United States District Court, W.D. Virginia, Roanoke Division
ERIN D. PROCTOR, Plaintiff,
LARRY T. EDMONDS, et al., Defendants.
Elizabeth K. Dillon United States District Judge.
Proctor, a Virginia inmate proceeding pro se, filed
this civil rights action pursuant to 42 U.S.C. § 1983,
alleging that the defendants violated his constitutional
rights related to a disciplinary conviction. Defendants L. T.
Edmonds, M. Washington, M. Smith, C. Davis, G. M. Hinkle,
J. Fleming, C. B. Sims, R. Woodson, and M. Walker filed a
motion for summary judgment. Having reviewed the record, the
court concludes that the defendants' motion for summary
judgment must be granted.
April 6, 2017, Proctor was involved in an altercation with
Officer Jefferson. Proctor contends that Officer Jefferson
set up this altercation and a subsequent “false”
misconduct charge, in an effort to retaliate against Proctor
because Proctor threatened to file a complaint against
Officer Jefferson for calling him a name. Proctor does not
allege that the other defendants knew of Officer
Jefferson's alleged misconduct. Following the
altercation, Sergeant Smith charged Proctor with Attempt to
Commit Aggravated Assault Upon a Non-Offender (105A/198B) for
attempting to make physical contact with Officer Jefferson.
Proctor was served the Disciplinary Offense Report (DOR) on
April 26, 2017. The DOR described the charge based on Sgt.
Smith's investigation. (Mem. Opp'n Summ. J. 2, Dkt.
No. 34-1; Sims Aff., Encl. A, Dkt. No. 28-1).
advised Proctor of his rights under Virginia Department of
Corrections (VDOC) Operating Procedure (OP) 861.1 in
preparing for and appearing at his disciplinary hearing,
including the right to an advisor, the right to request
witnesses and documentary evidence, the right to a 24-hour
notice prior to the hearing, the right to be present and to
question witnesses, the right to enter into a penalty offer,
and the right to remain silent. The DOR also instructs:
“You may be found guilty of a lesser-included offense
code, in accordance with operating procedure 861.1.”
Proctor signed the DOR, indicating that he had received the
DOR and read the notice provisions. Proctor was then provided
a penalty offer, which he declined. (Sims Aff., Encl. A).
1, 2017, Proctor filed witness request forms, reporting
officer response forms, and documentary evidence request
forms. Proctor sought witness statements from two
inmates, Brown and “Call him Mack, ” as well as
Sergeant Jackson, Officer Jones, Officer Jefferson,
Lieutenant Swann, and Officer White. Hearing Officer Sims
denied the witness request forms because Proctor
“failed to give the required information, ”
omitting a description of each of the witnesses'
knowledge of the incident. There is debate amongst the
parties as to whether Proctor properly completed the witness
request forms and if the defendants “white[d]
out” Proctor's statements. (Sims Aff. 2; Proctor
Aff. 4, Dkt. No. 34-2).
also submitted a documentary evidence request form, seeking
the rapid-eye video footage and copies of the incident
reports filed by Officer Jones and Sgt. Jackson. HO Sims
denied Proctor's request for both the video footage and
the incident reports for security reasons. (Sims Aff. 2).
10, 2017, HO Sims conducted the hearing. At the hearing, Sgt.
Smith testified to the steps he took during the
investigation, including viewing the video footage, reviewing
the incident reports, and interviewing Officer Jones and Sgt.
Jackson. Proctor cross-examined Sgt. Smith. Because of the
“seriousness of the charge, ” HO Sims
acknowledged that it would be helpful to hear from Officer
Jones and Sgt. Jackson, even though Proctor did not properly
complete the witness request forms. Because Officer Jones and
Sgt. Jackson were unavailable, HO Sims suggested adjourning
the hearing until May 17, 2017. Proctor consented to the
continuation. On May 17, 2017, Officer Jones and Sgt. Jackson
testified and Proctor was given an opportunity to
cross-examine them. (Hr'g R., Dkt. No. 31; Sims Aff.
found Proctor guilty of Attempting to Commit Aggravated
Assault Upon a Non-Offender and penalized Proctor with 30
days in disciplinary segregation and the loss of 120 days of
good time credits. HO Sims based his decision on Sgt.
Smith's investigation and Officer Jones and Sgt.
Smith's hearing testimony. (Sims Aff. 3).
was given a final report detailing the decision on May 30,
2017, and filed an appeal. Warden Edmonds reviewed the
investigation, the video footage of the incident, and the
recording of the disciplinary hearing. On June 14, 2017,
Warden Edmonds responded to the appeal, finding that
Proctor's “due process rights have not been
violated.” Warden Edmonds also reduced Proctor's
offense to the lesser-included Attempting to Commit Simple
Assault Upon a Non-Offender (239A/238B). Proctor appealed
Warden Edmonds' ruling, and Regional Administrator
Fleming upheld Warden Edmonds' decision. (Edmonds Aff.,
Encl. B, Dkt. No. 28-2; Sims Aff. 4; Compl. 8, Dkt. No. 1).
also submitted an informal complaint through the prison's
grievance process following his altercation with Officer
Jefferson. Captain Washington responded to the informal
complaint on April 15, 2017, stating “your concern has
been addressed.” Following Warden Edmonds' review
of the disciplinary investigation, video evidence, and
hearing recording, he upheld Capt. Washington's decision.
Warden Edmonds specifically stated: “There is no
evidence of Officer Jefferson assaulting you.” Warden
Edmonds determined Proctor's grievance to be unfounded,
and his opinion was upheld by Regional Administrator Hinkle.
(Edmonds Aff., Encl. B).
16, 2017, following an Institutional Classification Authority
(ICA) review, Proctor was transferred to Sussex I State
Prison, a security level 5 facility. After Regional
Administrator Fleming upheld the reduction in Proctor's
offense, his good time credits and security level were
adjusted accordingly. In September 2017, the ICA conducted an
interim review of Proctor and recommended his transfer to a
security level 3 facility. (Edmonds Aff. 3).
complaint, Proctor sues Capt. Washington, Sgt. Smith,
Assistant Davis, Regional Administrator Fleming, Regional
Administrator Hinkle, Grievance Coordinator Walker, Regional
Ombudsman Woodson, Warden Edmonds, Officer Jefferson, and HO
Sims for alleged constitutional violations during the
disciplinary proceedings. Liberally construed, Proctor's
claims are that: (1) HO Sims and Sgt. Smith failed to call
all of Proctor's witnesses and provide the requested
documentary evidence; (2) HO Sims failed to hold the hearing
in the time prescribed by VDOC policy; (3) Grievance
Coordinator Walker and Regional Ombudsman Woodson denied
Proctor access to courts; (4) Assistant Davis, Regional
Administrator Fleming, and Regional Administrator Hinkle
failed to properly respond to Proctor's grievances and
disciplinary appeals; and (5) HO Sims ...