Abdullah v. Seba et al

Filing 42

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable Malachy E Mannion on 9/29/14. (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s), # 5 Unpublished Opinion(s))(bs)

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Only the Westlaw citation is currently available.
United States District Court, W.D. Virginia,
Roanoke Division.
Ray Lee HOLLEY, Jr., Plaintiff,
v.
Gene JOHNSON, et al., Defendants.
No. 7:08CV00629.
June 30, 2010.
Ray Lee Holley, Jr., Pound, VA, pro se.
Susan Foster Barr, Office of the Attorney General,
Richmond, VA, for Defendants.
MEMORANDUM OPINION
GLEN E. CONRAD, District Judge.
*1 This civil rights action, filed under 42 U.S.C. §
1983 and the Religious Land Use and Institutionalized
Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc to
2000cc–5, is before the court upon the Report and
Recommendation of the United States Magistrate Judge,
prepared pursuant to 28 U.S.C. § 636(b). The magistrate
judge recommends that the court grant defendants' motion
for summary judgment in part and deny it in part.
Defendants have filed one objection and a supplemental
motion for summary judgment, while plaintiff has filed
several objections to the report. Upon de novo review of
the portions of the report and the record pertinent to the
objections, the court adopts portions of the report,
consistent with this memorandum opinion, and grants
defendants' motions for summary judgment.
I. Background
Plaintiff Ray Lee Holley, Jr., an inmate in the
segregation unit at Red Onion State Prison who is
proceeding pro se, brings this civil rights complaint,
pursuant to 42 U.S.C. § 1983. He alleges three groups of
claims concerning:
(a) the confiscation of religious materials necessary

for his practice of his professed religion, the Nation of
Gods and Earths (also known as the Five Percent Nation
of Islam or Five Percenters),FN1 in violation of the
Constitution, RLUIPA, the Virginia Constitution, and
state law;
FN1. Although Holley refers to his religion as
“the Nation of Gods and Earths,” he does not
object to the magistrate judge's finding of fact
equating the Five Percenters and the Nation of
Gods and Earths or indicate that his personal
religious beliefs differ from the mainstream
beliefs of the group. Therefore, for brevity's
sake, the court will refer to Holley's asserted
religious belief system and group as the Five
Percenters.
(b) denial of his request to receive the Common Fare
Diet (CFD) in keeping with his religious beliefs, in
violation of the Constitution, RLUIPA, and the Virginia
Constitution; and
(c) his being held in ambulatory restraints for 48
hours (from September 29 to October 1, 2007), in
violation of the Eighth Amendment, the Virginia
Constitution, and state law.
Defendants moved for summary judgment, and
plaintiff responded. The court found that Holley had
alleged facts which, liberally construed, stated
constitutional and RLUIPA claims. (Mem.Op. Oct. 1,
2009.) Therefore, the court denied the motion on the
ground of qualified immunity and referred the matter to
the magistrate judge. After amendment of the complaint
and completion of discovery, the magistrate judge
issued her report, recommending that defendants'
motions for summary judgment be granted in part and
denied in part.
II. Discussion
In a report pursuant to § 636(b), the magistrate judge
makes only recommendations to the court. The

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recommendations have no presumptive weight, and
responsibility for making a final determination remains
with the court. Mathews v. Weber, 423 U.S. 261, 270–71,
96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The court is charged
with making a de novo review of those portions of the
report to which specific objection is made, and may
“accept, reject, or modify, in whole or in part, the findings
or recommendations” of the magistrate judge. 28 U.S.C.
§ 636(b)(1). In the absence of specific objections to the
report, the court is not required to give any explanation for
adopting the recommendation. Camby v. Davis, 718 F.2d
198, 199–200 (4th Cir.1983).
*2 Pursuant to Rule 56 of the Federal Rules of Civil
Procedure, summary judgment is properly granted if
“there is no genuine issue as to any material fact and the ...
moving party is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c). For a party's evidence to raise a
genuine issue of material fact to avoid summary judgment,
it must be “such that a reasonable jury could return a
verdict for the non-moving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). In determining whether to grant a
motion for summary judgment, the court must view the
record in the light most favorable to the non-moving party.
Terry's Floor Fashions, Inc. v. Burlington Indust., Inc.,
763 F.2d 604, 610 (4th Cir.1985).
A. Classification of Five Percenters as a Security
Threat Group (STG)
The magistrate judge recommends granting
defendants' motion for summary judgment as to any claim
that the Virginia Department of Corrections' (VDOC)
designation of the Five Percenters as an STG violates
Holley's right to free exercise of his religious beliefs under
the First Amendment. (Report 7–9, 27.) Although his
complaint raises arguments that Five Percenters are not a
security threat, Holley does not object to this portion of
the report. Moreover, he now expressly asserts that he
“does not challenge the VDOC's security threat group
classification” of the Five Percenters. (Dkt. No. 115 at 2.)
Accordingly, the court will adopt this portion of the report
without further discussion and will grant defendants'
motion for summary judgment as to any aspect of Holley's
complaint asserting that the VDOC's classification of the
Five Percenters as an STG is unconstitutional or otherwise
unlawful. Id. See also In re Long Term Admin.

