United States District Court, W.D. Virginia, Roanoke Division
PAUL C. THOMPSON, JR., Plaintiff,
H.W. CLARKE, et al., Defendants.
AMENDED MEMORANDUM OPINION
K. MOON, SENIOR UNITED STATES DISTRICT JUDGE
Thompson, Jr., an inmate proceeding in forma
pauperis and pro se, filed this action under
the Civil Rights Act, 42 U.S.C. § 1983, alleging various
infringements on his federal rights by numerous
administrative and correctional staff associated with the
Virginia Department of Corrections (“VDOC”) and
River North Correctional Center (“River North”).
pending are motions to dismiss (Docket Nos. 42 and 55) filed
by the correctional defendants. For the reasons stated, I
conclude that these motions must be granted in part and
denied in part.
alleges that the correctional defendants were involved in
various aspects of his incarceration at River North from
December 3, 2013, to March 26, 2015. Relevant to the
correctional defendants' motions to dismiss, Thompson
asserts the following claims: Count (1) is retaliation for
his past lawsuits and grievances against prison officials, in
violation of the First and Fourteenth
Amendments; Count (3) is the denial of substantive
and procedural due process and equal protection, in violation
of the Fourteenth Amendment; Count (4) is state law
assault; and Count (5) is for violations of the
Article I, Sections 9, 11, and 12 of the Virginia
Constitution. Thompson seeks damages and a transfer to the
Federal Bureau of Prisons as relief. Many aspects of
Thompson's claims rely on his litigation history,
specifically this case and three cases filed with the United
States District Court for the Eastern District of Virginia.
Thompson v. Dolan, No. 2:12cv209 (the “First
Case”), was docketed on April 18, 2012, the court sent
waivers of service of process on July 9, 2012, the case was
closed on September 23, 2015, but remains pending since
December 18, 2017, due to a remand in part in by Thompson
v. Commonwealth, 88 F.3d 89, 93 (4th Cir. 2017).
Thompson v. Clarke, No. 2:14cv86 (the “Second
Case”), was docketed on February 11, 2014, the court
sent waivers of service of process on April 8, 2014, and the
case was dismissed on March 9, 2017. Thompson v.
Clarke, No. 2:15cv439 (the “Third Case”),
was docketed on October 1, 2015, the court sent waivers of
service of process on April 29, 2016, and the case remains
pending. This case was docketed on January 9, 2017, and the
court sent waivers of service of process on March 14, 2017.
North “Building A “Unit Manager Doss placed
Thompson in the protective custody pod in September 2014
after other inmates attempted to extort him. (Compl.
¶¶ 135, 139.) Thompson had a security score of 42
points on his reclassification document upon admission to the
protective custody pod. (Id. ¶ 138.)
in the protective custody pod, Thompson would help other
inmates litigate claims against the Commonwealth of Virginia
and the VDOC. (Id. ¶ 136.) Although
Thompson's pod had its own computers, it did not have a
user manual for “Westlaw Premise 4.4, ” which was
available to inmates in general population. (Id.
was not given provision of cold weather clothing, like a
coat, as means to deny him outside recreation while he was in
segregation between November 17, 2014, and January 11, 2015.
(Id. ¶ 147.) Doss, C/O Shaffner, Wright, and
Parr responded to Thompson's administrative remedy
requests for the clothes. (Id.) Thompson believes
that Wright, Booker, Major Mullins, Lt. Miller, Lt. Evans,
and Lt. Whitt ordered subordinates to not provide cold
weather clothing as retaliation. (Id. ¶ 149.)
November 2014, Thompson filed a grievance about Doss
intentionally harassing and retaliating against him. (Compl.
¶ 138.) About a month later, Doss scored Thompson's
security classification tally with 42 points again but yet
recommended that Thompson be removed from protective custody
and his security score be increased to Level 5. (Id.
¶¶ 140-141.) Thompson believes Doss made the
changes, and Booker and Jones approved, as retaliation.
(Id. ¶ 141.)
November 17, 2014, Transportation Officer Rosenbaum drove
Thompson to a medical appointment at a hospital while
Transportation Officer Hash rode in the passenger seat.
(Id. ¶ 111.) Thompson argued with Rosenbaum
about him driving up to 85 miles per hour in inclement
weather. (Id. ¶ 120.) After the argument,
Rosenbaum drove the van even faster, causing Thompson to be
rendered unconscious after being thrown from the front cab to
the rear door of the van. (Id. ¶¶
124-125.) Thompson believes that Warden Wright, Assistant
Warden Booker, Montgomery, Rosenbaum, and Hash conspired to
cover up transport incident by destroying the video of the
transport and denying Thompson exhaustion of remedies on the
issue. (Id. ¶ 160.) Once the van returned to
River North, Lt. Montgomery refused to provide a wheelchair
and made Thompson walk, with an injured knee, 200 yards with
staff's assistance to the medical department. (Compl.
charged Thompson with a disciplinary infraction for allegedly
threatening Rosenbaum and his family on November 17, 2014.
(Id. ¶ 134.) On November 20, 2014, King served
as IHO and found Thompson guilty of the charge. (Id.
December 3, 2014, staff charged Thompson with a disciplinary
infraction for allegedly possessing razors, which are
contraband. (Id. ¶ 176.) Thompson blames
segregation staff for not collecting the razors after being
January 15, 2015, Thompson cut his left wrist with a razor
the correctional officers in segregation purportedly failed
to collect from him after his shower. (Id. ¶
157.) That same day, Thompson was placed on suicide watch,
and Booker, Lt. Evans, Lt. Whitt, Sgt. Jones, Sgt. Thompson,
and Doss withheld Thompson's legal materials until after
Thompson was transferred out of River North. (Id.
¶ 165.) Upon coming off of suicide watch, C/O Shaffner
and Sgt. Thompson did not return the legal materials removed
from the cell on January 15, 2015. (Compl. ¶ 166.)
Nonetheless, Thompson said he was “incapacitated”
throughout January and February 2015, even if he had access
to legal materials. (Id. ¶ 162.) Wright denied
Thompson access to medical records to review and make copies,
and Booker refused to inform the United States District Court
for the Eastern District of Virginia of Thompson's
suicide status. (Id. ¶¶ 159, 162.) Also,
Rhudy denied Thompson access to the institutional attorney
between September 2014 and February 2015. (Id.
¶ 169.) Thompson believes the withholding of these
materials, information, and access constitutes retaliation.
received a “212” disciplinary charge on February
6, 2015. (Id. ¶ 168.) Thereafter, King failed
to give Thompson credit for time spent in pre-hearing
segregation for a “212 disciplinary charge” as a
retaliatory act to delay Thompson's ability to access
personal property and legal materials. (Id.) During
that time, the First Case and Second Case were still pending.
March 3, 2015, Sgt. Thompson found more razors in
Thompson's cell, and Lt. Whitt charged Thompson again.
(Id. ¶ 177.) King found Thompson guilty.
Thompson again blames segregation staff for not collecting
the razors which were only to be used in the shower. (Compl.
March 18, 2015, King found Thompson guilty of delaying or
hindering an employee in the performance of duties because
Thompson had refused a haircut. (Id. ¶ 175.)
Major Mullins approved the conviction although Major Mullins
did not know Thompson was no longer on protective custody
and others in the protective custody unit were transferred to
Red Onion State Prison on March 26, 2015. (Id.
¶ 145.) On May 20, 2015, Thompson received his missing
legal materials ...