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Thompson v. Clarke

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

March 31, 2018

PAUL C. THOMPSON, JR., Plaintiff,
H. W. CLARKE, et al. Defendants.



         Paul C. Thompson, Jr., an inmate proceeding pro se, filed this action under the Civil Rights Act, 42 U.S.C. § 1983, alleging that employees of the Virginia Department of Corrections (“VDOC”) violated his constitutional and state law rights between November 2014 and March 26, 2015. Before me now is a motion for partial summary judgment (Docket No. 56) addressing Count (2) of Thompson's 100-page complaint, alleging deprivations of his Eighth Amendment rights.[1] After review of the record, I conclude that the motion must be granted except as to Thompson's claim against one supervisory officer for failure to protect him from self-harm.


         Thompson's § 1983 complaint sets out five “counts, ” each encompassing numerous claims arising from events that occurred in 2014 and 2015 while he was confined at River North Correctional Center (“River North”):[2] (1) retaliation for Thompson's past lawsuits and grievances against prison officials, in violation of the First and Fourteenth Amendments; (2) deliberate indifference to hazardous conditions or serious medical needs and excessive force, in violation of the Eighth Amendment; (3) denial of substantive and procedural due process and equal protection, in violation of the Fourteenth Amendment; (4) state law claims of assault; and (5) violations of Article 1, Sections 9, 11, and 12, of the Virginia Constitution.

         The movant defendants here are H.W. Clarke, VDOC Director; H. Ponton, VDOC Regional Administrator; J.E. Parks, VDOC Director of Offender Management Services (“OMS”); Keith Dawkins, an OMS supervisor; G. Jones, who worked in OMS; B. Wright, former Warden of River North; B. Booker, Assistant Warden; Major Mullins and Lt. Evans, supervisors; Doss, the Unit Manager in Building (A); Lt. Miller, Lt. Whitt, Lt. Colna (referred to in the complaint as Sgt. Coleman), and Correctional Officer (“C/O”) Shaffner, all of whom worked in Building (A); Sgt. Jones and Sgt. Thompson, supervisors in Building (A); C/O J. Rosenbaum and C/O A. Hash, transportation officers; and Lt. Montgomery, also involved in transportation. Their motion for partial summary judgment (Docket No. 56) addresses only Count (2), alleging these Eighth Amendment claims: (A) giving him a “rough ride” in a medical transport van on November 27, 2014, and refusing him a wheelchair afterward; (B) removal of Thompson from protective custody status on December 8, 2014; (C) subjecting Thompson to “psychological torture” from November 17, 2014 through March 26, 2015 by denying him a Westlaw user manual and cold weather clothing for outside recreation; (D) inadequately treating Thompson's low blood pressure condition; (E) allowing Thompson to possess a razor that he used to cut his wrist on January 15, 2015; (F)(i) forcibly extracting Thompson from his cell on January 15, 2015, and (ii) over-tightening his ambulatory wrist restraints; (G) placing Thompson on suicide precautions three times in 2015; and (H) delaying an aspiration treatment for Thompson's left knee.[3] (Compl. ¶ 208, Docket No. 1.)

         Thompson has responded in opposition to the defendants' motion for summary judgment as to these claims (Docket Nos. 108, 110, 111, 112, and 117). Thus, I conclude that these motions are ripe for decision. The facts relevant to each incident, I have summarized in the light most favorable to Thompson, unless otherwise noted.[4]


         A. Standard of Review

         I may grant summary judgment for the defendants if they “show[ ] that there is no genuine dispute as to any material fact and [they are] entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a) (emphasis added). To survive defendants' motion, Thompson must present “evidence that would support a jury verdict” in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

         In addressing the summary judgment arguments, I must hold Thompson's pro se complaint, “however inartfully pleaded” it may be, “to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).[5] I must also draw all reasonable inferences from the facts in favor of Thompson, as the nonmoving party. Williams v. Staples, Inc., 372 F.3d 662, 667 (4th Cir. 2004). However, Thompson “may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248. Mere groundless generalizations and unsupported speculations cannot create a genuine issue of fact and are thus insufficient to defeat a summary judgment motion. Baber v. Hosp. Corp. of Am., 977 F.2d 872, 875 (4th Cir. 1992).

