United States District Court, W.D. Virginia, Roanoke Division
STEVEN R. DELK, Plaintiff,
BRIAN MORAN, et al., Defendants.
K. MOON SENIOR UNITED STATES DISTRICT JUDGE
R. Delk, also known as Ja-Quitha “Earth”
Camellia, a Virginia inmate proceeding pro se, filed
this civil rights action pursuant to 42 U.S.C. § 1983
alleging various violations of his constitutional rights
while housed at Red Onion State Prison
(“ROSP”). (Dkt. 1). This memorandum opinion will
address the motion for summary judgment filed by several
defendants. (Dkt. 91). For the reasons that follow, I will
deny the motion in part and grant the motion in part.
following defendants filed a motion for summary judgment
together: Correctional Officer (“C/O”) R. Adams,
C/O L. Mullins, Lt. Fleming, C/O M. Mullins, Qualified Mental
Health Professional (“QMHP”) D. Trent, QMHP T.
Huff, QMHP Fletcher, Dietician N. Gregg, and Food Service
Supervisor Director P. Scarberry. Delk responded and this
matter is ripe for disposition.
remaining claims are the following:
1. On March 27, 2015, QMHP Huff denied Delk mental health
treatment or meaningful evaluation;
2. On November 12, 2015, Delk told QMHP Trent that he was a
woman and that L. Mullins, M. Mullins, Adams, and several
other officers were retaliating against him based on his
grievances, race, and sexuality by verbally and physically
sexually harassing him. He further asserts that his butt had
been fondled and someone had touched his anus with a finger
through his pants, and that his requests for treatment for
dreams/nightmares, anxiety, depression, gender dysphoria, and
other concerns, as well as mental health screening,
diagnosis, evaluation, and treatment were ignored by QMHPs
Trent, Huff, and Fletcher, and other staff;
3. QMHPs Trent, Huff, and Fletcher were aware of his serious
mental health needs but intentionally failed to provide
mental health screening, diagnosis, evaluation, and treatment
while he deteriorated emotionally. They classified Delk as a
MH-0 indicating that Delk did not require treatment or have
mental health needs;
4. Adams began verbally and physically abusing Delk after
discovering that Delk received a LGBTQ newsletter. On June
22, 2015, Adams made racially offensive remarks and
threatened to starve Delk. After Delk reported the incident,
Adams falsified records to indicate that Delk refused
recreation and showers. Adams used repeated visual cavity and
strip searches to humiliate Delk;
5. On July 12, 2015, Adams threatened to enter Delk's
cell and beat him. Adams also threatened Delk at his cell,
called him names, and unjustifiably OC sprayed Delk despite
knowing Delk had asthma;
6. Adams wrote Delk two false disciplinary offense reports.
L. Mullins and Fleming deprived Delk of due process during
his disciplinary hearing because Delk was not allowed to
cross examine a witness and the charge did not include a
proper description of Delk's actions;
7. On May 16, 2016, Officer M. Mullins threatened to
adulterate Delk's food because Delk snitched;
8. M. Mullins wrote a false disciplinary report to punish
Delk for writing grievances. L. Mullins fabricated testimony,
denied evidence at the hearing, and found Delk guilty;
9. L. Mullins and M. Mullins conspired to punish Delk and to
deprive him of due process and an adequate remedy regarding
the disciplinary charge written by M. Mullins.
10. Delk's Prison Rape Elimination Act
(“PREA”) grievances were not properly addressed
at ROSP including his claim that he was sexually abused in
the stairway fire escape. QMHP Huff did not help Delk;
11. Scarberry and Gregg failed to provide Delk with a
suitable religious diet free of eggs, pork, and beans. Delk
has lost weight as a result;
12. Adams, L. Mullins, and Fleming conspired to protect
Adams' actions due to Delk's religion, sexual
orientation, and race;
13. Trent, Huff, and Fletcher conspired to deprive Delk of
his mental well-being;
14. M. Mullins and L. Mullins conspired to protect M.
Mullins' actions against Delk due to his race, sexuality,
15. Adams and M. Mullins conspired to cover up their sexual
abuse of Delk; and
16. Gregg and Scarberry conspired to starve or
“deprogram” Delk because of his religious
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.
moving party bears the burden of proving that judgment on the
pleadings is appropriate. Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). If the moving party meets this
burden, then the nonmoving party must set forth specific,
admissible facts to demonstrate a genuine issue of fact for
trial. 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. Celotex, 477 U.S.
at 322-324; 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).
“To state a claim under § 1983, a plaintiff must
allege the violation of a right secured by the Constitution
and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of
state law.” West v. Atkins, 487 U.S. 42, 48
(1988). Notably, a plaintiff must sufficiently allege a
defendant's personal act or omission leading to a
deprivation of a federal right. See Fisher v. Wash.
