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Perry v. JPAY, Inc.

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

March 27, 2019

CALVIN PERRY, Plaintiff,
v.
JPAY, INC., et al., Defendants.

          MEMORANDUM OPINION

          ELIZABETH K. DILLON ELIZABETH K. DILLON UNITED STATES DISTRICT JUDGE

         Calvin Perry, a Virginia inmate proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983, alleging, inter alia, that defendants Warden Booker and Unit Manager (UM) Lovern subjected him to cruel and unusual living conditions through inadequate cell lighting and that defendants UM Collins and Lt. Ridge retaliated against him for filing grievances.[1] The parties have filed cross-motions for summary judgment, and this matter ripe for disposition.[2]Having considered the record, the court concludes that Perry's motion for partial summary judgment must be denied and the defendants' motion for summary judgment must be granted.

         I. BACKGROUND

         In his verified complaint, Perry asserts that he was “daily subjected” to inadequate lighting in his cell while he was housed at Green Rock Correctional Center (Green Rock), [3]causing him to strain his eyes while “trying to see in the dark cell to read or to do [his] homework or to retrieve items from [his] locker.” Perry states that UM Lovern and Warden Booker instructed “all staff” to immediately turn off the bright lights after each count was completed. Perry asserts that the lights were “off” for over twenty-three hours every day. As a result, Perry developed chronic migraines, constant eye pain, and continuous fatigue. On May 2, 2016, Perry went to the prison medical department seeking treatment for his eye pain and fatigue caused by having to strain to see in his “‘extremely' dim cell.” The nurse offered to refer him to an eye doctor. (Compl. ¶¶ 29-31, 52, 54, Dkt. No. 1; Grievance Resp., Dkt. No. 1-2, 29.)

         As he was leaving the medical department on May 2, 2016, Perry encountered Warden Booker and complained to him about the inadequate cell lights. In response, Warden Booker told him that, “the inmates here like being in the dark, they took a vote for the bright cell lights to be turn[ed] off, I suggest you buy yourself a lamp from the canteen.” On or about May 3, 2016, Perry asked UM Lovern why he “authorize[d prison] staff to turn off the bright cell lights immediately after each count is completed.” Lovern did not answer, but he instructed Perry to return to his assigned area. (Compl. ¶¶ 30-31, Dkt. No. 1.)

         On May 16, 2016, Perry filed a grievance complaining that he suffered “ongoing” eye pain and fatigue from straining to see in his “extreme[ly] dim cell.” Warden Booker responded to the grievance by indicating that Perry had been seen in the medical department and referred to an eye doctor for his eye pain. (Reg. Grievance, Dkt. No. 1-2, 36; Grievance Resp., Dkt. No. 1-2, 30.)

         In support of his verified complaint, Perry submits a declaration of inmate Downey who states that he too is housed at Green Rock and that the “only time that the bright lights are turn[ed] on is at count and then [they are] immediately turn[ed] off when count is over.” Downey avers that he has problems seeing to read and take care of his basic needs. (Downey Decl., Dkt. No. 1-2, 12.)

         Perry also asserts that defendants UM Collins and Lt. Ridge retaliated against him after he filed an informal complaint on May 13, 2016, concerning the dogs of the BARK Behind Bars Correctional Companion Program[4] using the recreation yard to “relieve themselves of body waste.” On May 16, 2016, Perry was “summoned” to UM Collins and Lt. Ridge's office where UM Collins stated, “since you're complaining about the dogs, I'm going to get Lt. Ridge to move you across the yard to another b[uildin]g.” (Compl. ¶ 41, Dkt. No. 1; Informal Compl., Dkt. No. 1-2, 15.)

         On June 23, 2016, Lt. Ridge went to Perry's cell in the “A” building and stated, “Mr. Perry, since you like writing complaints on the dogs, pack your stuff up. I am moving you across the yard to ‘C' [Building], cell #220, bottom bunk.”[5] Perry responded, “I have not requested to be moved and I do not want to be moved to ‘C' nor ‘D' [Building]. I'm okay right here on ‘A' side.” Lt. Ridge responded back, “You are being moved to ‘C' [Building] this morning and if you refuse to move, I will place you in jail, ” referring to the segregation unit. (Compl. ¶¶ 41-42, Dkt. No. 1.)