         B. Time-barred Claims: Claim (2)(A)

         On November 17, 2014, C/O Rosenbaum drove Thompson to an appointment with a neurologist, and C/O Hash rode in the passenger seat. (Compl. ¶ 111, Docket No. 1.) The medical transport van had no seat belts or safety restraints. (Id. at ¶ 112.) Thompson was on a seat in the back of the van, in handcuffs, leg irons, and a “shock-belt attached around his chest under his clothes.” (Id. at ¶ 114.) During that trip, in snowy and rainy conditions, Thompson could see on the speedometer that Rosenbaum reached speeds of 63 miles per hour on the highway and speeds of 85 miles per hour on the interstate. (Id. at ¶ 116.) Thompson had “difficulty not being thrown around.” (Id. at ¶ 117.)

         At the hospital, Thompson confronted Rosenbaum about his driving, and they argued. (Id. at ¶ 20.) After the medical examination, Rosenbaum resumed driving “at a high rate of speed, really even more extrem[e] than that previously experienced.” (Id. at ¶ 124.) Thompson was “thrown from where he was seated next to the window of the front cab to the rear door of the van” and was “stunned and unconscious for a period of time.” (Id. at ¶ 125.) Thompson suffered injuries to his left knee, left chest, and left arm and hand. (Id. at ¶ 126.)

         Once the van arrived back at River North, Lt. Montgomery refused Thompson access to a wheel chair, requiring him to walk 200 yards with staff on each side of him with his arms over their shoulders. (Id. at ¶ 127.) Thompson was then treated by medical, and he later sought follow-up care for his injuries. (Id. at ¶ 128, 30.) Wright, Booker, Montgomery, Rosenbaum, and Hash conspired to cover up the November 17, 2014 transport incident by destroying the video footage from the transport. (Id. at ¶ 160.)

         The defendants argue that Thompson's claims concerning the van incident on November 17, 2014, were not timely filed under the applicable statutes of limitations. Thompson responds that the statutes' limitation periods should be tolled for various reasons. I find the defendants' arguments more persuasive and will grant their motion for summary judgment on as to the claims arising from the van incident.

         Federal law dictates that, for uniformity's sake, all § 1983 actions arising from events in Virginia are governed by its two-year, residual statute of limitations for all personal injury cases, Virginia Code Ann. § 8.01-243(a). See Owens v. Okure, 488 U.S. 235, 250 (1989) (finding that in states with multiple statutes of limitations for personal injury claims, “courts considering § 1983 claims should borrow the general or residual statute [of limitations] for personal injury actions”); Shelton v. Angelone, 148 F.Supp.2d 670, 677 (W.D. Va. 2001) (applying Owens standard to hold that Va. Code Ann. § 8.01-243(A) applies to prisoner § 1983 claims). Section 8.01-243(A) allows a litigant two years from the time his claim accrues to file that claim in court. A § 1983 claim accrues “when the plaintiff possesses sufficient facts about the harm done to him that reasonable inquiry will reveal his cause of action.” Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 955 (4th Cir. 1995).

         The van incident occurred on November 17, 2014. Because he knew immediately of the harm he had allegedly suffered from the rough ride and the denial of a wheel chair, his claims against Rosenbaum, Hash, and Lt. Montgomery accrued that day, and his statutory filing period began to run. Thompson filed his complaint in this court on or about January 1, 2017, [6] two years and six weeks after his claims accrued. Thus, these § 1983 claims about the van incident on November 17, 2014 are barred under Va. Code § 8.01-243(A), unless Thompson shows some basis for tolling of the statutory filing period.

         When a state's limitations period is used in a § 1983 action, the state's accompanying tolling rules must also be used under. Board of Regents v. Tomanio, 446 U.S. 478, 484 (1980). The Supreme Court of Virginia has held that “statutes of limitations are strictly enforced and exceptions thereto are narrowly construed. Consequently, a statute should be applied unless the General Assembly clearly creates an exception, and any doubt must be resolved in favor of the enforcement of the statute.” Arrington v. Peoples Sec. Life Ins. Co., 459 S.E.2d 289, 299 (Va. 1995).

         Thompson contends that the filing period under § 8.01-243(A) should be tolled during the time he spent exhausting his administrative remedies about the van incident, process he completed on January 5, 2015. (Compl. ¶ 40, Docket No. 1.) This argument lacks merit. Virginia law does not include a provision that allows for tolling of the statute of limitations while an inmate exhausts his administrative remedies. Wagner v. Barnette, No. 7:12cv441, 2014 U.S. Dist. LEXIS, at *14, 2014 WL 695388, at *4 (W.D. Va. Feb. 24, 2014).

