues that Crowder was deliberately indifferent to his rights by failing to reverse Massenburg's decision to not process the grievance. (Compl. ¶¶ 48-51, Ex. F, Dkt. No. 1.)

         Perry next asserts he was denied ongoing access to toilet facilities during his exercise time. There are no urinals in the exercise yard, and Perry is “forced to hold his body waste for an hour or more before a bathroom break is provided.” As a result, there have been “several” times where Perry was “forced to urinate on [himself], spoiling [his] clothes.” On June 23rd, Perry filed an informal complaint complaining of the lack of toilet facilities, which Warden Booker denied and responded to Perry, “you are correct in your assessment.” Perry then filed a grievance on July 1st, which Massenburg denied as untimely. Perry contends that Massenburg intentionally failed to process the grievance and that Crowder was deliberately indifferent in failing to reverse Massenburg's decision on appeal. (Compl. ¶¶ 55-57, Ex. H, Dkt. No. 1.)

         Finally, Perry names as a defendant JPAY, Inc., a private music vendor who sells music devices and music to prisoners. Perry asserts that in November of 2014, he purchased a JP4 music device from JPAY for $49.95 that would malfunction. After Perry made numerous complaints, JPAY replaced Perry's JP4 music device with another one, which Perry attempted to connect to JPAY's music kiosk to download all the songs he had previously purchased from JPAY. Perry alleges that, contrary to JPAY's contract and policy, Perry was unable to access his purchased songs “off the Best of Keith Sweat album” as they were lost during the replacement process. Perry asserts that JPAY was “intentional[ly] negligent in losing and permanently taking away [his] pre-paid property without authorization, ” and he had to seek mental health treatment for emotional distress “as a result of JPAY[ ] negligently depriving [him] of [his] property and taking advantage of [him.]” (Compl. ¶¶ 35-38, Dkt. No. 1.)

         Presently before the court is defendants' motion to dismiss Perry's claims. Perry moved for a preliminary injunction against the defendants and for default judgment against JPAY. The court will address each in turn. Although JPAY is a named defendant, JPAY has not filed a motion to dismiss or otherwise appeared in this case. As an initial matter, the court will address Perry's motion for default judgment against defendant JPAY, Inc. and the applicability of Section 1983 as to this defendant.

         II. DISCUSSION

         A. Motion for Default Judgment against JPAY

         Perry moves for entry of default judgment against JPAY, arguing that JPAY failed to respond to Perry's complaint. (Mot. for Default J., Dkt. No. 34.)

         1. Improper service

         As noted at the outset of this decision, defendant JPAY is the only defendant who has not filed a motion to dismiss or had an attorney appear on its behalf in this case. In his complaint, Perry indicates that JPAY is a Florida corporation, and he later provides “proof of service” by means of a certified mail receipt addressed to: “J-Pay Incorp., 12864 Biscayne Blvd, St. 243, Miami, FL 33181.” (Dkt. No. 27.) Contrary to Perry's assertion, however, it appears that JPAY's failure to participate in this case is attributable to their lack of knowledge of the lawsuit. A review of the record shows that Perry did not effectuate proper service on JPAY pursuant to Rule 4 of the Federal Rules of Civil Procedure.

         “Absent waiver or consent, a failure to obtain proper service on the defendant deprives the court of personal jurisdiction over the defendant.” Koehler v. Dodwell, 152 F.3d 304, 306-07 (1998) (noting that “any judgment entered against a defendant over whom the court does not have personal jurisdiction is void”). A plaintiff may either request a waiver of service from defendant or effect proper service. See Fed. R. Civ. P. 4(m). Perry chose not to seek a waiver, and, therefore, needs to have properly served pursuant to Rule 4.

         Under Rule 4(h), proper service upon a corporate defendant may be effected “by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process.” Alternatively, a plaintiff may serve process in a manner approved by state law for an action brought in courts of general jurisdiction in the state where the district court is located or where service is made. See Fed. R. Civ. P. 4(h)(1); Rule 4(e). Perry can satisfy the requirements of Rule 4 in this case by following the rules for service of process in Virginia (the state where the district court is located) or Florida (where Perry attempted to effectuate service). In Virginia, a corporation may be served by “personal service on any officer, director, or registered agent” or, if the registered agent cannot be found with reasonable diligence at the registered office, then by serving the clerk of the State Corporation Commission. Va. Code Ann. §§ 8.01-299, 13.1-637. Alternatively, Florida law provides that process against any private corporations may be served:

(a) On the president or vice president, or other head of the corporation;
(b) In the absence of any person described in paragraph (a), on the cashier, treasurer, secretary, or general manager;
(c) In the absence of any person described in paragraph (a) or paragraph (b), on any director; or
(d) In the absence of any person described in paragraph (a), paragraph (b), or paragraph c), on any officer or business ...

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