United States District Court, E.D. Virginia, Alexandria Division
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"). 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. 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. 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. Id. For
the reasons stated below, defendant Perry's motion for
summary judgment will be granted.
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. 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. Dkt. No. 31 ¶ 28.
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.
Accommodation and Meal Service Procedures
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. Id. at 9-10.
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." 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).
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.
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]
Standard of Review
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
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).