United States District Court, W.D. Virginia, Roanoke Division
E. Conrad Senior United States District Judge
Snodgrass, Jr., a Virginia inmate proceeding pro se, filed
this civil rights action pursuant to 42 U.S.C. § 1983,
raising many claims, including due process and retaliation,
related to his segregated confinement. The court granted
defendants' motion for summary judgment as to all of his
claims except one. See Snodgrass v. Gilbert, No.
7:16CV00091, 2017 WL 1049582 (W.D. Va. Mar. 17, 2017). The
remaining claim alleges that a group of defendants conspired
to delay Snodgrass' progress through the segregation
step-down program in retaliation for his offering testimony
in Inmate Blount's lawsuit and for pursuing his own
lawsuits against prison officials. The defendants to this
claim are Christopher Gilbert, Reanne Kegley, Amee Duncan,
Tori Raiford, Walter Swiney, Garry Adams, E.R. Barksdale,
John Hamilton, Gerald Washington, David A. Still, A.
Gallihar, Henry Ponton, and Kelly M. Stewart. There being no
demand for a jury trial, the court referred the matter to
U.S. Magistrate Judge Pamela Meade Sargent, pursuant to 28
U.S.C. § 636(b), for appropriate proceedings.
Sargent conducted a court proceeding on August 23 and 24,
2017, in which she heard testimony from the parties'
witnesses and viewed their evidence. The case is presently
before the court on Judge Sargent's report and
recommendation ("the report"), recommending
judgment for the defendants, and Snodgrass' objections
magistrate judge makes only a recommendation to this court.
Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The
court is charged with making "a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made." 28 U.S.C. § 636(b)(1). Although the district
court may give a magistrate judge's proposed findings and
recommendations "such weight as [their] merit commands
and the sound discretion of the judge warrants, " the
authority and the responsibility to make an informed final
determination remains with the district judge. United
States v. Raddatz, 447 U.S. 667, 682-83 (1980) (internal
quotation marks and citation omitted). Therefore, in
performing a de novo review, the district judge must
exercise "his non-delegable authority by considering the
actual testimony, and not merely by reviewing the
magistrate's report and recommendations." Wimmer
v. Cook, 774 F.2d 68, 76 (4th Cir. 1985).
objects to the report's omission of particular testimony
and documentation and its failure to interpret the evidence
as proof of his asserted claims against the
defendants. In light of these objections, the court
has specifically reviewed each item of evidence that
Snodgrass has highlighted. The court also conducted de
novo review of the hearing transcripts and exhibits
and the report. From this review, the court concludes that
the weight of the evidence fully supports the material
factual findings and the legal conclusions of the report.
to the evidence at trial, the Virginia Department of
Corrections ("VDOC") adjusts an inmate's
security classification using a combination of concrete
criteria about an inmate's criminal and prison
disciplinary records and evaluators' subjective judgments
about the tendencies and thinking patterns reflected by that
inmate's day-to-day behavior. This case covers a period
beginning in September 2015, when Snodgrass (a Level 6 inmate
at that time) was placed back in long-term segregation
("Level S") for the third time in one year.
return to Level 6, Snodgrass then had to progress through the
Segregation Reduction Step-Down Program
("step-down") program, as outlined in Operating
Procedure ("OP") 830.A. See Pl.'s Ex.,
at 2, ECF No. 75-12. After reclassification procedures,
Snodgrass was assigned to the lowest step of the
program's three-step Special Management ("SM")
Pathway-SM-0. The policy required him to remain infraction
free for at least 90 days, complete the assigned
Challenge Series workbooks, and demonstrate personal
responsibility, including respect, hygiene, and cell
compliance, to progress from SM-0 to SM-1; and then from SM-1
to SM-2. Snodgrass progressed to SM-1 in February 2016 and to
SM-2 in September 2016. He then received an infraction for
lying, returned to SM-1, and then moved back to SM-2 in March
claimed that the defendants, working together, intentionally
delayed his progress through the step-down program during
2015 and 2016 to retaliate against him for his past and
present litigation efforts against prison officials. In
February 2015, he filed Snodgrass v. Day, No.
7.-15CV00075 (W.D. Va. May 28, 2015) (dismissed before
service on defendants for failure to state a claim). In
November 2015, he testified by video as a witness for Inmate
Blount's civil action. In February 2016, Snodgrass filed
Snodgrass v. Messer, No. 7:16CV00050 (W.D. Va. Mar.
10, 2017) (motion to dismiss granted under Fed.R.Civ.P.
12(b)(6)), affd, No. 17-6360 (4th Cir. 2017), cert
denied. No. 17-635 (Mar. 5, 2018). In March 2016,
Snodgrass filed the action currently before the court.
state a colorable retaliation claim under Section 1983, a
plaintiff "must allege that (1) he engaged in protected
First Amendment activity, (2) the defendant took some action
that adversely affected his First Amendment rights, and (3)
there was a causal relationship between his protected
activity and the defendant's conduct." Martin v.
Duffy, 858 F.3d 239, 249 (4th Cir. 2017), cert
denied, 138 S.Ct. 738 (2018). The plaintiff must
plead sufficient facts to show that the allegedly retaliatory
act "was taken in response to the exercise of a
constitutionally protected right." Adams v.
Rice, 40 F.3d 72, 75 (4th Cir. 1994).
report finds that Snodgrass presented evidence of exercising
his First Amendment rights-by testifying for Inmate Blount
and by filing his own lawsuits. The report also finds that
Snodgrass and his witnesses presented some evidence that
defendants made comments about his litigation activities that
vaguely suggested some relationship between those activities
and his segregation status. In addition, the report found
that VDOC policies and procedures were not always followed,
and reports were sometimes factually or procedurally
inaccurate, requiring corrective actions after Snodgrass
complained. The report states, however:
Despite this evidence, I am not persuaded that any of the
delays in Snodgrass's progression through the step-down
program were caused by actions taken by the defendants in an
effort to retaliate against Snodgrass for exercising his
right to access the courts. To the contrary, I am persuaded
that when Snodgrass has encountered a delay, the delay was
based on his own actions or his own failure to progress
through the program.
Report 33, ECF No. 80.
review of the evidence, the court is similarly persuaded that
officials' professional, subjective assessments of
Snodgrass' overall behavior, based on more than his
disciplinary infractions, slowed his advancement out of
segregation. For example, he was moved from Level 6 and
placed back into segregation on September 21, after officers
found homemade intoxicants in his cell, and he then refused
to comply with cuffing procedures for removal from the cell.
Snodgrass does not deny this behavior. Evaluators could
rightfully consider it, among other things documented or not,
in determining whether long-term segregation was an
appropriate assignment for Snodgrass that fall. Several
witnesses also testified that Snodgrass received poor ratings
for respect over the next several months, a facet of the
subjective component of the step-down procedure.
addition, the court is persuaded from the evidence that some
delays in Snodgrass' advancement were caused by other
factors-such as the time needed to schedule administrative
actions after his placement back in segregation in September
2015; or the unexplained administrative oversight by
officials, other than the defendants, who were responsible
for promptly providing Snodgrass with the workbooks or class
sessions he needed. While such administrative delays were no
doubt frustrating to Snodgrass, the court finds ...