United States District Court, W.D. Virginia, Roanoke Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE
Alexander, a Virginia inmate proceeding pro se,
filed this civil rights action pursuant to 42 U.S.C. §
1983. The matter before the court is the motion
for summary judgment filed by the non-medical
defendants (collectively “Defendants”). I
will grant in part and deny in part the motion for the
reasons that follow.
April 15, 2017, Alexander assaulted Corrections Officer
(“C/O”) Maloney in A-6 pod at Red Onion State
Prison because Alexander did not agree with the timing of his
recreation and shower breaks. See Maloney Aff.
¶ 3-4, Dkt. No. 45-6; Maloney Assault Video,
4:45-4:55. While retreating from Alexander's punches,
Maloney accidentally dropped his handcuffs and Alexander
picked them up. Maloney Assault Video, at 4:54. Maloney
ordered Alexander to stop, drop the handcuffs, and get on the
floor. Alexander refused to comply and ran back to his cell.
Maloney Aff. ¶ 4; Maloney Assault Video, at 4:56.
Maloney chased Alexander and fired at least one burst of OC
spray in Alexander's direction. Maloney Aff. ¶ 4;
Maloney Assault Video, at 4:57. When Maloney arrived in front
of the open cell-door, he stood on the catwalk and held the
oleoresin capsicum (“OC”) spray canister toward
the inside of the cell. Maloney Assault Video, at 5:01.
Moments later, the cell door was secured with Alexander in
his cell, Maloney stepped away, and backup officers arrived.
Id. at 5:12. Responding officers included:
Defendants Warden Kiser, Adams, Gibson, Messer, Mullins,
Bryant, Parks, and Phipps. Br. in Supp. of Defs.' Mot.
for Summ. J. 4, Dkt. No. 45; Maloney Assault Video, at
Gibson is a K-9 Officer. Upon arrival at A-6 pod, Gibson and
his canine, “Evil, ” stood on the catwalk
directly outside Alexander's cell. Maloney Assault Video,
at 5:50-6:50. C/Os Phipps and Mullins ordered Alexander to
lay on the ground in his cell. Br. in Supp. of Defs.'
Mot. for Summ. J. 5, Dkt. No. 45. When Alexander complied,
the cell door was opened, Alexander crawled out, and Phipps
and Mullins restrained Alexander. Id.; Maloney
Assault Video, at 6:18. Gibson and Evil backed up and stood
near Alexander until Phipps and Mullins took Alexander away.
Maloney Assault Video, at 10:11:55-10:12:52. After officers
restrained Alexander, Sgt. Hill escorted Maloney to the
medical department. Maloney Aff. ¶ 4; Maloney Assault
Video, at 7:20-7:40. Neither Gibson nor Evil physically
Kiser also responded to the call for assistance. Kiser Aff.
¶ 4, Dkt. No. 45-5. Alexander alleges that Warden Kiser
failed to intervene when his officers violated his rights and
told his officers to “fuck [Alexander] up on the way to
B-Building and teach him a lesson.” Compl. 12. Warden
Kiser disputes Alexander's account, stating that he had
no participation in the restraint process or escort, he did
not see anyone choke Alexander, and he did not tell his
officers to “fuck him up.” Kiser Aff.
¶¶ 4-5. After Alexander had been restrained in the
A-6 pod, Warden Kiser went to the medical department to check
on Maloney. Id. at ¶ 4.
Phipps, Mullins, and Parks then began escorting Alexander
from A-Building to a segregation cell in B-Building, while
Lt. Messer supervised. Maloney Assault Video, at 10:15:24-37;
A-Building Vestibule Video,  10:15:45; A-Building Entrance
& Vestibule REM Video,  at 0:18-0:25. Defendants allege
that Alexander refused their offer to take Alexander to
shower off any residual OC spray; meanwhile, Alexander
asserts that Defendants refused to take him a
shower. Messer Aff. ¶ 5, Dkt. No. 45-7;
on the boulevard between A-Building and B-Building,
Defendants allege that they placed Alexander on the ground to
regain control after Alexander attempted to pull away. Br. in
Supp. of Defs.' Mot. for Summ. J. 5. Defendants assert
that Alexander refused orders to cease being disruptive and
kicked Parks twice in the abdominal area. Id. at 6.