Metro. Area Transit Author., 690 F.2d 1133, 1142-43 (4th
Cir. 1982), abrogated on other grounds by Cty. of
Riverside v. McLaughlin, 500 U.S. 44 (1991). Negligent
deprivations are not actionable under § 1983. See,
e.g., Daniels v. Williams, 474 U.S. 327, 330
(1986); Pink v. Lester, 52 F.3d 73, 77 (4th Cir.
preliminary matter, Defendants argue that a majority of
Delk's claims are not properly exhausted pursuant to the
Prison Litigation Reform Act (“PLRA”).
PLRA provides that “[n]o action shall be brought with
respect to prison conditions under [42 U.S.C. § 1983],
or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such
administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a).
“[E]xhaustion is mandatory under the PLRA and . . .
unexhausted claims cannot be brought in court.”
Jones v. Bock, 549 U.S. 199, 211 (2007) (citing
Porter v. Nussle, 534 U.S. 516, 524 (2002)).
“‘[T]he language of section 1997e(a) clearly
contemplates exhaustion prior to the commencement of
the action as an indispensible requirement, thus requiring an
outright dismissal [of unexhausted claims] rather than
issuing continuances so that exhaustion may
occur.'” Carpenter v. Hercules, No.
3:10cv241, 2012 WL 1895996, at *4 (E.D. Va. May 23, 2012)
(quoting Johnson v. Jones, 340 F.3d 624, 628 (8th
Cir. 2003)). The exhaustion requirement “allow[s] a
prison to address complaints about the program it administers
before being subjected to suit, reduc[es] litigation to the
extent complaints are satisfactorily resolved, and
improve[es] litigation that does occur by leading to the
preparation of a useful record.” Jones, 549
U.S. at 219. Failure to exhaust all levels of administrative
review is not proper exhaustion and will bar an inmate's
§ 1983 action. Woodford v. Ngo, 548 U.S. 81, 90
PLRA exhaustion is mandatory. See Moore v. Bennette,
517 F.3d 717, 725, 729 (4th Cir. 2008); Langford v.
Couch, 50 F.Supp.2d 544, 548 (E.D. Va. 1999).
Nonetheless, courts are “obligated to ensure that any
defects in administrative exhaustion were not procured from
the action or inaction of prison officials.”
Aguilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225
(10th Cir. 2007); see Kaba v. Stepp, 458 F.3d 678,
684 (7th Cir. 2006). An administrative remedy is not
available “if a prisoner, through no fault of his own,
was prevented from availing himself of it.”
Moore, 517 F.3d at 725.
Operating Procedure (“OP”) § 866.1, Offender
Grievance Procedure, is the mechanism used to resolve inmate
complaints and requires that, before submitting a formal
grievance, the inmate must demonstrate that he has made a
good faith effort to resolve the grievance informally through
the procedures available at the institution to secure
institutional services or resolve complaints. If the informal
resolution effort fails, the inmate must initiate a regular
grievance by filling out the appropriate form. Prior to
reviewing the substantive claims of the grievance, prison
officials conduct an “intake” review of the
grievance to ensure that it meets the published criteria for
acceptance. If the grievance does not meet the criteria for
acceptance, prison officials complete the
“intake” section of the grievance and return it
to the inmate. The inmate may seek review of the intake
decision by sending the grievance form to the Regional
Ombudsman. On the other hand, if the grievance meets the
criteria for acceptance, it is logged on the day it is
are three levels of review for an accepted regular grievance.
The Facility Unit Head of the facility in which the inmate is
confined is responsible for Level I review. A dissatisfied
inmate may appeal to Level II, which is conducted by the
Regional Administrator, the Health Services Director, or the
Chief of Operations for Offender Management Services. The
Level II response informs the offender whether he may pursue
an appeal to Level III, which is the final level of review.
argue that several claims were not properly exhausted. I
agree that Delk failed to exhaust Claims 5, 7, 9, 10, 12, 13,
14, and 15 as identified above. For these claims, Delk did
not follow proper exhaustion procedure, and, considering how
many grievances and appeals he pursued, it is clear that the
procedure was readily available to him. See, e.g.,
Woodford, 548 U.S. at 81. Therefore, I will grant
summary judgment as to these claims for failure to exhaust
under the PLRA.
I disagree with Defendants as to Claim 1. Delk filed a
regular grievance on the issue but it was rejected as a
request for services. (Encl. B, dkt. 92-1). He later appealed
that to the Regional Ombudsman, who upheld the initial
ruling. (Id.) That appeal, despite Delk's
failure to correctly follow grievance procedure, demonstrates
that, as to that particular claim, exhaustion was
only the following remain: (1) QMHPs Trent, Huff, and
Fletcher failed to take appropriate action in the screening
and diagnosis of Delk's mental illness; (2) Adams
violated Delk's constitutional rights; (3) Fleming and L.
Mullins failed to provide proper process for Delk; (4) M.
Mullins violated Delk's rights by filing a false
disciplinary charge; and (5) Scarberry and Gregg violated
Delk's rights under the Free Exercise Clause and the
Religious Land Use for Institutionalized Persons Act
Matters of State Law and the PREA
Constitution of Virginia
threshold, Delk's allegations pursuant to Va. Const. Art.