Segregation of Inmates Designated as Five Percenters,
174 F.3d 464, 468 (4th Cir.1999) (upholding South
Carolina prison policy designating Five Percenters as an
STG and requiring that STG members remain in long-term
segregated confinement).FN2
FN2. As Holley notes, the In re Five Percenters
decision did not address plaintiffs' claim in that
case challenging a ban on possession of Five
Percenter literature, because the issue “was
settled by the parties after the district court
enjoined the restriction.” 174 F.3d at 468 n. 2.
B. Confiscation of Religious Publications
1. First Amendment
The magistrate judge recommends that defendants'
motion for summary judgment be granted as to Holley's
claim that confiscation of his religious materials violated
his rights under the First Amendment. (Report 9–10.) She
assumes for purposes of the report, without making a
factual finding, that the Five Percenters are a religious
group entitled to First Amendment protections. FN3 She
recommends granting summary judgment, however, based
on this court's decision in Cartwright v. Meade, in which
the court held that confiscation of Five Percenter materials
pursuant to the VDOC's zero tolerance policy regarding
gangs and gang identifiers is rationally related to
furtherance of a legitimate penological interest. Case No.
7:08CV00250, 2008 WL 2944668 (W.D.Va. July 31,
2008) (unpublished) (citing other cases).
FN3. Defendants argue that the Five Percenters
are not a religious group, as indicated in the
group's own publications, and are thus not
entitled to First Amendment protections. Holley
claims that the Five Percenters are a sect of the
Nation of Islam. In declining to resolve the
dispute over whether the Five Percenters are a
religious group, the magistrate judge follows the
Fourth Circuit's lead. See In re Five Percenters,
174 F.3d at 468.
Holley objects to this recommendation. He argues that
a genuine issue of material fact remains in dispute as to
whether Five Percenters literature itself poses a threat to
prison order, whether a blanket ban against inmates'
possessing such literature, regardless of content, furthers
prison security, and whether defendants considered the

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religious nature of his materials before confiscating them.
Holley states that the official literature of the Five
Percenters as a whole is called “The 120°,” also known as
“The Book of Life.” According to plaintiff, this
publication does not advocate violence and is as essential
to the exercise of his faith as the Koran is to the Islamic
faith, the Bible to the Christian faith, and the Torah to the
Jewish faith. Among his exhibits, he offers replicas of the
Five Percenter items taken from his cell and confiscated as
gang-related.FN4 He asserts that the confiscated lessons are
the only means of spiritual guidance he has available to
him as a VDOC inmate, since STG designation prohibits
him and other Five Percenters from meeting or
corresponding with each other or with religious advisors
or clergy. He asserts that his case is distinguishable from
Cartwright. because the inmate plaintiff in that case did
not allege that he was precluded from alternative means of
practicing his religious beliefs, as Holley alleges. 2008
WL 2944668 at *2 n. 2. The court finds no merit to
Holley's objections.
FN4. The replicated documents Holley submits
include “The Supreme Mathematics,” several
lessons purportedly similar to the ones found in
“The 120 °,” and the “(7) Stages of Wisdom.”
(Dkt. No. 57 at 90–96.) A symbol, consisting of
a half-moon shape and a five-pointed star shape
under the numeral seven, appears prominently in
several places in these materials. This symbol is
the Five Percenters' official trademark. “The
Nation of Gods and Earths.” Wikipedia. the Free
Encyclopedia. Web. 16 June 2010.
http://en.wikipedia.org/wiki/The_Natio_of_Go
ds_and_Earths. The defendants characterize the
material confiscated from Holley's cell as “Crip
gang literature and Five Percenter material.”
(Dkt. No. 34 at 31.)
*3 In deference to the expertise of prison officials in
managing the difficult challenges of prison administration,
even when a prison policy substantially burdens an
inmate's ability to practice his religious beliefs, the policy
withstands a First Amendment challenge so long as it is
rationally related to furtherance of a legitimate
governmental interest. O'Lone v. Estate of Shabazz, 482
U.S. 342, 349, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987);

Turner v. Safley, 482 U.S. 78, 89–91, 107 S.Ct. 2254, 96
L.Ed.2d 64 (1987). In Turner, the Supreme Court
identified four factors relevant to determining the
reasonableness of a challenged prison regulation: (1)
whether there is a “valid, rational connection” between the
regulation and a legitimate and neutral governmental
interest; (b) whether alternative means of exercising the
asserted constitutional right remain open to inmates; (c)
whether accommodating the asserted right will have a
deleterious impact on prison staff, on other inmates, and
on the allocation of limited prison resources; and (d)
whether the regulation represents an “exaggerated
response” to prison concerns, as reflected by the presence
of less restrictive alternatives that impose only “de
minimis cost to valid penological interests.” FN5 Id. at
89–91. “Where ... prison administrators draw distinctions
between publications solely on the basis of their potential
implications for prison security, the [regulation is]
‘neutral’ ” as required under the first Turner factor.
Thornburgh v. Abbott, 490 U.S. 401, 415–16, 109 S.Ct.
1874, 104 L.Ed.2d 459 (1989).
FN5. The magistrate judge bases her findings
and conclusions on Cartwright, without
discussing each of the four Turner factors as
applied to the facts in Holley's case. In turn, the
Cartwright decision did not expressly weigh all
four Turner factors, one by one, in reaching its
conclusion; however, the decision cites other
cases considering these factors and finding in
favor of prison officials. 2008 WL 2944668 at *2
n. 3 (citing other cases). In an abundance of
caution, the court will discuss each of the four
Turner factors in addressing Holley's objection
to the magistrate judge's report.
Defendants' evidence indicates that the VDOC has
established a zero tolerance policy for inappropriate or
criminal behavior committed by groups of inmates
meeting the statutory definition of a criminal street gang:
“Criminal street gang” means any ongoing organization,
association, or group of three or more persons, whether
formal or informal, (i) which has as one of its primary
objectives or activities the commission of one or more
criminal activities; (ii) which has an identifiable name or

