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Jervis v. Perry

United States District Court, E.D. Virginia, Alexandria Division

July 2, 2018

Prince Nicholas Jervis, Plaintiff,
Captain Desaline Perry, Defendant.


         Prince Nicholas Jervis, a Virginia inmate proceeding pro se, has filed a civil rights action, pursuant to 42 U.S.C. § 1983, alleging that his constitutional rights were violated by Captain Desaline Perry at the Virginia Peninsula Regional Jail ("VPRJ").[1] By Orders dated June 2 and August 14, 2017, plaintiff was directed to particularize and amend his complaint. Plaintiff filed his second amended complaint on August 22, 2017; however, plaintiff failed to state a claim upon which relief can be granted with respect to several of his claims. By Order dated October 20, 2017, plaintiffs Eighth Amendment excessive force and deliberate indifference claims, as well as his Fourteenth Amendment claims concerning his placement in segregation and missing property, were dismissed pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim.[2] Plaintiffs Fourteenth Amendment claim relating to his modified diet was allowed to proceed against Captain Perry. Dkt. No. 22. Perry has filed a motion for summary judgment, as well as a memorandum of law with supporting exhibits. Dkt. Nos. 30-31. Plaintiff filed a response and Perry replied.[3] Dkt. Nos. 33-34. Plaintiff has also filed a pleading titled "My Statement of My Claim," which was docketed as a motion to Amend/Correct; however, a majority of this pleading is devoted to refuting the arguments made by Perry in her reply. Dkt. No. 35. Accordingly, plaintiffs motion to Amend/Correction, which, in substance, appears to be a response to Perry's rebuttal brief, will be construed as a Motion to File a Surrreply, which will be granted, as well as a surreply.[4] Id. For the reasons stated below, defendant Perry's motion for summary judgment will be granted.

         I. Background

         Plaintiff is currently an inmate at the VPRJ, where he was initially booked on May 2, 2016, released to Central State Hospital on July 20, 2017, and rebooked on August 30, 2017. Dkt. Nos. 31 ¶ 2; 32-2. From September 2016 through September 2017, plaintiff was assigned to a Rastafarian diet and a diabetic vegetarian diet. Dkt. Nos. 31 ¶ 18; 31-6 at 1-2. From May through July 2017, plaintiff was housed in the Special Housing United ("SHU") for disciplinary reasons. Dkt. No. 31 ¶ 19. During that time, "plaintiff began throwing excrement and other substances through his tray slot when officers approached his cell to deliver or retrieve a meal tray." Id. Several officers complained to Capt. Perry about plaintiffs behavior. Id. In addition, Capt. Perry observed plaintiff throwing "feces, and other substances out of his tray slot on a surveillance video." Dkt. Nos. 31 ¶ 21; 31-1 ¶ 15; 31-7. In mid to late June 2017, Capt. Perry contacted Maj. Eaves, explained that plaintiff had been throwing excrement and other substances at jail staff during mealtime, and requested approval to place plaintiff on a nutraloaf diet. Dkt. No. 31-1 ¶ 19. Maj. Eaves granted Capt. Perry's request.[5] Id.; see also Dkt. No. 31-7. Capt. Perry also contacted Nurse Randall in the Jail's medical department to request approval to place plaintiff on a nutraloaf diet, and she granted the request. Dkt. No. 31 ¶ 27. Finally, Capt. Perry contacted Capt. Moore, who supervised the jail's kitchen, and requested approval to place plaintiff on a nutraloaf diet; Capt. Moore approved that request.[6] Dkt. No. 31 ¶ 28.

         On or about June 30, 2017, Capt. Perry drafted a memorandum to Maj. Eaves, confirming that, pursuant to VPRJ Policy No. 3.4.1, plaintiff would receive a nutraloaf diet from June 30, 2017, until dinner on July 7, 2017, to control his disruptive behavior of throwing feces and placing urine and feces on his meal trays. Dkt. Nos. 31-1 ¶ 22; 31- 7. On June 30, 2017, Capt. Perry emailed a copy of her memorandum to several jail employees, and plaintiff began receiving nutraloaf meals that day. Dkt. No. 31-1 ¶ 23. On June 30, and July 1, 2017, plaintiff was served, and took, breakfast, lunch, and dinner; however, he refused all three meals from July 2, through July 6, 2017. Dkt. Nos. 31 ¶ 31; 31-8. In addition, on July 4, 2017, plaintiff refused food offered to him by VPRJ medical staff while they took his vital signs, but he agreed to eat a sandwich, chips, and apple provided to him by medical staff on July 5, 2017. Dkt. Nos. 31 ¶ 32; 31-6. On July 7, 2017, plaintiff refused breakfast and lunch, but received his regular Rastafarian-vegetarian meal for dinner because his nutraloaf diet had been terminated. Dkt. Nos. 31 ¶ 31;31-8.

