United States District Court, W.D. Virginia, Roanoke Division
TERRENCE A. HARVEY, Plaintiff,
T. LARGE, et al., Defendants.
K. MOON SENIOR UNITED STATES DISTRICT JUDGE.
A. Harvey, a Virginia inmate proceeding pro se,
filed this civil rights action pursuant to 42 U.S.C. §
1983 alleging that Defendants Lieutenant L. Collins,
Lieutenant S. Franklin, Lieutenant E. Miller, and
Correctional Officers Woliver, Gibson, and
Addingtonviolated his Eighth and Fourteenth
Amendment rights by placing him in five-point restraints for
22 hours while housed at the Red Onion State Prison. (Docket
No. 61) Defendants filed a motion for summary judgment
(Docket No. 89) and Harvey responded, making this matter ripe
for disposition. Upon review of the record, I conclude that
Defendants' motion for summary judgment must be granted
in part and denied in part.
alleges that on March 18, 2015 at approximately 9:00 am,
Sergeant Large used excessive force against him by assaulting
him multiple times with no provocation or justification,
causing Harvey to suffer physical injuries. Sgt. Large called
in other officers to assist him in placing Harvey, who was
only wearing boxer briefs, in ambulatory restraints even
though Harvey had a “lacerated bottom lip and [open]
flesh wounds” from the assault. Am. Compl. ¶ 15,
Docket No. 61. Harvey was then escorted, in ambulatory
restraints, from A Building to B Building to be placed in
segregation housing. During the transport, Harvey alleges
that Officers Gibson, Addington, and Woliver
“unjustifiably slammed” Harvey to the concrete
side walk, causing injuries to both of his knees and
subsequent bleeding. Id. ¶¶ 20-21. Harvey
alleges that a spit mask was then placed on him “as
justification for the  officers['] assault”
because it gave the “rationale” that Harvey
attempted to spit on one of them. Id. ¶ 22.
Shortly thereafter, Harvey was placed in five-point
restraints by Lt. Franklin, Sgt. Collins, and
Officers Addington and Woliver, despite not “displaying
any intractable behavior” or receiving any medical
treatment for his injuries. Nurse Kelly came to assess the
five-point restraints and any injuries, but provided Harvey
no medical treatment, despite seeing that he was bleeding.
Harvey alleges that Nurse Kelly never attempted to see his
lacerated lip, as it was under the spit mask, and told Harvey
to put soap and water on his actively bleeding knees even
though she knew it would be impossible to do so while he was
in five-point restraints. Harvey then remained in five-point
restraints for a total of 22 hours while suffering in pain
6 hours into Harvey's time in five-point restraints, at
4:05 pm, Sgt. Collins entered the cell to let Harvey up for a
bathroom and dinner break. However, Sgt. Collins gave Harvey
an empty dinner bag and when Harvey told him it was empty,
Sgt. Collins threw the empty bag out of the cell. Harvey was
not provided dinner and was placed back in five-point
restraints by Sgt. Collins, Lt. Franklin, Gibson, and
Addington, despite not displaying “any intractable
behavior to warrant [such] action.” Am. Compl. ¶
31, Docket No. 61. Nurse Kelly returned to assess the
restraints again, but she ignored Harvey's complaints
that he was in pain and bleeding and she did not provide
remained in five-point restraints for approximately 6 more
hours until Sgt. Miller let him up for a second bathroom
break at 10:25 pm. Even though Harvey did not display
“any intractable behavior, ” Sgt. Miller
“sadistically” strapped him back down in the
five-point restraints. Id. ¶ 33. Nurse Wood
came to assess the restraints, and Harvey states that she
noticed the “extreme swelling and blood on [his] badly
abraded knees and legs” and told Harvey that on his
next break she would clean and dress the wounds. Id.
¶ 34. Harvey states that Sgt. Miller never let him up
for the remaining 8 hours of Sgt. Miller's shift, and
therefore Nurse Wood was not able to treat Harvey's
injuries as she had planned.
was released from five-point restraints about an hour after
Sgt. Miller's shift ended, at approximately 7:50 am on
March 19, 2015. Harvey alleges that “at no time”
did he “give these prison officials
justification” for placing or keeping him in the
five-point restraints. He states that he “never became
disruptive” and “never displayed any intractable
behavior.” During the nearly 22 hours that Harvey spent
in five-point restraints, he was left wearing only a pair of
boxers, not given a blanket, not given any food, and only
given two bathroom breaks. Upon his release from the
restraints, Harvey states that he was unable to stand or walk
on his own.
their motion for summary judgment, Defendants assert that on
March 18, 2015, at approximately 9:05 am, Harvey became
combative towards staff during his transport to the
restrictive housing unit. Franklin Aff. ¶ 5. Staff
attempted to talk to Harvey, but he cursed at them, and was
then escorted to the A-4 segregation pod. Id.
Defendants assert that Harvey continued to curse at
correctional officers, attempting to spit on them, and stated
“I'm not going to fucking seg!” Id.
