United States District Court, W.D. Virginia, Roanoke Division
DePaola, Pro Se Plaintiff; Margaret Hoehl O'Shea, Office
of the Attorney General, Richmond, Virginia, for Defendants.
OPINION AND ORDER
P. Jones United States District Judge
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.
is an inmate in the custody of the Virginia Department of
Corrections (“VDOC”). 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.
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.
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
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.
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.
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
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.
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
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.
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.
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.
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
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.
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 ...