Thompson v. Clarke

          AMENDED MEMORANDUM OPINION

          NORMAN K. MOON, SENIOR UNITED STATES DISTRICT JUDGE

         Paul C. 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”).

         Presently pending are motions to dismiss (Docket Nos. 42 and 55) filed by the correctional defendants.^[1] For the reasons stated, I conclude that these motions must be granted in part and denied in part.

         I.

         A.

         Thompson 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^[2]; Count (3) is the denial of substantive and procedural due process and equal protection, in violation of the Fourteenth Amendment^[3]; Count (4) is state law assault^[4]; 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.

         B.^[5]

         River 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.)

         While 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. ¶ 137.)

         Thompson 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.)

         In 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.)

         On 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. ¶¶ 127-128.)

         Montgomery 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. ¶ 174.)

         On 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 used. (Id.)

         On 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.

         Thompson 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.

         On 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. ¶ 177.)

         On 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 status. (Id.)

         Thompson 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 ...