After it appeared that Harvey had calmed down, Defendants
continued to escort Harvey but he then attempted to
“head butt” staff. Id. Officers placed
Harvey on the floor in a seated position until they could
gain control of him again, when he began yelling into the A-6
pod, “Come kill the CO's they are trying to fuck me
up!” Id. Defendants state that Harvey had
previously told one of the escorting officers that he was a
“blood gang member and that he would have other gang
members hurt [the officer].” Id. After Harvey
yelled out, inmates in the A-6 pod began to yell and call out
to other inmates. Id.
state they continued to escort Harvey to a cell in the A-4
pod and attempted to place a spit mask on him, however,
Harvey began a struggle with one of the officers and grabbed
an ink pen from the officer's uniform pocket and
attempted to stab the officer in the chest. Id. Once
staff regained control of Harvey, they placed him in
ambulatory restraints and kept him in the A-4 pod while they
determined his new housing status. Id. at ¶ 6.
Defendants Gibson, Woliver, Addington, Franklin, and Collins
then escorted Harvey to B Building, during which Defendants
allege that Harvey attempted to spit on officer Gibson.
Franklin Aff. ¶ 7; Addington Aff. ¶ 4. In response,
the officers placed Harvey on the ground and put a spit mask
on him. Franklin Aff. ¶ 4. While putting the spit mask
on Harvey, the officers state that none of them
“slammed Harvey into the ground.” Addington Aff.
¶ 5. The officers then continued to escort Harvey to B
Building, but because of Harvey's “erratic and
disruptive behavior, ” Lt. Franklin recommended that
the escorting officers place Harvey in five-point restraints.
Franklin Aff. ¶ 7. Assistant Warden Artrip approved
this, and Harvey was placed in five-point restraints without
Harvey was placed in five-point restraints, at approximately
10:20 am, Nurse Kelly checked on him and noted that she
“was able to pass two fingers under each wrist and
ankle restraint” and that Harvey's
“circulation was fine.” Kelly Aff. ¶ 2.
Nurse Kelly noted that the chest strap allowed Harvey to have
proper chest expansion, his blood pressure and pulse were
normal, and he did not have any bleeding or significant
injury other than the “2 cm by 2 cm superficial skin
abrasion to his right knee and laceration to his lower
lip” noted earlier when Harvey was placed in ambulatory
restraints. Id.; Mullins Aff. ¶ 2. Defendants
state that Harvey was offered bathroom breaks, meals and was
otherwise checked at 11:50 am, 4:05 pm, 7:54 pm, 8:35 pm,
10:15 pm, and 10:25 pm. Franklin Aff. ¶ 10, Encl. A. At
the 4:05 pm check, Defendants assert that Harvey was offered
a meal, as corroborated by prison surveillance video footage.
Defendants assert that even though Lt. Collins does not
recall Harvey individually, Lt. Collins “would not have
refused an offender meals.” Collins Aff. ¶ 4. At
the 7:54 pm check, Defendants allege that Harvey began
cursing and stated to staff to get him out of the restraints
and that they were going to pay. Franklin Aff. ¶ 11,
Encl. A. At the 8:35 pm check, Lt. Miller offered Harvey a
bathroom break, but Harvey refused. Miller Aff. ¶ 4. At
the 10:15 pm check, Lt. Miller again offered Harvey a
bathroom break, which Harvey accepted, and afterwards Harvey
was placed back in the restraints. Id. at ¶ 5.
night continued into March 19, 2015, Defendants state Harvey
was checked at 2:54 am, 3:09 am, 3:35 am, and 7:50 am. Miller
Aff. ¶ 5. At 2:54 am and 3:09 am, Harvey continued to
yell and curse at staff. Franklin Aff. ¶ 11, Encl. A.
Then, at the 3:28 am check, Harvey was offered a bathroom
break, which he refused. Miller Aff. ¶ 6. Defendants
state that because Harvey “continued to exhibit
disruptive behavior” throughout the night and into the
morning the next day, Harvey was not released from the
five-point restraints until approximately 7:50 am on March
19, 2015. Franklin Aff. ¶ 11, Encl. A. As a result of
his behavior, Harvey received six disciplinary charges.
Id. at ¶ 12. On March 19, 2015, after Harvey
was released from the five-point restraints, a nurse observed
Harvey had a “superficial scrape to the surface of his
left knee and a small abrasion on his right knee.”
Kelly Aff. ¶ 4. Defendants state that Harvey did not
request medical attention at that time, and his medical
records reflect that x-rays were taken of both knees on March
27, 2015, but that no injury appeared to have occurred.
Mullins Aff. ¶ 5.
Rule of Civil Procedure 56(a) provides that a court should
grant summary judgment “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” “As
to materiality, . . . [o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The dispute over a material fact must be genuine,
“such that a reasonable jury could return a verdict for
the nonmoving party.” Id.; see also JKC
Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d
459, 465 (4th Cir. 2001). As such, the moving party is
entitled to summary judgment if the evidence supporting a
genuine issue of material fact “is merely colorable or
is not significantly probative[.]” Anderson,
477 U.S. at 250.
moving party bears the burden of proving that judgment on the
pleadings is appropriate. Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). If the moving party meets this
burden, then the nonmoving party must set forth specific,
admissible facts to demonstrate a genuine issue of fact for
trial. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). In considering a motion
for summary judgment, the court must view the record as a
whole and draw all reasonable inferences in the light most
favorable to the nonmoving party. Celotex, 477 U.S.
at 322-324; Shaw v. Stroud, 13 F.3d 791, 798 (4th
Cir. 1994). However, the nonmoving party may not rely on
beliefs, conjecture, speculation, or conclusory allegations
to defeat a motion for summary judgment. Baber v. Hosp.
Corp. of Am., 977 F.2d 872, 874-75 ...