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DePaola v. Clarke

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

March 26, 2019

ERIC DePAOLA, Plaintiff,
HAROLD CLARKE, ET AL., Defendants.

         Eric DePaola, Pro Se Plaintiff; Margaret Hoehl O'Shea, Office of the Attorney General, Richmond, Virginia, for Defendants.


          James P. Jones United States District Judge

         The plaintiff, Eric DePaola, a Virginia inmate proceeding pro se, filed an Amended Complaint under 42 U.S.C. § 1983, alleging violations of his rights related to prison disciplinary proceedings. After review of the record, I conclude that the defendants' Motion for Summary Judgment must be granted.

         I. Background.

         DePaola is an inmate in the custody of the Virginia Department of Corrections (“VDOC”).[1] At the time these claims arose, he was incarcerated at Red Onion State Prison (“Red Onion”). The defendants are Harold Clarke, VDOC Director, A. David Robinson, VDOC Chief of Correctional Operations; Marcus Elam, VDOC Western Regional Administrator; Earl Barksdale, former Warden of Red Onion; and Larry Mullins, Institutional Hearings Officer at Red Onion. On January 13, 2016, two officers reported to Sergeant Hall their discovery, during a search of DePaola's assigned cell, C-514, that a six-inch piece of metal was missing from the table inside that cell. DePaola was moved to Cell C-501, and lockdown procedures went into effect.

         On January 15, 2016, an officer served DePaola with a copy of a Disciplinary Offense Report (“DOR”) charging him with offense code 102, possession of a weapon or sharpened instrument. According to the DOR, written by Hall, two officers searching Cell C-514 earlier that day, looking for the metal shard missing from the table, had found it hidden in “the small crack between the cell bunk and the wall. The metal was approximately six inches long with a sharpened tip and was made to be a weapon. No. other offender had been housed in Cell C-514 since January 13, 2016.” Mem. Supp. Mot. Summ. J. Ex. 1, Mullins Aff., Enclosure B, ECF No. 29-1.

         The DOR advised DePaola of the rights he had under Operating Procedure (“OP”) 861.1 in preparing for and appearing at a disciplinary hearing on this charge: the right to an advisor, the right to request witnesses and documentary evidence, the right to 24-hour notice prior to the hearing, the rights to be present and to question witnesses, the right to enter into a penalty offer, and the right to remain silent. DePaola signed the DOR, indicating that he had been so advised.

         Institutional Hearings Officer (“IHO”) Mullins conducted the disciplinary hearing on DePaola's offense code 102 charge on January 29, 2016. DePaola was present with his staff advisor, Counselor Stewart. DePaola pleaded not guilty. He asked Mullins to have his hands cuffed differently so that he could take notes during the hearing to aid in preparing an appeal. Mullins denied the request for different cuffing as unnecessary and denied DePaola's request to allow his staff advisor to take notes on his behalf.

         Mullins next reviewed DePaola's requests for witness statements and documentary evidence and denied these requests. DePaola had filed two witness forms, requesting written statements from inmates Jason Jordan and Bryan Collins. DePaola believed Jordan, assigned to cell C-520, would testify that he saw numerous people, including other inmates, enter and exit DePaola's prior cell, C-514, during the two days after DePaola was moved to C-501. DePaola believed Collins, assigned to cell C-513, would testify that while living next door to DePaola for nearly a year, Collins had “never heard [him] cutting, scraping, scratching &/or sharpening any metal &/or otherwise any weapon period.” Id. at Enclosure D, ECF No. 29-1. Mullins found that neither of these witnesses could have seen inside DePaola's cell or observed what was done there, by DePaola himself or by staff or others who entered the cell during the search process. Mullins also noted that DePaola could have waited to work at weapon making until Collins left his cell for a shower or medical appointment.

