United States District Court, W.D. Virginia, Roanoke Division
ROBERT PHAROAH HOWARD, A.K.A., ABDUL-HAMZA WALI MUHAMMAD, Plaintiff,
D. STIDHAM, ET AL., Defendants.
GLEN E. CONRAD SENIOR UNITED STATES DISTRICT JUDGE
Pharoah Howard, also known as Abdul-Hamza Wali Muhammad, a
Virginia inmate proceeding pro se, filed this civil rights
action pursuant to 42 U.S.C. § 1983 Howard's
complaint alleges that various prison officials failed to
protect him from being attacked by another inmate or used
excessive force against him. After review of the record, the
court concludes that the defendants' dispositive motions
must be granted in part and denied in part.
Plaintiffs Evidence and Claims.
2017, Howard was confined at Red Onion State Prison
("Red Onion"), housed in a single
cell. On April 10, 2017, he and inmate Tanner
told Counselor Stallard and Unit Manager Swiney that they
were not compatible cell partners, and that Tanner was a
known murderer who was scared to be in a cell with a black
prisoner who was vulnerable to sexual assault, like Howard.
See Mot. Am. 2, ECF No. 10; Decl. Ex. 2-3, 5-6, ECF
No. 19-1. Nevertheless, Stallard "signed off on Howard
and Tanner occupying a double cell together-cell D-3 in the
general population area. Howard presents copies of offender
request forms he filed on April 10, 2017, addressed to
Assistant Warden Artrip, Swiney, and Stallard. These forms
complained that Howard and Tanner had been told that if they
did not agree to be cell partners, they would be returned to
long-term segregation; that they had asked not to be placed
in a cell together; that they had had verbal disputes; and
that Howard feared Tanner would try to harm him. Howard also
presents an offender request form warning these three
officers that he needed to be moved out of the cell with
Tanner or Tanner might kill him in his sleep.
4, 2017, Howard was downloading some music onto his music
device, when Tanner jumped on his back from behind, wrapped
his arms and legs around Howard, and stabbed him three times
in the neck. Officer D. Stidham in the control booth fired a
shot from the ".40 caliber launcher assault rifle,"
striking Howard in the "right inner thigh/calf muscle
area, causing a 4th stabbing attempt by" Tanner. Compl.
4, ECF No. 1. A floor officer had already sprayed Howard
twice in the face with "pepper spray."
Id.; Decl. 4, ECF No. 19. On Tanner's fifth
stabbing attempt, his knife broke. Howard took him to the
floor and managed to hold him off until officers contained
this incident, Howard received medical treatment for his
injuries and was placed in a disciplinary segregation cell.
He was charged with a disciplinary infraction for fighting.
The next day, after officers viewed the surveillance video
footage of Tanner's attack, Swiney dismissed the fighting
charge against Howard, who returned to his housing unit and
his prison job. Tanner received a disciplinary charge of
attempted murder. Tanner told Howard that Swiney had ordered
him to "kill that 'Nigger Muhammad he ain't
nothing but a child molesting baby raper.'" Compl.
5, ECF No. 1.
had "a 4 inch deep hole in [his] neck which was bleeding
also the deep laceration to [his] right inner thigh/calf
area." Id. The injury on Howard's leg
became infected. He was moved to the medical unit and treated
with antibiotics. The wound healed, but Howard has a
"permanent keloid for life" from the incident.
Id. at 7.
filed a grievance complaining that Stidham had violated
policy by shooting him in the leg when he was not the
aggressor in the altercation. Artrip found the grievance to
be unfounded, and in the second level appeal, Regional
Administrator Elam upheld that finding.
construing Howard's § 1983 complaint as amended, ECF
Nos. 1 and 10, he claims that: (1) Swiney and Stallard
assigned him to be Tanner's cellmate after being informed
that Tanner posed a danger to Howard, and Artrip and Elam
failed to fix this problem; (2) Stidham used excessive force
against Howard, and Swiney, Fannin, Artrip, and Elam
"conspir[ed] to interfere with" Howard's civil
rights through their use of force policies and inadequate
training and supervision; and (3) Fannin failed to conduct a
proper investigation. Compl. 8-10, ECF No. 1; Mot. Am. 1, ECF
No. 10. B. Defendants' Evidence.
April 2017, Howard and Tanner were ready to advance from
long-term segregated confinement to Phase II of the
segregation step down program at Red Onion. See Mem.
Supp. Mot. Summ. J. Ex. 3, Swiney Aff. ¶ 4, ECF No.
24-3. In Phase II, each offender is assigned to live in a
double cell with another offender. Id.
[T]o facilitate the process, on a case by case basis,
[Swiney] and other available staff, such as the assigned
counselor . . . bring each eligible offender into the pod
area to discuss the transition to a double cell. At this
time, the offender may suggest a cellmate. [Swiney]
consider[s] the offender's ideas and suggestions and
check[s] the compatibility of potential cellmates including
factors such as their age, height, weight, criminal offenses
and gang affiliations.
Id. Before Howard and Tanner were celled together,
Swiney and Stallard met with each of the inmates individually
on April 20, 2017. Swiney states, "Both Tanner and
Howard indicated that they had no problems with the other and
that they could live together in the same cell. Both
offenders signed [a] cell assignment agreement. ... At no
time, did Howard or Tanner state that they did not want to be
assigned to the same cell." Id. at ¶ 5.
Stallard states that he conducted a compatibility check on
the two inmates and found no conflicts. The cell assignment
agreement that Howard signed stated: "This is an
acknowledgement that I, Offender [Howard], feel I can live
with Offender [Tanner] and DO NOT fear for my life
being housed in the same cell with him in General
Population." Id. at Encl. A. Tanner signed a
similar agreement. Both the agreements were also signed by
Stallard and Swiney as witnesses, who deny that they
pressured or coerced the inmates to share a cell.
Swiney and Stallard had offices easily accessible to Howard
and Tanner during the two hours they spend outside their
general population cell each day for recreation and
programming. Both officers state that neither Howard nor
Tanner complained to them about the cellmate assignment or
indicated that the two inmates did not want to live together.