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identifying sign or symbol; and (iii) whose members
individually or collectively have engaged in the
commission of, attempt to commit, conspiracy to
commit, or solicitation of two or more predicate
criminal acts, at least one of which is an act of violence,
provided such acts were not part of a common act or
transaction.
Va.Code Ann. § 18.2–46.1. Such groups are classified
as STGs, and their members are subject to severe
restrictions of property or activity related to gang
membership or involvement. Specifically, under the
VDOC's policy regarding STGs,
[t]he inmate population is prohibited from joining,
recruiting for, associating with, participating in or acting
in concert with any other individuals or group of
inmates who may constitute a gang. Furthermore,
[inmates] are prohibited from owning, creating,
possessing, or passing to others any correspondence,
documents, drawings, or symbols of any type that may
indicate gang involvement.
*4 (Dkt. No. 34 at 28.) The Five Percenters received
STG designation in the VDOC, based on officials' findings
that the group is a “separatist hate group that stresses
black supremacy” and that the group has disrupted orderly
operation of VDOC facilities in the past and actively
attempts to recruit members of other STGs.FN6 (Id.)
FN6. Defendants in the Cartwright case provided
additional information about the Five Percenters
that led to the group's classification as an STG
within the VDOC:
[T]he Five Percent organization ... is a radical
offshoot of the Nation of Islam which claims
to be non-religious in nature. The group uses
secret codes to communicate with the prison
environment, and uses a military type structure
or hierarchy of command. The VDOC has
taken measures to assess and identify a variety
of security threat groups, which are groups
which pose a threat to the security and
integrity of penal operations. The Five Percent
organization has been identified as a nationally
known security threat group, and in order to

curtail the organization of this group and to
discourage inmate membership, the VDOC by
policy prohibits inmate group meetings,
correspondence, and possession of literature
pertaining to this group.
2008 WL 2944668 at *2 n. 3. Other courts
have also noted evidence of the Five
Percenters' history of violent gang activity
among prison populations around the country.
See, e.g., Fraise v. Terhune, 283 F.3d 506,
511–13 (3d Cir.2002) (reporting examples of
violent and disruptive incidents involving Five
Percenter inmates).
As stated, Holley expressly does not challenge the
VDOC's classification of Five Percenters as an STG. This
determination reflects officials' finding that the Five
Percenters as a group present the same threats to prison
security and order as do other criminal gangs. Holley also
does not deny that officers confiscated his “religious”
materials only because they were identified as Five
Percenters material and not because of the content of the
materials. In so doing, in keeping with the first Turner
factor, officials furthered a neutral and legitimate security
interest in eliminating all indicators of STG association in
order to limit gang influence among the prison population
at Red Onion State Prison.
In consideration of the second Turner factor, it is true
that STG status prevents Holley from practicing some
aspects of his religious beliefs that he might be free to
practice outside the prison. In his unsworn response to
defendants' motion, Holley summarizes those beliefs as a
mandate to obtain knowledge, wisdom, and understanding
about the “God” within himself by reading and
contemplating Five Percenter literature and a duty to
educate and enlighten others about the Five Percenter
beliefs. Because the Five Percenters are classified as an
STG, however, Holley asserts that he is prohibited from
possessing any distinctive Five Percenter literature and
from meeting or corresponding with other members of the
Five Percenters, including religious leaders of the
group.FN7 Holley's submissions indicate, however, that his
personal religious practice also includes self-reflection and
self-development and the study of the Quran and the

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Divine Constitution of the Moorish Temple of America,
inasmuch as the Five Percenters are related to the Nation
of Islam and the Moorish Temple.FN8 These practices are
not prohibited by the STG policy. Thus, under the second
prong of the Turner analysis, while Holley suffers some
severe limitations to his ability to practice his Five
Percenter beliefs, he does retain other avenues for
religious exercise.
FN7. Holley also asserts that STG status
prevented him from receiving the religious diet
he requested. This aspect of his religious claims
will be separately addressed.
FN8. In applying for the Common Fare Diet,
Holley relied on the Quran and the Divine
Constitution, which he possessed and which are
not prohibited under the STG policy. (Dkt. No.
34, p. 74–80.)
Holley believes prison officials should ban only Five
Percenter material that specifically advocates violence.
Such an accommodation, however, would frustrate the
goal of the zero tolerance policy to eliminate all indicators
of gang affiliation, and reduce the effectiveness of the
policy in combating the dangers that the STG poses to
other inmates and staff. See In re Five Percenters, 174
F.3d at 470 (noting that because increased freedom for
STG members could come “only with the cost of
significantly less liberty and safely for everyone else,
guards and other prisoners alike,” the court properly
deferred to judgment of prison officials that Five
Percenters should be segregated from general population)
(quoting Turner, 482 U.S. at 92–93). Thus, the third and
fourth Turner factors weigh heavily in favor of prison
officials.
*5 Given that at least three of the Turner factors
weigh heavily on the side of defendant officials, the court
agrees with the magistrate judge that the VDOC policy
banning possession of written materials clearly identified
with an STG is rationally related to legitimate penological
interests and so withstands constitutional scrutiny under
the First Amendment. See Fraise, 283 F.3d at 519
(upholding ban on Five Percenter newspapers against First
Amendment challenge where inmates could possess,

study, and discuss the “Koran”); Johnson v. Stewart, No.
1:07–cv–77, 2008 WL 828086 (W.D.Mich.2008)
(rejecting First Amendment challenge to prison's
prohibition against inmates' possession of Five Percenter
newspapers as associated with STG); Cooper v. Starling,
2003 WL 23350443 (E.D.N.C.2003) (finding that prison
officials' confiscation of medallion bearing Five Percenter
symbol of crescent moon and five-pointed star did not
violate prisoner's free exercise rights). For the stated
reasons, the court will overrule Holley's objections, adopt
the report's findings as to his constitutional claims
regarding confiscation of his religious materials, and grant
defendants' motion for summary judgment as to these
claims.
2. RLUIPA
The magistrate judge finds genuine issues of material
fact in dispute as to whether the STG policy's ban against
Holley's possession of Five Percenter literature imposes a
substantial burden on his religious practice and as to
whether banning possession of Five Percenter material,
regardless of whether the content itself poses a security
threat, is the least restrictive means of furthering a
compelling governmental interest as required for a
RLUIPA claim under 42 U.S.C. § 2000cc(a)(1). (Report
13–14.) Therefore, she recommends denying summary
judgment as to Holley's claim that the confiscation of his
religious literature violates his rights under RLUIPA.
Neither party objects to this recommendation or to the
findings and conclusions on which it is based.
The magistrate judge's findings, conclusions, and
recommendation regarding the RLUIPA claim, however,
were rendered prior to receipt of Holley's concession that
he is not challenging the VDOC's classification of the Five
Percenters as an STG. Therefore, the court finds it
necessary to analyze plaintiff's claims under RLUIPA, de
novo.
RLUIPA prohibits governments from taking actions
that impose a “substantial burden on the religious exercise
of a person residing in or confined to an institution,”
unless the government demonstrates that imposition of that
burden furthers “a compelling governmental interest” by
“the least restrictive means.” 42 U.S.C.A. §
2000cc-l(a)(l)-(2). Its protections apply to programs or
activities that receive federal monies, such as the