         DePaola submitted one Documentary Evidence Form, asking for several items: maintenance logs, cell inspection charts, and work orders for cell C-514; pictures of the weapon and the cell table; incident reports about the damage to the cell table; copies of the current and prior OP 861.1 and other procedures; and surveillance video footage of C-5 pod between January 13 and 15, 2016. Mullins denied the request for maintenance logs, because such items are restricted for staff members. He did not address DePaola's other requests for evidence, stating that the inmate should have used a separate form to request each item of documentation. DePaola pointed out that the form gave no such direction. Mullins then denied his individual requests for different reasons, finding that the procedures were either available through the prison law library or were restricted for staff use only; and the video footage, photographs, work orders, and logs were either not documentary evidence or were restricted for staff use.[2]

         Mullins asked Hall as the reporting officer to make his statement about what had happened, which closely followed the DOR account. Hall's officers found on January 13, 2016, that a metal piece was missing from the table in cell C-514, where DePaola had been housed for many months. When they could not immediately find the missing piece, they removed DePaola from that cell for security reasons and continued the search.

         DePaola asked Mullins if he could be impartial. Mullins replied that he met the VDOC qualifications for an IHO and had performed this function as an impartial decision maker for years. Mullins refused to entertain any other questions on his impartiality.[3]

         DePaola then had an opportunity to question Hall. He asked whether inmate housemen had been inside cell C-514 to clean after he had been moved out of it. Hall said no, because the unit was on lockdown until after the weapon was found. Hall explained that during a lockdown, housemen only work in the C pod showers, and they are locked in the showers while cleaning. Hall admitted that he did not work nightshift on January 13, 14, or 15, 2016, but he stated that the same lockdown procedures applied during the nightshift. Hall stated that two of his officers, working together, found the weapon hidden between a bunk and the wall and immediately notified Hall. He then examined the weapon, which he described as extremely sharp with no handle.

         DePaola made a statement in his defense. He denied that any piece of metal was missing from his cell table. He claimed that after he was moved to another cell on another floor, many officers and inmate housemen had entered his prior cell during the next two days. He also denied any knowledge of the weapon found in cell C-514 on January 15, 2016.

         Mullins then reviewed the evidence and made his findings, as follows. A weapon was found. One element of possession of a weapon is finding it within an inmate's area of control. After DePaola had been housed in cell C-514 for nearly a year, officers discovered on January 13, 2016, that a strip of metal was missing from the table in that cell and transferred DePaola to another cell. No. other person who entered the cell during the next two days could have removed that strip of metal, because it was already gone. On January 15, 2016, two officers searching the cell together found a strip of sharpened metal, hidden between a bunk and the wall, that matched the missing part of the table. Mullins did not find persuasive any of DePaola's arguments that others had had an opportunity to make and hide that weapon.

         On these findings, Mullins found DePaola guilty of the charge and imposed a $12.00 fine. DePaola appealed Mullins' rulings to Warden Barksdale and then to Regional Administrator Elam, both of whom upheld the finding of guilt.[4]

         Liberally construing DePaola's § 1983 Complaint, he claims that Mullins violated due process by: (1) denying exculpatory and other relevant documentary evidence DePaola requested; (2) denying the exculpatory witness statements DePaola requested and allowing Hall to write a disciplinary charge based on an incident that he had not personally witnessed; (3) displaying “bias/prejudice toward [DePaola] in re. to the hearing” and refusing questions on that issue; (4) denying DePaola the opportunity to prepare for his appeal; and (5) “[i]mposing a forfeiture of funds from [DePaola's] commissary account, w/o sufficient due process, &/or ipso facto.” Am. Compl. 3, ECF No. 18. DePaola specifically complains that because segregation inmates, like him, rarely have prison employment, disciplinary fines come from money that friends and family have provided. Moreover, segregation inmates have no access to many items purchased with fine monies, such as outdoor recreation equipment, magazines or newspapers for the general population inmates. DePaola contends that the policy allowing such forfeitures is unconstitutional.

         The defendants filed a Motion for Summary Judgment and a motion to stay discovery, pending disposition of their argument for qualified immunity. By Order entered July 30, 2018, I denied their motion to stay discovery and directed them to respond to DePaola's discovery requests within thirty days, and gave DePaola sixty days thereafter to respond to their arguments on summary judgment. DePaola has chosen not to respond to the defendants' motion. However, the ...

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