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Alana v. Rose

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

December 20, 2019

METKEL ALANA, Plaintiff,
v.
OFFICER ROSE, ET AL., Defendants.

          MEMORANDUM OPINION

          Hon. Glen E. Conrad Senior United States District Judge

         Metkel Alana, a Virginia inmate proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging that the defendant prison officials shot him on two occasions, causing injuries. Three of the defendants, Officers Rose, J. Turner, and T. Meade, have answered his complaint. Defendant Clarke has filed a motion to dismiss, and Alana has responded by submitting an affidavit that the court will construe and grant as a motion to amend the complaint. After review of the record, the court concludes that the motion to dismiss must granted.

         I.

         Virginia Department of Corrections (“VDOC”) Operating Procedure (“OP”) 420.1, [1] titled Use of Force, describes several categories of nonlethal force devices and the circumstances under which correctional officers may use them to encourage compliance with orders or to quell fights or other disturbances.[2] These devices include impact weapons, impact munitions, and a 40 mm gas gun. OP 420.1(G)-(I), ECF No. 59-1. Impact weapons and munitions may be used “to compel an offender to comply with direct orders when no alternative method of persuasion is effective and other types of force are not appropriate.” OP 420.1(H). When “it becomes necessary” for interior gun post officers to assist in quelling an inmate “fight, assault or disturbance, ” the protocol stated in the OP is as follows:

a. If feasible, sound an audible warning for all offenders to lie down and stop the unauthorized actions”:
b. If the unauthorized action continues, using the 40 mm launcher, aim at the lower extremities and fire one direct impact OC[3] round to quell the unauthorized actions.
c. Pause.
d. If the unauthorized action continues, using the 40 mm launcher, aim at the lower extremities and fire one direct impact OC round or exact impact sponge round.
e. Pause and fire additional direct impact OC rounds and/or exact impact sponge rounds until unauthorized actions are under control or stopped.

         OP 420.1(I)(2). The use of force operating procedure does not include a definition of fighting that must be met before nonlethal force may be used. If an inmate “poses an immediate threat of physical violence, ” however, officers need not await authorization from the shift commander to use impact weapons against that inmate. OP 420.1(G)(5).

         Alana alleges that on May 23, 2015, at Red Onion State Prison, Defendants Turner and Meade shot Alana a total of seven times because he is an African American Muslim. Alana does not describe the type of projectile these officers fired at him or the circumstances that led to this event. He allegedly suffered several injuries above the waist, including a broken tooth. Alana also alleges that on June 17, 2016, Defendant Rose shot him because he is an African American Muslim. Again, Alana does not describe the type of projectile that struck him or the surrounding circumstances, but he alleges that he suffered injuries to his leg and buttock and a broken nose. After each of these incidents, Alana was charged with a disciplinary offense for fighting. Alana Aff. ¶¶ 7-8, ECF No. 43.

         In addition, Alana alleges that Defendant Harold Clarke, Director of the Virginia Department of Corrections (“VDOC”), “is in default of the duty to enforce and oversee enforcement [of the] 8th Amend[ment]. Protections allowing measures to encourage officers to shoot prisoners capriciously curtailing rights against wanton inflictions of pain causing & contributing to my injuries.” Compl. 4, ECF No. 1. More specifically, Alana argues as follows: that Clarke has a statutory duty to supervise and manage correctional facilities and personnel; that the VDOC use of force policy is “either established . . . or sanction[ed] by” Clarke; that Turner, Meade, and Rose were acting as Clarke's agents who assert that their actions “were in accord with policy and procedure” because Alana was “fighting”; and that the disciplinary charges these officers brought against Alana for fighting did not state “any articulatable facts depicting that [he] was actually fighting.” Alana Aff. ¶¶ 6-8, ECF No. 43.

         Based on these allegations, Alana contends that the procedures “sanctioned by Harold Clarke, effectively provide[ ] his employees/agents the ability to use ‘fighting' as a pretext, without any facts depicting so, to utilize force with no impugnment, at their caprice.”[4]Id. at ¶ 9. Liberally construed, Alana's submissions assert a claim that the use of force policy “provides by devise, an official basis for [VDOC officers] to abuse ...


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