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VDOC.FN9 § 2000cc–1(b)(1); Lovelace v. Lee, 472 F.3d
174, 186 (4th Cir.2006). Under RLUIPA, the inmate
plaintiff bears the burden of proving that the challenged
prison practice, or the denial of a religious
accommodation, places a substantial burden on his
exercise of sincere, religious beliefs. § 2000cc–2(b). Once
plaintiff carries this burden, the government must prove
that the imposition of the burden (or refusal to
accommodate plaintiff's belief) furthers a compelling
interest by the least restrictive means. Id .
FN9. The United States Court of Appeals for the
Fourth Circuit has ruled that RLUIPA does not
authorize claims for money damages against an
official who is sued in her individual capacity in
reliance on the Spending Clause facet of the
statute. Rendelman v. Rouse, 569 F.3d 182, 189
(4th Cir.2009). As Holley does not allege any
facts suggesting that his RLUIPA claim could
qualify under the alternative, Commerce Clause
section of the statute, see § 2000cc–1(b)(2), his
claims for monetary damages under RLUIPA are
foreclosed by the Rendelman decision.
*6 In applying these principles to the facts of Holley's
case, the court finds no genuine issue of material fact in
dispute as to whether the STG policy furthers a
compelling penological interest by the least restrictive
means. As stated, Holley does not now challenge the
VDOC's classification of the Five Percenters as an STG.
Moreover, given the evidence that the Five Percenters
have occasioned security concerns in VDOC facilities and
have posed longstanding, severe security problems in
other prisons around the country, the court concludes that
the stated security interest in limiting the influence and
growth of this threat group among the VDOC inmate
population is compelling. Furthermore, the court
concludes that the aspect of the STG policy prohibiting
inmates from affiliating with a gang or from possessing
any materials indicating gang affiliation furthers the stated
security interest. Logic dictates that if inmates cannot
easily identify which of their number are members of a
particular gang, the influence of the gangs will be
decreased.
Holley's RLUIPA argument is that banning all Five

Percenter publications does not further the prison's interest
by the least restrictive means, because the content of the
publications does not pose a security threat. This argument
ignores the fact that the documents seized from Holley are
themselves closely identified with the Five Percenters
group, just as the color-coded clothing worn by
well-known city gangs, like the Bloods and the Crips,
indicates membership in, or support for, those gangs.
Holley's mere possession of the confiscated items,
regardless of their written content, identified him as an
STG member or supporter, thereby furthering the presence
and influence of the STG itself. Allowing him to designate
a friend or family member to receive the confiscated
materials, as Holley requests, would deprive officials of
the opportunity to use the materials in further investigation
of Holley and other Five Percenter inmates and would
leave open a risk that the literature would be returned to
him surreptitiously. The court agrees that permitting
possession of such distinctive Five Percenter literature
would undermine the effectiveness of the STG policy in
reaching its goal to eliminate all indicia of gang affiliation
as a means of eliminating the gangs' power and the
dangers that accompany gang activity in prison. Holley
retains the ability to practice other aspects of his beliefs,
as discussed herein. Therefore, the court finds no genuine
issue of material fact in dispute and concludes that
defendants are entitled to summary judgment as a matter
of law as to Holley's claim that confiscation of his
religious materials violated RLUIPA.
3. Other claims
Holley does not object to the magistrate judge's
recommendation that defendants' motion for summary
judgment be granted as to his claims that confiscation of
his Five Percenter literature violated the Equal Protection
Clause or the Due Process Clause. (Report 14–16.)
Therefore, the court will adopt this portion of the report
and grant summary judgment for defendants as to these
claims.
*7 Holley objects to the magistrate judge's
recommendation that the motion for summary judgment be
granted as to Holley's claim that confiscation of his
literature violated the due process, equal protection, and
free exercise provisions of the Virginia Constitution,
Article 1, §§ 11 and 16. (Report 16–17.) This objection

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has no merit. Virginia courts have “consistently held that
the protections afforded under the Virginia Constitution
are co-extensive with those in the United States
Constitution.” Rowley v. Commonwealth, 48 Va.App. 181,
629 S.E.2d 188, 191 n. 2 (Va.App.2006) (omitting
citations). Therefore, the court will adopt this portion of
the report and grant defendants' motion for summary
judgment as to Holley's state constitutional claims
regarding confiscation of his literature.
Defendants are also entitled to summary judgment as
to Holley's related state law claim that the unlawful
confiscation of his religious literature constituted
conversion of his property.FN10 Conversion occurs after
“the wrongful assumption or exercise of the right of
ownership over goods or chattels belonging to another in
denial of or inconsistent with the owner's rights.”
Economopoulos v. Kolaitis, 259 Va. 806, 528 S.E.2d 714,
719 (Va.2000) (emphasis added). Because the court has
determined that confiscation of Holley's literature was not
“wrongful” under the constitution and RLUIPA, he cannot
maintain an action for conversion of that material. Id.
FN10. In light of her determination that
defendants' motion for summary judgment should
be denied as to Holley's RLUIPA claim, the
magistrate judge also recommends that summary
judgment be denied as to his conversion claim.
(Report 17.)
C. Denial of the Common Fare Diet (CFD)FN11
FN11. Defendants' evidence indicates that the
CFD is a special menu plan designed to
accommodate inmates' religious dietary needs
that cannot be met by the regular VDOC diet
menu.
1. First Amendment and RLUIPA
In Paragraph 26 of a numbered list entitled “Proposed
Findings of Fact and Conclusions of Law” at the end of
the report, the magistrate judge states that defendants'
motion “should be denied insofar as Holley claims the
denial of the CFD violated his constitutional rights or his
rights under the RLUIPA.” (Report 29.) (emphasis added).
Defendants object to this recommendation, arguing that it

