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Howard v. Stidham

United States District Court, W.D. Virginia, Roanoke Division

February 26, 2019

D. STIDHAM, ET AL., Defendants.



         Robert 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.

         I. Background

         A. Plaintiffs Evidence and Claims.

         In 2017, Howard was confined at Red Onion State Prison ("Red Onion"), housed in a single cell.[1] 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.

         On June 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 the situation.

         After 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.

         Howard 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.

         Howard 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.

         Liberally 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.

         In 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.

         Both 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. ...

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