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Agee v. Kiser

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

March 18, 2019

JEFF KISER, et al., Defendants.



         Plaintiff Jonathan Ashley Agee, a Virginia inmate proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging that several defendant prison officials violated his federal constitutional rights. (Dkt. 1). The matter is before the court on Defendants' motion for summary judgment (dkt. 38), and Plaintiff's motion for preliminary injunction (dkt. 43). For the reasons that follow, I will grant Defendants' motion and deny Plaintiff's motion.

         I. Legal Standards

         A. Motion for Summary Judgment

         Federal 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.

         “The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact, ” Appalachian Power Co. v. Arthur, 39 F.Supp.3d 790, 796 (W.D. Va. 2014), by “pointing out to the district court . . . an absence of evidence to support the nonmoving party's case, ” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party makes that showing, the nonmoving party must then set forth specific, admissible facts in evidence to demonstrate a genuine dispute of fact for trial. See Fed. R. Civ. P. 56(c), (e); Scott v. Harris, 550 U.S. 372, 380 (2007); 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.[1]Celotex, 477 U.S. at 322-24; 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).

         B. Motion for Preliminary Injunction

         Preliminary injunctive relief is an extraordinary remedy that courts should apply sparingly. See Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir. 1991). As a preliminary injunction temporarily affords an extraordinary remedy prior to trial that can be granted permanently after trial, the party seeking a preliminary injunction must demonstrate: (1) by a “clear showing, ” that he is likely to succeed on the merits at trial; (2) that he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20-22 (2008).

         II. Background

         Agee is a former deputy sheriff. (Dkt. 1, at 4). In 2013, he was convicted of first-degree murder and sentenced to a term of life imprisonment within the Virginia Department of Corrections (“VDOC”). (See id.; Sentencing Order, Commonwealth v. Agee, No. CR11-1171, at 1-3 (Va. Cir. Ct. May 8, 2013), dkt. 39-5). Given his “long” history of arresting now-incarcerated individuals, some of whom “are known gang members, ” Agee was placed in “protective custody status” when he entered prison.[2] (Dkt. 1, at 4; see also Pl.'s Statement of Facts, dkt. 1-1, at 1; Ex. 1, dkt. 1-2, at 1; Swiney Aff. 1-2, dkt. 39-3). He now resides at Red Onion State Prison (“ROSP”) in Pound, Virginia. (See dkts. 1, 45). This lawsuit stems from ROSP officials' decision to remove Agee from protective custody and to place him in long-term segregation in September 2016, as well their recommendation in November 2017 that he be transferred to a prison outside of Virginia. (See dkt. 1, at 3-7). Both decisions followed Agee's disciplinary conviction for assaulting another inmate while he was still under protective custody. (See Id. at 4-5).

         On September 10, 2016, Agee was in the D-1 pod with several other inmates during recreation. (See dkt. 1-1, at 1; Offense Report, at 1-2 (Sept. 10, 2016), dkt. 39-1; Fannin Aff. 4, dkt. 39-2). Around 10:00 a.m., an officer received notice of a “possible” inmate-on-inmate assault. (Dkt. 39-1, at 4). The officer reviewed footage from the pod's rapid eye camera system, which, according to the officer's written report, showed Agee approach inmate Thomas Childers “from behind . . . and place[] him in a chokehold pushing him back down” in his chair while four other inmates “assaulted him.” (Id.). Childers “positively identifie[d] each of his attackers, including Agee in this assault.” (Id.). The officer promptly filed a Disciplinary Offense Report charging Agee with “Offense 105B - Aggravated Assault Upon an Offender”[3] based on Childers's statements and the conduct that the officer observed on the surveillance video. (Id.). A different officer delivered a copy of the Disciplinary Offense Report, along with a written “Penalty Offer” proposing loss of telephone privileges for thirty days, to Agee around four o'clock that afternoon. (Id. at 4, 7). Agee accepted the penalty offer right away. (Id. at 7). His signature on these documents indicates his understanding that, by accepting the penalty offer, he was “pleading guilty to the offense” as charged in the disciplinarily report; giving up his rights to a formal disciplinary hearing, to call witnesses and present evidence in his defense, and to question any person who made a statement against him; agreeing to the thirty-day suspension of his telephone privileges; and permanently foreclosing “any appeal of this offense, ” except on limited procedural grounds. (Id. at 4, 7). Defendant Walter Swiney, the Unit Manager of the D Unit at ROSP, approved Agee's plea of guilty on September 14, 2016. (Id. at 6; dkt. 39-3, at 1- 2). Agee did not appeal this disposition. (Counts Aff. 2, dkt. 39-1).

         Around the same time, Agee was removed from protective custody and placed in administrative segregation. (See dkt. 1, at 3-4; dkt. 39-3, at 2). On September 12, Defendant Carroll Stanley, acting as the Institutional Classification Authority (“ICA”), held a hearing to review Agee's housing status in light of his recent disciplinary charge. (Dkt. 39-3, at 3). Stanley recommended Agee's status be changed to “segregation administration” because he “accepted the penalty offer” on the aggravated assault charge. (Id. at 5 (“Offender Statement: Took the penalty offer.”)). Defendant Swiney approved this recommendation the next day. (Id. at 2, 5).