is inconsistent with the magistrate judge's analysis and
findings elsewhere in the report, indicating that
defendants' motion should be granted as to Holley's claims
under federal law regarding the denial of the CFD. (See
Report 24–26, 29 ¶ 25.) In these earlier sections of the
report, the magistrate judge finds that Holley had failed to
present facts to prison officials or the court in support of
his allegation that denial of the CFD meals imposed a
substantial burden on his religious beliefs, an essential
element of a claim under the Free Exercise Clause or
RLUIPA. (Id.) Defendants ask the court to reject No. 26
of the listed findings on page 29 of the report, to adopt the
earlier findings, and grant summary judgment as to the
CFD claims. After de novo review, the court concludes
that defendants' objection must be sustained.
Inmates have a constitutional right and a statutory
right under RLUIPA to receive a nutritious diet in keeping
with their sincere religious beliefs. Lovelace v. Lee, 472
F.3d 174, 198–99 (4th Cir.2006); Ross v. Blackledge, 477
F.2d 616, 618–19 (4th Cir.1973). To succeed on a
constitutional or RLUIPA claim in this context, however,
an inmate must first demonstrate that the diet choices
already provided to him by the prison substantially burden
his religious practice.FN12 See Lyng v. Northwest Indian
Cemetery Protective Ass'n, 485 U.S. 439, 450, 108 S.Ct.
1319, 99 L.Ed.2d 534 (1988) ( “[I]ncidental effects of
government programs, which may make it more difficult
to practice certain religions but which have no tendency to
coerce individuals into acting contrary to their religious
beliefs” are insufficient to state a claim under Free
Exercise Clause); Lovelace, 472 F.3d at 187 (defining
RLUIPA term “substantial burden” as one that “puts
substantial pressure on an adherent to modify his behavior
and to violate his beliefs”) (omitting citations).
FN12. Prison officials need not provide an
inmate with a special religious diet if he can
voluntarily pick and choose among the items
offered on the regular prison menu and maintain
a nutritionally adequate diet in conformance with
his religious beliefs. See Abernathy v.
Cunningham, 393 F.2d 775, 778(4th Cir.1968).
*8 Holley first applied for the CFD in January 2008,
stating that his religion, Nation of the Gods and Earths,
required him to “refrain from eating the processed meats

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and unnaturally grown foods served in the regular
[VDOC] diet.” (Dkt. No. 34 at 74–75.) In his application,
he explained that the Nation of the Gods and Earths “is a
sect of the Moorish Science Temple of America and is
similar but slightly different from the Nation of Islam. But
we do adhere to some of the teachings and practices of the
Hon. Elijah Muhammad.” (Id. at 74.) The CFD
application form asked for documentation explaining and
verifying his religious need to participate in the CFD. In
response, Holley stated, “Yes, I have the Moorish Science
Temple Divine Constitution and By–Laws. I also possess
a Holy Quran which strictly prohibits the consumption of
a lot of foods served in the regular diet.” (Id.) Holley also
stated that “the Divine Constitution is clear in its teachings
that members are to keep their bodies clean and pure with
water and refrain from all forms of pork and foods which
are unnaturally grown .” (Id. at 75.) He explained on the
form that for the past several years at various VDOC
institutions, he had received the vegetarian menu, but had
eaten only the bread and vegetables.
The initial hearing officer and the warden both
disapproved Holley's CFD request, stating as a rationale:
“God of Earth is not a religion.” (Id. at 72.) Holley
appealed, and the Central Classification Services (CCS)
representative also disapproved his CFD request, stating
that CCS personnel had concluded from Holley's
submissions that his request was not “religiously
motivated,” based on “[l]ack of adequate documentation
that the religion to which you claim membership or
interest has a requirement for the Common Fare Diet.
Further, this religion is not recognized by the DOC.” FN13
(Id. at 73.)
FN13. Defendants' evidence indicates that the
CCS has final authority to decide whether or not
an inmate has demonstrated a religious need for
the CFD.
Holley reapplied to participate in the CFD program in
August 2008 .FN14 (Id. at 78–79.) This time, he described
his religion as Nation of Islam and stated that he had been
practicing this religion for almost four years. The warden
approved him to receive the CFD. The CCS representative
deferred the request on October 2, 2008, however, because
Holley had listed a different religious preference in his

