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Harvey v. Large

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

March 16, 2018

T. LARGE, et al., Defendants.



         Terrence 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 Addington[1]violated 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.[2]


         Harvey 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.[3] 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[4] 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 and bleeding.

         Approximately 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 medical treatment.

         Harvey 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.

         Harvey 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.

         In 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.

         Defendants 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 incident. Id.

         After 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.

         As the 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.


         Federal 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.

         The 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 ...

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