I, §§ 9, 11, and 16 fail to state a claim on which
relief may be granted. For a constitutional provision to be
“operative, ” it must be self-executing or have
associated legislation that allows for a cause of action.
Robb v. Shockoe Slip Found., 324 S.E.2d 674, 681-82
(Va. 1985); Gray v. Va. Sec'y of Transp., 662
S.E.2d 66, 103 (Va. 2008). A provision is generally not
self-executing if “it merely indicates principles,
without laying down rules by means of which those principles
may be given force of law.” Robb, 324 S.E.2d
at 681-82. First, Va. Const. Art. I § 9 “states
only the principle that cruel and unusual punishment ought
not to be inflicted, without any attendant rules”;
therefore, “§ 9 is not self-executing.”
Quigley v. McCabe, No. 2:17cv70, 2017 WL 3821806, at
*5 (E.D. Va. Aug. 30, 2017).
§ 11 is Virginia's Due Process Clause and
is self-executing “only in the context of claims of
damages to or takings of property.” Quigley,
2017 WL 3821806, at *6; see also Doe v. Rector &
Visitors of George Mason Univ., 132 F.Supp.3d 712, 728
(E.D. Va. 2015) (“Although the due process provision of
the Virginia Constitution is self-executing, this has only
been held to be true with regard to property
deprivation.”). Delk's claims do not implicate
damages to or takings of property. Third, Delk fails to
establish that Va. Const. Art. I, § 16 is
self-executing. See Bayadi v. Clarke, No.
7:16cv00003, 2017 WL 1091946, at *6 (W.D. Va. Mar. 22, 2017)
(dismissing plaintiff's Va. Const. Art. I, § 16
claim for failing to establish that § 16 was
self-executing under similar circumstances). Therefore, Delk
fails to state a cognizable claim based on Va. Const. Art I,
§§ 9, 11, or 16.
Delk asserts several claims under Va. Const. Art. I, §
12, Virginia's self-executing analogue to the First
Amendment. See McCaffrey v. Chapman, No. 1:17cv937,
2017 WL 4553533, at *5 (E.D. Va. Oct. 12, 2017). Although the
Supreme Court of Virginia has never clearly established the
scope of relief of self-executing provisions of the Virginia
Constitution, “the freedom of speech guaranteed by
Article I, § 12 of the Constitution of Virginia is
coextensive with the protections guaranteed by the First
Amendment of the Constitution of the United States.”
Black v. Commonwealth, 553 S.E.2d 738, 751 (Va.
2001) vacated in part on other grounds, 538 U.S. 343
(2003). “Therefore, Plaintiff's [Virginia] and
federal constitutional free speech claims rise and fall
together.” McCaffrey, 2017 WL 4553533, at *5.
As such, I will analyze Delk's Va. Const. Art. I, §
12 claims under the framework of the First Amendment of the
United States Constitution.
repeatedly asserts that Defendants violated Va. Code
§§ 53.1, 54.1. However, Va. Code §§ 53.1,
54.1 are not statutes; they are Titles that contain multiple
chapters and many statutes. The court is not required to dig
through pleadings and state law to manufacture claims for a
litigant, even if he is proceeding pro se. See
Beaudett, 775 F.2d at 1278. Therefore, I will grant the
motion for summary judgment as to claims purportedly based on
Va. Code §§ 53.1, 54.1.
Delk asserts claims under Va. Code § 8.01-42.1, which
provides a right of action for victims of intimidation,
harassment, violence, or vandalism, when such acts are
motivated by racial, religious, or ethnic animosity. However,
as discussed below in Part X, I will grant the motion for
summary judgment as to the related First Amendment and RLUIPA
federal claims and I will decline to exercise supplemental
jurisdiction over the associated state law claims.
See 28 U.S.C. § 1367(c)(3) (district court may
decline to exercise supplemental jurisdiction if it has
dismissed all claims over which it has original
jurisdiction); United Mine Workers v. Gibbs, 383
U.S. 715, 726 (1966) (“Certainly, if the federal claims
are dismissed before trial . . . the state claims should be
dismissed as well.”). Delk is free to file the
dismissed Va. Code § 8.01-42.1 claims in state court.
Prison Rape Elimination Act (“PREA”)
also asserts claims under the PREA and the VDOC's
Operating Procedures related to the PREA. However, many
courts have found that the PREA does not establish a private
cause of action for allegations of prison rape. See Krieg
v. Steele, 559 Fed.Appx. 231, 232-33 (5th Cir. 2015);
Chao v. Ballista, 772 F.Supp.2d 337, 342 n.2 (D.
Mass. 2011). Furthermore, to any extent Delk attempts to
assert a PREA claim under Virginia law or the VDOC's
Operating Procedure, such a claim is not cognizable under
§ 1983. Therefore, I will grant the motion for
summary judgment as to the PREA claims.