January 2008 application for CFD participation. The CCS
representative stated:
FN14. Holley raises no claim in this lawsuit
concerning the deferment of his second request
for CFD participation in October 2008.
CCS would like to see 6 months participation by inmate
in religious services/programs/classes taking into
account his seg[regation] status. CCS would like for
subject to contact the Chaplain's office for religious
guidance/literature/information. Upon resubmission
please indicate if subject participated in Ramadan.
(Id. at 78.)0
The record thus reflects that when Holley first applied
for participation in the CFD in January 2008, his
documentation did not include any literature on the Nation
of Gods and Earths (Five Percenters) which indicated that
adherents of that belief system should eat foods consistent
with the CFD menu. Holley's application mentioned
documentation from related religious groups, but did not
explain the relationship between the dietary laws of these
other groups and those of his stated religious preference.
He also failed to explain in his application why he could
not meet his religious dietary needs by continuing to
receive the VDOC vegetarian menu. As he thus failed to
demonstrate to VDOC decision makers that denial of the
CFD substantially burdened his ability to practice his
stated religion, neither the First Amendment nor RLUIPA
required defendants to accommodate his dietary
preference.FN15 Lovelace, 472 F.3d at 187. Accordingly,
the court concludes that defendants are entitled to
summary judgment as a matter of law as to Holley's claims
that denial of the CFD violated his rights under the First
Amendment and RLUIPA. Defendants' objection to the
magistrate judge's contrary recommendation will be
sustained, and defendants' motion for summary judgment
will be granted as to these claims.
FN15. In denying defendants' motion for
summary judgment on the ground of qualified
immunity as to the CFD claim, the court relied
on plaintiff's allegations regarding his
discussions with prison staff. (Mem.Op.7–10,
Oct. 1, 2009.) Upon closer examination of the

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supporting information actually submitted by
Holley, however, the court agrees that plaintiff's
statements were not sufficient to make his case to
CCS officials in 2008 and that denying him
participation in the CFD did not substantially
burden his religious practice.

Constitution provides protections “co-extensive with those
in the United States Constitution”). Therefore, the court
will grant defendants' supplemental motion for summary
judgment as to Holley's state constitutional claims
regarding his religious diet.
D. Use of Ambulatory Restraints

2. Other claims
*9 The magistrate judge makes a separate finding that
denial of Holley's request for CFD participation did not
violate the Equal Protection Clause of the Fourteenth
Amendment. (Report 291 ¶ 24.) Her recommendation,
however, states that defendants' motion should be denied
as to Holley's “constitutional” claims related to his
religious diet. (Id. at ¶ 26.) Earlier portions of the report
discussing Holley's dietary claims, however, reflect sound
reasoning in support of granting summary judgment on
the Equal Protection claim, as well as the First
Amendment and RLUIPA claims. Therefore, the court
concludes that the magistrate judge's recommendation on
page 29 to deny summary judgment as to the constitutional
claims is a typographical error. Based on her finding that
Holley suffered no equal protection violation when his
CFD request was denied, the court will grant defendants'
motion for summary judgment as to this claim.
Holley also asserts that denial of his CFD request
violated his rights under Article 1, §§ 11 and 16 of the
Virginia Constitution—the equal protection and free
exercise provisions of this document. Defendants filed a
supplemental motion for summary judgment as to these
claims. Holley received notification of this motion as
required under Roseboro v. Garrison, 528 F.2d 309 (4th
Cir.1975) and has responded. He argues that defendants
waived their defense by failing to address the state
constitutional claims in their earlier motion. The court
finds, however, that granting leave for defendants to
pursue their supplemental motion furthers the interests of
justice and judicial economy. Inasmuch as the court has
determined that Holley has not established that denial of
his initial CFD request violated his rights under the Equal
Protection Clause or the Free Exercise Clause of the
United States Constitution, he cannot succeed on his claim
that denial of the diet violated his rights under the
analogous provisions of the Virginia Constitution.
Rowley. 629 S.E.2d at 191 n. 2 (finding that Virginia

Holley makes specific objections (1) to the magistrate
judge's findings that he does not show sufficient injury to
sustain Eighth Amendment claims for monetary damages
for unconstitutional living conditions or excessive force
related to defendants' use of ambulatory restraints,FN16 (2)
to her finding that he failed to state a due process claim
related to defendants' use of ambulatory restraints, and (3)
to her recommendation that summary judgment be granted
for defendants as to these claims. Accordingly, the court
must review these claims de novo.
FN16. The magistrate judge recommends: (a)
granting defendants' motion for summary
judgment as to Holley's conditions claim, based
on her finding that he failed to show any serious
injury resulting from the conditions; (b) denying
defendants' motion as to the excessive force
claim, because failure to show serious injury is
not decisive of such claims, see Wilkins v.
Gaddy, ––– U.S. ––––, ––––, 130 S.Ct. 1175,
1180, –––L.Ed.2d ––––, –––– (Feb. 22, 2010);
(c) granting defendants' motion as to Holley's due
process claims related to ambulatory restraints;
and (d) granting defendants' motion as to all
claims for monetary damages, pursuant to 42
U.S.C. § 1997e(e), based on her finding of no
physical injury.
1. Facts and Allegations
On September 29, 2007, at approximately 10:30 a.m.,
a prison official reported that Holley had been observed
smoking on the recreation yard. FN17 Staff escorted him to
the shower and conducted a strip search. Officers reported
finding a tobacco product in Holley's back pocket and
confiscated it. While the inmate remained in the shower
stall, staff conducted a shakedown of his cell to determine
if he possessed additional tobacco or other contraband.
Officers searched and inventoried Holley's property, and
in the process, they found and confiscated tobacco items