         Defendants filed a motion for summary judgment, supported by affidavits, arguing that Warden Booker and UM Lovern did not subject Perry to inadequate lighting and were not deliberately indifferent to unsafe prison conditions. They also argue that UM Collins and Lt. Ridge did not retaliate against Perry and that Perry has not demonstrated any adverse action taken against him or causation. Finally, defendants argue that they are entitled to qualified immunity. (Mem. Supp. Mot. Summ. J., Dkt. No. 45.)

         In support of their arguments concerning the cell lighting, defendants provide the affidavit of Corrections Major Northup, Chief of Security at Green Rock, which states that inmates housed in the A-3 pod, where Perry was housed at the time of his complaints, have three sources of lights in their cells, including the cell window, the ceiling light, and the pod lights. The pod and cell lights stay on at all times, the pod is never completely dark, and all lights are controlled by staff. Throughout the day, there are five offender counts conducted, with the final count done at 11:30 pm. After this final count, the lights are dimmed to “sleep mode” for the night. In sleep mode, the lights provide less illumination of the pod but are still on. The lights return to “normal operation” at 6:30 am to provide staff a clear view into the cells for morning count. After this count is complete, the lights may be dimmed back down until 7:30 am or 8:00 am as a courtesy to kitchen workers who work most of the night and return to their cells in the early morning hours. At approximately 7:30 am or 8:00 am, the pod lights are turned back on when the “normal work day” begins. The lights stay at “normal levels” during daylight hours. Major Northup also avers that inmates may purchase lamps for their cells from the canteen. (Northup Aff. ¶ 4-5, Dkt. No. 45-2.)

         In support of the arguments concerning the retaliation claim, defendants provide affidavits of UM Collins and Lt. Ridge. UM Collins avers that on May 13, 2016, he received an informal complaint from Perry concerning him having to use the same exercise yard as the dogs and claiming that the yard was “pungent with feces and urine.” In response to Perry's complaint, UM Collins checked the yard and did not detect any “strange aroma.” UM Collins also states that he had not received any other complaints from staff or inmates about odors. On May 19, 2016, UM Collins informed Perry that the inmate dog handlers remove feces and spray the affected areas with appropriate chemicals. UM Collins advised Perry that, in the past, when an inmate assigned to “A” or “B” Buildings had issues with the dogs, a cell change was offered to the “C” or “D” Buildings because the dogs do not use the “C/D” yard. Perry was transferred to the “C” Building on June 23, 2016. The housing units in “A” Building and “C” Building are both general population and have the same privileges. Lt. Ridge states that purpose of Perry's move was to provide him with a dog-free environment. Both UM Collins and Lt. Ridge aver that they did not retaliate against Perry. (Collins Aff. ¶¶ 7-8, Dkt. No. 45-1; Ridge Aff. ¶ 4, Dkt. No. 45-3.)

         In response to defendants' motion for summary judgment, Perry filed his own declaration as well as those of inmates Downey and Parrotte. All of the declarations state that the “bright cell lights” were “always” turned off by the security staff, except during counts. Inmate Parrotte also states that the cells are “very dim” and that “due to the small size of the cell windows, virtually no light was admitted into the cells.” Perry also provides a response to an informal complaint which indicates that lights are “dimmed” at 8:15 am, turned up at 3:15 pm, and then “re-dimmed” at approximately 6:15 pm. (Perry Decl. ¶ 1, Dkt. No. 47-1; Downey Decl., Dkt. No. 47-4; Parrotte Decl. ¶¶1-2, Dkt. No. 47-5; Resp. Informal Compl. Dkt. No. 47-1, 4.)

         With regard to the retaliation claim, Perry avers that he did not “want” to be moved to “C” or “D” Building, the dogs go to the bathroom in both “A/B” and “C/D” recreation yards, and sometimes it is ...


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