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Delk v. Moran

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

March 26, 2019

STEVEN R. DELK, Plaintiff,
BRIAN MORAN, et al., Defendants.



          Steven 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”).[1] (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.

         I. Procedural History

         The 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.

         II. Claims [2]

         Delk's 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, and religion;
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 beliefs.

         III. Legal Standards

         A. 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 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).[3]

         B. Section 1983

          “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. 1995).

         IV. Exhaustion

         As a preliminary matter, Defendants argue that a majority of Delk's claims are not properly exhausted pursuant to the Prison Litigation Reform Act (“PLRA”).

         The 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 (2006).

         Ordinarily, 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.

         VDOC 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 received.

         There 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.

         Defendants 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.

         However, 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 unavailable.

         Therefore, 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 (“RLUIPA”).

         V. Matters of State Law and the PREA

         A. Constitution of Virginia

         At the 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[4] “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).

         Second, § 11[5] 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.

         Lastly, 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.

         B. State Law

         Delk 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.

         Next, 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.

         C. Prison Rape Elimination Act (“PREA”)

         Delk 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.[6] Therefore, I will grant the motion for summary judgment as to the PREA claims.

         VI. Eighth ...

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