         On September 16, Swiney held an ICA Hearing to review Agee's security-level designation. (Dkt. 39-3, at 6; see also dkt. 1, at 3-4). He recommended that Agee “see a change in [his] security from level ‘P, '” or “Protective Custody, ” to “security level ‘S, '” or “Segregation, ” based on his involvement in the September 10 attack on Childers, subsequent disciplinary charge, and the fact that Childers “suffered serious injuries to his hand and abdomen causing ongoing off site medical treatment.” (Dkt. 39-3, at 6 (internal quotation marks added)). The ICA report also indicates that Agee would “benefit[] from the programs and security in a security level S setting.” (Id.). Agee was moved to a long-term segregation unit on September 19, 2016 (See Id. at 3, 5). He did not appeal this determination within the time allowed under VDOC's standard grievance process.

         On November 7, 2017, Agee attended a third ICA hearing, this time to determine whether he should be recommended for Interstate Corrections Compact Transfer. (See dkt. 39-3, at 3, 7). Agee objected that he did not “want to be sent out of state” and he could go to other VDOC facilities. (Id. at 7). The ICA hearing report states that Agee was “originally in protective custody until he received [the] 105B charge, ” and that he “made progress” at security level “S.” (Id.). It recommended that he be transferred to a prison outside Virginia so he could be even “more successful and . . . productive” while serving his life sentence. (Id.). The report lists Defendant Gary Adams as the ICA who made this recommendation. (Id.). Agee alleges that it was actually Defendant Stanley who “chaired [the] ICA hearing and recommended an out of state transfer.” (Dkt. 1-1, at 2, 5). Defendants Stallard and Gilliam, both ROSP counselors, also “participated” in some capacity. (Dkt. 6, at 1). Defendant Larry Collins approved the ICA's recommendation at the administrative level, adding that Agee was housed “in protective custody until he was involved in [a] 5 on 1 assault [against] another offender” in September 2016 and that his “release into general population” at another VDOC facility was “not advised.” (See dkt. 39-3, at 3, 7). Defendant Collins was a “Unit Manager” when he approved this recommendation. (Id. at 3). Agee asserts that Defendant Collins was not authorized to do this because VDOC policy gives the “Facility Unit Head, ” i.e., the warden or superintendent, exclusive and nondelegable authority to approve interstate transfer recommendations at the facility level. (See dkt. 1, at 5-6; dkt. 1-1, at 2; dkt. 1-2, at 3; dkt. 1-3, at 1). Defendant Jeff Kiser was ROSP's warden in November 2017. (See dkt. 1, at 2, 6; 39-4, at 22).

         On November 27, Agee submitted a Regular Grievance appealing the transfer recommendation. (Dkt. 39-4, at 19). He argued that Defendant Collins did not have authority to approve this recommendation because he was not ROSP's Facility Unit Head. Agee also argued that the initial recommendation was procedurally defective because Defendant Adams was not at the ICA hearing, even though he was listed as the ICA on the hearing report. (Id.). Rather, Defendant Stanley “chaired th[e] hearing” and recommended that Agee be transferred out of state “based on the [assault] incident” in September 2016. (Id.). Agee also asserted, apparently for the first time, that the surveillance “video [did] not support” a conclusion that “5 people assaulted 1 inmate.” (Id. (“The rational[e] used is fabricated because it shows 5 people assaulted 1 inmate. Video does not support this.”)).

         Agee filed this lawsuit two days later. (See dkt. 1-5, at 1). In his verified complaint, he explained that he had “initiated th[e] exhaustion process, ” but he decided to file suit because was “being told the [grievance] appeal is only a formality, ” (dkt. 1, at 2-3), and would not stop officials from transferring him outside Virginia “to an unknown destination at an unknown facility” where he might be placed in “general population where [his] life will be in imminent danger, ” (dkt. 1-2, at 2, 5).

         On December 13, 2017, Defendant J. Artrip, then ROSP's Assistant Warden, signed a “Level I” response to Agee's grievance. (Dkt. 39-4, at 4, 22; see also dkt. 6, at 1-2). The response, drafted by Defendant J. Messer, ROSP's Grievance Coordinator, explained that involuntary interstate transfers “are a mechanism . . . . for offenders [who] may be at risk or pose a serious risk in one correctional system to be moved to another system where the risk may be reduced, ” and that VDOC's Central Classification Service (“CCS”) has “the final authority” to decide whether an inmate is transferred. (Dkt. 39-4, at 22). The facility's recommendation that Agee be transferred out of state was still pending before the CCS at that time. Assistant Warden Artrip also found that Agee's procedural complaints about the facility-level recommendation were “unfounded” because all operating “procedures [were] correctly applied” in his case. (Id. (“There has been no violation of operating procedure.”)). Agee “exhausted his administrative remedies on this issue” on January 11, 2018, when the Level I response was affirmed by “the Regional Office” on Level II appeal. (Messer Aff. 4, dkt. 39-4). Agee was still housed at ROSP as of January 16, 2019. (See dkt. 45, at 1-5).

         III. Claims ...

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