Messer then assisted Parks in controlling Alexander's
legs, while C/O Gentry, who had joined the other officers
during the disturbance, applied leg restraints. Messer Aff.
¶ 5; Front Walkway Video,  at 10:14:34. The officers lifted
Alexander to his feet and brought him to cell 407 in
B-Building without further incident. Front Walkway Video, at
2:50-3:20; B-Building Entrance Video,  at 0:24-043; Rear
B-400 Video,  at 0:50-1:20.
Mullins, and Parks forced Alexander to the floor in front of
the cell. Br. in Supp. of Defs.' Mot. for Summ. J. 6;
Rear B-400 Video, at 3:58-4:00; First Handheld Video April
15, at 1:00-1:30. While officers held him
down, Alexander became combative and Defendants allege
that he attempted to break away. Br. in Supp. of Defs.'
Mot. for Summ. J. 6; Rear B-400 Video, at 3:58-4:00. While
waiting for the nurse, Adams, Phipps, and Parks held
Alexander as Messer and Sgt. Bryant applied ambulatory
restraints. Rear B-400 Video, at 10:18:55-10:26:35.
Nurse Stump arrived, she evaluated Alexander, checking the
tightness of his restraints, his vital signs, and his
injuries. First, Nurse Stump was able to place two fingers
under Alexander's wrist and ankle restraints. Second
Handheld Video April 15,  at 16:32. Second, although
Alexander told Stump that he had been slammed twice and that
he was bleeding everywhere, Nurse Stump determined that
Alexander had abrasions and redness that resembled rug burn,
but did not observe any active bleeding. Id. at
following morning, officers removed the ambulatory
restraints. Stump asked Alexander if he required medical
attention, and Alexander responded affirmatively, complaining
about his hand. Handheld Video April 16,  at 1:45-1:55.
Stump observed that the hand appeared swollen and advised
Alexander to keep the hand elevated as much as possible until
he could be seen by a doctor. Id. at 4:45. Stump
inquired if Alexander had any other issues, and Alexander
responded that he did not. Id. at 5:30. Stump gave
Alexander some Tylenol and placed him on the schedule to be
seen by the institutional physician. Id. at 6:04;
Stump Aff. ¶ 16, Dkt. No. 44-1.
did not complain on April 16, 2017 about any injuries related
to OC spray, his restraints being too tight, the skin being
ripped from his legs, face, torso, or arms, swelling of his
eye socket, a knot on his head, his testicles, or his
fingers. An x-ray of Alexander's right hand on June 2,
2017 showed no evidence of acute fracture, dislocation, or
osseous lesion. Patient Reports (June 2, 2017), Dkt. No.
in his response to the motions for summary judgment,
Alexander asserts that the videotapes were tampered with and
that officers intimidated Nurse Stump into lying. Nurse Stump
denies both allegations.
alleges the following claims:
1. Maloney used excessive force against Alexander when he
spit in Alexander's face, threatened Alexander, and
sprayed OC spray on Alexander and Alexander's cellmate
when neither inmate was a threat.
2. Gibson used excessive force and retaliated against
Alexander when he kicked and assaulted Alexander after
Alexander had been fully restrained in handcuffs and leg
shackles. Gibson caused Alexander pain, suffering, physical
injury, and emotional distress.
3. Mullins used excessive force when he choked, kicked,
punched, slammed, scratched, elbowed, and kneed Alexander in
the groin after Alexander was fully restrained in handcuffs
and leg restraints. Mullins caused Alexander pain, suffering,
physical injury, and emotional distress.
4. Phipps used excessive force and retaliated against
Alexander when he punched, kneed, stomped, and slammed
Alexander after Alexander had been fully restrained in
handcuffs and leg restraints. Phipps caused pain, suffering,
physical injury, and emotional distress.
5. Messer used excessive force and retaliated against
Alexander when he punched, kicked, slammed, and assaulted
Alexander and encouraged Gibson, Mullins, Parks, and Phipps
to use excessive force against Alexander after Alexander had
been fully restrained by handcuffs and leg restraints. Messer
caused pain, suffering, physical injury, and emotional
6. Parks used excessive force and retaliated against
Alexander when he punched, slammed, kicked, kneed, elbowed,
choked, scratched, and headbutted Alexander in the groin
after Alexander was already fully restrained by handcuffs and
leg restraints. Parks caused serious pain, suffering,
physical injury, and emotional distress.