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and a folder of written materials that they classified as
“gang-related.” FN18
FN17. The facts relevant to these claims are
taken from plaintiffs pleadings and/or defendants'
affidavits and are undisputed unless otherwise
noted. While the report and the prior opinion
contain summaries of the evidence, the court
repeats this information here in order to put the
legal issues in context.
FN18. Holley denies that he was smoking or that
officers found any tobacco items in his pocket or
his cell. He points out that he did not receive a
disciplinary charge related to tobacco products or
other contraband.
*10 A short time later, around 12:30 p.m., staff
reported to Sgt. Hale that Holley had flooded his cell and
covered his cell window. Officers turned off the water to
Holley's cell. Sgt. Hale went to the cell and ordered Holley
to uncover his window, but Holley did not comply. Lt.
McCoy repeated the order for Holley to uncover his
window, but the inmate did not comply. Holley had also
blocked his tray slot, so officers could not see whether he
had anything in his hands. Advised of the situation,
Administrative Duty Officer Assistant Warden Rowlette
authorized placing Holley in ambulatory restraints because
of his disruptive behavior. Officers contacted medical and
mental health staff, who advised that there were no
medical or mental health reasons preventing the use of
ambulatory restraints on Holley.FN19
FN19. Medical staff reported that for medical
reasons, no OC pepper spray could be used on
Holley.
Lt. McCoy and a cell extraction team gathered at
12:55 p.m. in front of Holley's cell. Lt. McCoy ordered
Holley to back up to the tray slot so that handcuffs could
be applied to his wrists. Holley uncovered his window and
backed up to the tray slot as ordered. Officers escorted
him into the vestibule, where they ordered him to remove
his clothing and footwear and gave him a safety smock to
put on. He did so. Then, he knelt as ordered to allow the
officers to apply leg irons to his ankles. Meanwhile, other
officers cleaned and sanitized Holley's cell and removed

his property, including his mattress, as required for strip
cell status.
VDOC regulations state that ambulatory restraints are
used to control assaultive, disruptive, or unmanageable
inmates in situations where there is danger for them to
injure themselves or others. The restraints are not to be
used as punishment and are to be removed as soon as the
inmate's disruptive behavior has ceased and officers
determine that he is no longer a danger to himself or
others. In any event, such restraints must be removed after
48 hours absent approval from the regional director.
An inmate in ambulatory restraints has his hands
cuffed in front, double locked, with a black box covering
the center keyhole portion of the cuffs. He also wears leg
irons, with a security waist chain running through the
black box on the handcuffs and down to the leg irons. The
medical unit must advise security officers whether any
medical reason prevents use of ambulatory restraints, and
a nurse must examine the inmate to ensure that the
restraints are appropriately applied and that two fingers
can be placed under each cuff. Defendants maintain that
an inmate in ambulatory restraints can stand completely
upright, move around his cell, use the bathroom, wash
himself, and eat, but cannot lift his arms above his head,
swing his arms, or kick his feet. Holley asserts, however,
that the ambulatory restraints prevented him from standing
upright, which “caused tremendous back pain and muscle
stiffness/soreness from days of having to lean forward to
move around.” (Dkt. No. 57 at 54.) He also asserts that the
black box over the handcuffs “significantly restricts
movement of the arms and wrist and causes severe muscle
stiffness.” (Id.)
*11 Defendants state that an inmate in ambulatory
restraints in strip cell status can request soap or toilet
paper from staff when needed. These items are not left in
the cell, however, to prevent inmates from using them for
disruptive activities, such as covering the cell window or
stopping up the sink or toilet. Policy states that if the water
to the inmate's cell is turned off while he is in ambulatory
restraints, it should be turned back on every two hours,
before meal breaks. Defendants also state that the water
will be turned on if the inmate requests to wash himself or
use the toilet. Defendants state that an inmate on

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ambulatory restraints is to be offered the use of a mattress
at sleep time, approximately 10:00 p.m. each night. If he
accepts the mattress, it will be removed from the cell the
following morning at about 6:00 a.m.
After officers placed Holley in ambulatory restraints
on September 29, 2007, a nurse checked the restraints. She
was able to place two fingers under each cuff and noted
that Holley did not voice any complaints to her. While
Holley was in ambulatory restraints, staff checked on him
every fifteen minutes and noted his status in a logbook.
The cell check log for September 29 to October 1, 2007
included at least ten notations of Holley's disruptive
behavior observed during status checks, including use of
profanity toward staff, threatening staff with bodily harm
if he was released, and nonverbal actions such as banging
his restraints on items in his cell. The log book included
notations indicating that at 10:00 p.m. on September 29
and 30, 2007, staff members offered Holley a mattress, but
he refused it.
Inmates in ambulatory restraints are provided three
meals per day on a tray that includes an eating utensil (a
“spork”) wrapped in a napkin. In some cases, the spork is
omitted for mental health reasons. Records do not indicate
that Holley received a special meal tray for mental health
reasons while in restraints, so defendants' evidence is that
he would have received a spork with his meals.
In his complaint and his response to defendants'
motion, Holley alleges that he was held in ambulatory
restraints for two days in a cold cell without adequate
clothing, bedding, eating utensils, toilet paper, soap, other
hygiene products, or running water; that he had difficulty
sleeping “because of the agonizing stiffness of his muscles
and the cold temperature” in the cell; and that he was
unable to wipe himself or wash his hands after using the
toilet, thereby exposing him to a serious risk of a bacterial
infection.FN20 (Dkt. No. 1 at 16–26; Dkt. No. 57 at 52–79.)
He alleges that on both nights during the restraint period,
he asked officers for a mattress, but was not provided with
one. Holley admits that he flooded his cell and that he
initially did not comply with orders to back up to the tray
slot to be handcuffed. He denies, however, that he
displayed any disruptive behavior while he was being
placed in ambulatory restraints, that he used vulgar