         Dietary Accommodation and Meal Service Procedures

         VPRJ inmates may be assigned special diets for religious or medical reasons. Dkt. No. 31-5 at 2, 8-10. To receive a religiously based dietary accommodation, an inmate must submit an Inmate Request Form, describing his or her religious affiliation and any corresponding dietary needs. Id. at 9. Written requests are reviewed by the chaplain and approved by the director of support services. Id. An inmate may stop receiving a religious diet if jail staff observes him deviating from his dietary restrictions. Id. Medically based special diets must be prescribed by a physician or dentist. Id. at 8. Inmates may be removed from a special medical diet if the approving physician or dentist determines that it is no longer necessary.[7] Id. at 9-10.

         Unlike general population inmates, inmates housed in VPRJ's SHU for disciplinary reasons receive meals in their cells: on-duty officers provide a tray to inmates through a tray slot in each cell door, and the officers return to retrieve empty trays, which inmates are instructed to place outside their cells using the tray slot. Dkt. Nos. 31 ¶ 20; 31-5 at 3, 6-7. Inmates in the SHU generally receive the same meals as inmates housed in general population; however, SHU inmates can be placed on a special diet, such as a nutraloaf or other meal substitute, "if they engage in behavior that disrupts food service or other Jail operations." Dkt. Nos. 31 ¶ 22; 31-5 at 3, 6 -7. Pursuant to unwritten policies in effect during Capt. Perry's tenure, she, as the assistant director of security, could "submit a request to her supervisor (the head of security, Maj. Eaves), the medical department, and the kitchen to change an inmate's diet to a nutraloaf diet if the inmate's behavior significantly disrupted food service or other operations of the [j]ail."[8] Dkt. No. 31-1 ¶ 16. In addition, Capt. Perry's subordinates could ask her to submit such a request if they observed an inmate engage in disruptive behavior, and she would submit the request to the appropriate staff members. Id.; see also Dkt. No. 31- 5 at 7 (permitting the superintendent and director of security to establish additional security requirements governing food service in the SHU).

         To prepare nutraloaves, the kitchen staff uses a recipe provided by the Virginia Department of Corrections, which ensures that each loaf contains the necessary nutrients and requisite amount of calories; in other words, a nutraloaf is not the equivalent of a loaf of bread. Dkt. Nos. 31-1 ¶ 17; 31-5 at 3. Pursuant to VPRJ policy, inmates may receive nutraloaves at every meal for up to seven consecutive days; nevertheless, those assigned to a nutraloaf diet are generally removed from the diet once the jail staff believes that they will no longer engage in the disruptive conduct that necessitated the change. Dkt. Nos. 31 -1 ¶ 18; 31 -5 at 6. According to Perry, special diets are not a form of punishment, but instead, are used to restore order to the Jail. Dkt. Nos. 31 ¶ 22; 31-5 at 3, 6 -7.

         Plaintiffs Remaining Claim

         Plaintiff alleges that his diet "is limited starch and they was [sic] given [sic] [him] starch three times a day," which he "did eat" but then he started "to feel a lot of pain in [his] stomuck [sic]." Dkt. No. 11 § IV. According to plaintiff, "when [he] was on hunger strike, it was Captain Perry's orders that [he] must get a looft [sic] of Bread." Id. Plaintiff further alleges that "Captain Perry gives [sic] order that [he] must get a looft [sic] of bread every meal, [and] she never say [sic] when it should stop. She violated [his] rights." Id.

         II. Standard of Review

         Summary judgment is appropriate only when there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "[T]he substantive law will identify which facts are material[, ]" and a "genuine" dispute of material fact will be found only when "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). The moving party bears the burden of proof for all relevant issues and must demonstrate that judgment on the pleadings is appropriate. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

         Once a moving party has met its burden, the non-moving party must produce specific facts to generate a disputed issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); see Bell v. Kolongo, No. 1:03CV501 (GBL), 2004 WL 3247156, at *7 (E.D. Va. Oct. 25, 2004) (quoting Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1316 (4th Cir. 1993)) ("In a 'summary judgment inquiry[, the Court] scrutinizes the plaintiffs case to determine whether the plaintiff has proffered sufficient proof, in the form of admissible evidence, that could carry the burden of proof of his claim at trial.'"), affd, 120 Fed.Appx. 985 (4th Cir. 2005). "Only disputes over facts which might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Unsubstantiated, conclusory claims without evidentiary support are insufficient to defeat a summary judgment motion. Braithwaite v. Hinkle, 752 F.Supp.2d 692, 694 (E.D. Va. 2010), aff'd, 412 Fed.Appx. 583 (4th Cir. 2011). In other words, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson; 477 U.S. at 249-50 (internal citations omitted). The court will view the evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Porter v. U.S. Alumoweld Co., 125 F.3d 243, 245 (4th Cir. 1997).

         III. ...

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