         Thompson contends that his statutory filing period should be tolled under Va. Code § 8.01-229(A)(2)(b), because an Administrative Law Judge concluded he was “disabled” for purposes of Social Security Administration benefits and because he spent short periods on suicide precautions in January and March 2015. Section § 8.01-229(A)(2)(b) tolls the statute of limitations “[a]fter a cause of action accrues . . . (b) if a person entitled to bring such action becomes incapacitated, the time during which he is incapacitated shall not be computed as any part of the period within which the action must be brought” except in limited circumstances not applicable here. (Id.) “[A] person shall be deemed incapacitated if he is so adjudged by a court of competent jurisdiction, or if it shall otherwise appear to the court or jury determining the issue that such person is or was incapacitated within the prescribed limitations period.” § 8.01-229(A)(2)(b).

         In applying this section, courts have adopted the more specific definition of “incapacitated” in Va. Code § 37.2-1000 (now codified at § 64.2-2000):

“Incapacitated person” means an adult who has been found by a court to be incapable of receiving and evaluating information effectively and responding to people, events, or environments to such an extent that the individual lacks the capacity to (i) meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian or (ii) manage property or financial affairs or provide for his support or for the support of his legal dependents without the assistance or protection of a conservator. A finding that the individual displays poor judgment alone shall not be considered sufficient evidence that the individual is an incapacitated person within the meaning of this definition.

Calvert v. State Farm Fire & Cas. Co., No. 5:12cv17, 2012 U.S. Dist. LEXIS 94851, at *24, 2012 WL 2804838, at *9 (W.D. Va. July 10, 2012) (holding that plaintiff's depression, anxiety, physical ailments, ongoing medical and psychological treatment, prescription drug therapies, loss of employment and loss of ability to drive a car did not qualify her as “incapacitated” under § 8.01-229(A)(2)(b)); see also Kumar v. Glidden Co., No. 2:05-CV-499, 2006 LEXIS 18964, at *26, 2006 WL 1049174, at * 9 (E.D. Va. Apr. 13, 2006) (holding that plaintiff was not incapacitated for tolling purposes, because she was able to “conduct her own affairs, to work, and to raise her children, ” despite her listed medical and mental health issues, including panic disorders, bi-polar/manic depression, and impaired memory).

         Thompson's extensive litigation history in federal court while confined at River North in 2014 and 2015 shows that he was not so “disabled” or incapacitated that he could not litigate or pursue administrative remedies.[7] His grievance documents and other filings in this case also demonstrate that he could capably receive, evaluate, and communicate information and respond to people and events around him. As later discussed, suicide precautions at River North withhold all personal property items from the inmate, including pen and paper. Even if the statutory filing period were tolled during the periods when Thompson was on suicide precautions, for a total of two weeks, his complaint was still filed a month too late.

         Lastly, Thompson contends that equitable principles should operate to toll the statute of limitations because certain individuals allegedly obstructed his ability to file this action. See Va. Code § 8.01-229(D); Cruz v. Maypa, 773 F.3d 138, 145 (4th Cir. 2014). According to Thompson, “defendants” delayed returning his legal materials after suicide precautions ended. He also alleges that a “significant portion” of legal materials he possessed at River North took months to reach him after his transfer on March 26, 2015, to Red Onion State Prison. Thompson offers no explanation as to why the alleged withholding of his legal materials prevented him from filing his complaint about the rough ride and the denial of the wheel chair, using the simple form provided for inmates filing complaints under 42 U.S.C. § 1983. Filling out that form or otherwise making “(1) a short and plain statement of the grounds for the court's jurisdiction . . . (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought” requires no “legal materials.” Fed.R.Civ.P. 8(a). See Barnett v. Williams, 865 F.2d 1256 (4th Cir. 1988) (finding § 8.01-229(D) inapplicable where plaintiff's only claim was interference with access to legal materials before filing the complaint).

         For the reasons stated, I conclude that Thompson is barred under Va. Code § 8.01-243(A)(2) from pursing his Eighth Amendment claims concerning the van incident and wheel chair denial on November 17, 2014.[8] Accordingly, I will grant the defendants' motion for summary judgment on Count (2)(A).