7. Adams used excessive force and retaliated against
Alexander when he punched, slammed, kicked, and stomped
Alexander, and encouraged Parks, Gibson, Phipps, Mullins, and
Messer to use excessive force against Alexander after
Alexander had been fully restrained.
8. Unit Manager (“Mgr.”) Younce was deliberately
indifferent to, failed to correct, and/or encouraged the
unconstitutional conduct of Maloney, Gibson, Parks, Phipps,
Mullins, Messer, and Adams. Mgr. Younce caused Alexander
pain, suffering, physical injury, and serious emotional
9. Warden Kiser was deliberately indifferent to the
unconstitutional conduct of his employees because he had
knowledge of the officers' actions against Alexander and
encouraged continued misconduct after April 15, 2017.
10. Mgr. Younce and Sgt. Bryant were deliberately indifferent
when they refused to retrieve Alexander's personal
property or allow him to shower in a timely manner.
11. Mgr. Younce was deliberately indifferent when he refused
Alexander outside recreation for forty-five days.
12. Mgr. Younce, Adams, and Messer were deliberately
indifferent when they failed to take pictures of
Alexander's bodily injuries after the April 15, 2017
incident. Their failure caused Alexander serious pain,
suffering, physical injury, and emotional distress.
13. Gibson, Mullins, Parks, Phipps, Messer, and Adams were
deliberately indifferent to his serious medical needs when
they told Nurse Stump not to treat Alexander.
14. John Doe used excessive force and retaliated against
Alexander when he squeezed Alexander's testicles until
Alexander “could no longer be aware of his
surroundings” after Alexander was fully restrained.
relief, Alexander seeks a declaration that Defendants'
conduct was unconstitutional, court costs, damages, the
overturning of institutional disciplinary convictions, good
time credit restoration, transfer out of the Western District
of Virginia permanently to Maryland, Boston, Carolina, or
Washington, D.C., a written apology from all defendants, and
to have his medical fees and infraction fines paid for.
Standards of Review
Rule of Civil Procedure 56(a) provides that a court should
grant summary judgment “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” “As
to materiality, . . . [o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The dispute over a material fact must be genuine,
“such that a reasonable jury could return a verdict for
the nonmoving party.” Id.; see also JKC
Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d
459, 465 (4th Cir. 2001). As such, the moving party is
entitled to summary judgment if the evidence supporting a
genuine issue of material fact “is merely colorable or
is not significantly probative.” Anderson, 477
U.S. at 250.
moving party bears the burden of proving that judgment on the
pleadings is appropriate. Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). If the moving party meets this
burden, then the nonmoving party must set forth specific,
admissible facts to demonstrate a genuine issue of fact for
trial. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). In considering a motion
for summary judgment, the court must view the record as a
whole and draw all reasonable inferences in the light most
favorable to the nonmoving party. Celotex, 477 U.S.
at 322-324; Shaw v. Stroud, 13 F.3d 791, 798 (4th
Cir. 1994). However, the nonmoving party may not rely on
beliefs, conjecture, speculation, or conclusory allegations
to defeat a motion for summary judgment. Baber v. Hosp.
Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992). The
evidence set forth must meet the “substantive
evidentiary standard of proof that would apply at a trial on
the merits.” Mitchell v. Data Gen. Corp., 12
F.3d 1310, 1315-16 (4th Cir. 1993).
Pro Se Pleadings
is proceeding pro se and, thus, entitled to a
liberal construction of the pleading. See, e.g.,
Erickson v. Pardus, 551 U.S. 89, 90-95 (2007).
However, “principles requiring generous construction of
pro se complaints are not . . . without
limits.” Beaudett v. City of Hampton, 775 F.2d
1274, 1278 (4th Cir. 1985). The Fourth Circuit has explained
that “though pro se litigants cannot, of
course, be expected to frame legal issues with the clarity
and precision ideally evident in the work of those trained in
law, neither can district courts be required to conjure up
and decide issues never fairly presented to them.”
Id. at 1276. “A court considering a motion
[for summary judgment] can choose to begin by identifying
pleadings that, because they are no more than conclusions,
are not entitled to the assumption of truth.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).