         C. Excessive Force

         On the afternoon of January 14, 2015, a nurse was distributing medication to inmates assigned to Restrictive Housing (also known as the Segregation Unit), where Thompson was housed. (Defs.' Mem. Supp. Mot. Summ. J. Attach. 1, Colna Aff. ¶ 4, Docket No. 57-1.) When the nurse asked Thompson if he wanted his medications, he said he did. (Id. at ¶ 5.) The nurse gave him a cup to put water in and said she would only put crushed medication into the water so that he could take his medication. (Id. at ¶ 6.) Thompson reached out of the tray slot in his cell door, slapped the medication packet out of the nurse's hand, and threw the cup of water on her.[9](Id. at ¶ 7.) He was charged with a disciplinary offense for aggravated assault for slapping the nurse's hand. (Id. at ¶ 8.)

         The next morning, the same nurse asked Thompson if he wanted his medication, and he said that he did. (Id. at ¶ 9.) Once the nurse had placed his medications in the cup of water, Thompson threw the cup out of the tray slot, hitting the nurse and an officer. (Id. at ¶ 10.) He then threatened to kill the nurse and her entire family. (Id. at ¶ 11.) Officers then went to Thompson's cell and ordered him to “cuff up”[10] so that cups and other items could be removed from his cell, Thompson refused to obey the order to “cuff up.” (Id. at ¶ 12.)

         Later that same morning while performing their rounds, officers noticed that Thompson had placed what appeared to be papers over his window, blocking the view into his cell. (Id. at 13.) Lt. Colna went to Thompson's cell and repeatedly asked him to come to the cell door to be restrained and to remove the paper from the window, but Thompson did not comply. With prior medical staff approval, Lt. Colna administered a one-half to one second burst of oleoresin capsicum (“OC”) spray[11] through the tray slot in the cell door. Thompson still did not obey the order to “cuff up.”

         Lt. Colna then assembled a team to remove Thompson from his cell. (Id. at ¶ 14.) At approximately 11:32 a.m., Lt. Colna repeatedly asked Thompson to come to the cell door to “cuff up, ” but Thompson did not comply. At that time, there appeared to be blood on the papers covering Thompson's cell window. (Id. at ¶ 15.) Because it appeared that Thompson had injured himself, had blocked his window, and would not “cuff up, ” a decision was made to deploy the extraction team to prevent Thompson from continuing to hurt himself. (Id. at ¶ 35.) The video footage shows that as the cell door was opened remotely, a team member entered the cell, holding a plexiglass shield that he used to herd Thompson to the back wall of the cell and hold him there, while the other officers surrounded him and placed him in shackles and handcuffs. (Id. at ¶¶ 16-17; DVD: RNCC, Thompson, P, #1134145, Cell Extraction, Cell Restraints, January 15, 2015 (on file with the court), Docket No. 59.) Once inside Thompson's cell, Lt. Colna saw what appeared to be blood on the walls of the cell and on Thompson's bedding. (Id. at ¶ 19.)

         The Eighth Amendment prohibits prison officials from inflicting unnecessary and wanton pain and suffering on prisoners. Whitley v. Albers, 475 U.S. 312, 320 (1986). To resolve a claim that prison staff's excessive force violated the Eighth Amendment, the court must determine whether the force applied was “in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Id. at 320-21. Whether the force was necessary or intentionally aimed at inflicting unnecessary physical harm depends on factors such as the need for the application of force, the relationship between the need and the amount of force used, the extent of injury inflicted, the extent of the threat to the safety of staff and inmates reasonably perceived by responsible officials, and any efforts made to temper the severity of a forceful response. Id. at 321; see, e.g., Wilkins v. Gaddy, 559 U.S. 34 (2010).

         Thompson vaguely alleges that the defendants violated the Eighth Amendment by using excessive force in removing him from his cell. Thompson alleges no other facts concerning the extraction. Defendants submit a video of the extraction which shows them giving Thompson multiple directions to come to the door to “cuff up, ” all of which Thompson refuses. Thompson does not allege, and the video does not plainly demonstrate, that the defendants acted maliciously or sadistically for the purpose of causing harm during the cell extraction. With no evidence to the contrary, I conclude that the force used by the officers was done in a good faith effort to maintain or restore discipline due to Thompson's continued refusal to comply with orders. Accordingly, I will deny defendants' motion for summary judgment as to Thompson's excessive force claim against the defendants.

         D. ...

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