language or made threats against staff while in ambulatory
restraints, or that he banged the restraints on anything in
his cell. Holley further asserts that defendants' status check
notes indicating that he engaged in disruptive behavior
while in restraints are “completely untrue.” (Dkt. No. 57
at 63.)
FN20. Holley also alleges that “a few times when
he was urinating ... urine accidently ran down his
leg because he was not in full control of the
direction since the use of his hands [was]
significantly restricted by the handcuffs and
‘black-box.’ ” (Dkt. No. 57 at 55.) He also
alleges that while in restraints, he asked
repeatedly for toilet paper and eating utensils
when he needed them, but officers refused to
provide them.
*12 Officers released Holley from ambulatory
restraints on October 1, 2007, at approximately 10:10 a.m.
A nurse checked him and noted that he had no injuries.
Holley complained to the nurse about pain and swelling in
his wrist. She did not note any swelling, but advised
Holley to use warm compresses. The swelling went away
within two or three days. Plaintiff states that he also
experienced “severe muscle stiffness, pain, and extreme
soreness and tenderness in his back, neck (from prolonged
sitting or laying in awkward positions), wrists, and ankles”
for about ten days. (Id. at 65.) Holley admits that he did
not seek additional medical treatment in order to avoid
being charged for it.
2. Eighth Amendment Claims
It is well established that “the unnecessary and
wanton infliction of pain ... constitutes cruel and unusual
punishment forbidden by the Eighth Amendment.”
Hudson v. McMillian, 503 U.S. 1, 5, 112 S.Ct. 995, 117
L.Ed.2d 156 (1992) (quoting Whitley v. Albers, 475 U.S.
312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)). Claims
under the Eighth Amendment have two components: (1)
the objective component, whether a prison official's
alleged wrongdoing was “objectively harmful” enough to
establish a constitutional violation, and (2) a subjective
component, whether the official “act[ed] with a
sufficiently culpable state of mind.” Id. at 8 (quoting

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Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115
L.Ed.2d 271 (1991)). The showing required for each of
these components varies with the context in which the
plaintiff's claim arises, and the nature of the objective
component requires comparison to “contemporary
standards of decency” in that context. Id. at 8.
a. Conditions

and smeared with urine and feces, with only cold food in
smaller portions, less frequent changes of linen and fewer
opportunities for recreation than the general population,
did not state Eighth Amendment conditions claim based
on lack of evidence that conditions “resulted in serious
physical or emotional injuries or the grave risk of such
harm”).

In the context of prison living conditions, an inmate
must establish by a preponderance of the evidence that the
prison official acted with deliberate indifference
(subjective component) to a substantial risk of harm
(objective component). Id. “To the extent that [prison
living] conditions are restrictive and even harsh, they are
part of the penalty that criminal offenders pay for their
offenses against society.” Rhodes v. Chapman. 452 U.S.
337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). To prove
deliberate indifference, the inmate must show that the
official was aware of facts from which he could draw an
inference that a substantial risk of harm existed, that he
actually drew that inference, and that he disregarded the
risk by failing to take “reasonable measures” to alleviate
the risk. Farmer v. Brennan, 511 U.S. 825, 835–37, 114
S.Ct. 1970, 128 L.Ed.2d 811 (1994). “[T]o demonstrate
that a deprivation is extreme enough to satisfy the
objective component of an Eighth Amendment
[conditions] claim, a prisoner must produce evidence of a
serious or significant physical or emotional injury
resulting from the challenged conditions.” Shakka v.
Smith, 71 F.3d 162, 166 (4th Cir.1995) (omitting internal
quotations).
The length of confinement under the challenged
conditions is also a factor to be considered. Hutto v.
Finney, 437 U.S. 678, 686, 98 S.Ct. 2565, 57 L.Ed.2d 522
(1978) (noting that confinement in “a filthy, overcrowded
cell and a diet of [1000 calories per day] might be
tolerable for a few days and intolerably cruel for weeks or
months”). Cf. Hope v. Pelzer, 536 U.S. 730, 122 S.Ct.
2508, 153 L.Ed.2d 666 (2002) (finding that inmate's
allegations of being handcuffed to hitching post in hot sun
for seven hours in awkward position with limited access to
bathroom facilities and drinking water, as punishment after
being disruptive during a work detail, satisfied subjective
and objective elements of Eighth Amendment conditions
claim); Beverati v. Smith, 120 F.3d 500, 505 n. 5 (4th
Cir.1997) (finding that inmates' alleged confinement for
six months in unbearably hot cells, infested with vermin

*13 Holly objects to the magistrate judge's finding
that he fails to demonstrate injury. He points specifically
to his allegations that being in awkward positions, without
adequate heat, clothing, or bedding, caused severe muscle
pain and stiffness for ten days. He also reemphasizes the
evidence that he received no toilet articles, hygiene
products, eating utensils, or running water, without
penological justification as he was allegedly not
misbehaving in any way, and that these conditions caused
severe emotional pain and exposure to bacterial infection.
The court finds no merit to Holley's objection. Unlike
the plaintiff in the Hope case, 536 U.S. at 730, Holley was
free to change position extensively while in restraints, as
he could stand or sit or recline on his bunk. If he chose to
remain in awkward positions, he cannot blame his sore
muscles on defendants. By his own admission, the injury
to his wrist caused by the handcuffs did not require
medical treatment and subsided completely within days.
This evidence simply does not support a finding that the
ambulatory restraints caused Holley any significant or
serious injury, as required to state an Eighth Amendment
conditions claim.FN21 Shakka, 71F.3d at 166.
FN21. In denying summary judgment on the
ground of qualified immunity, the court relied on
Sadler v. Young, 325 F.Supp.2d 689
(W.D.Va.2004), rev'd on other grounds by 118
Fed. App'x 762 (4th Cir.2005) (unpublished).
(Mem.Op.7, Oct. 1, 2009.) Upon consideration
of the record which now exists in this case,
however, the court concludes that the facts in
Holley's case are distinguishable from Sadler,
which involved a more restrictive form of
restraints.
Similarly, unlike the Hope case, Holley had regular
access to food and liquids, could deposit his bodily waste

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in a toilet, and was not exposed to the hot sun without
protection. He fails to demonstrate that any of the strip cell
conditions, including deprivation of mattress and eating
utensils, caused him anything more serious than temporary
discomfort and embarrassment. The emotional effect of
not being able to wipe himself, direct his urine, or eat with
utensils does not compare with the level of humiliation at
issue in Hope, where the inmate had no independent
access to a toilet. Id. Simply put, the conditions and
emotional stress Holley faced in ambulatory restraints are
more analogous to the type of temporary discomforts and
inconveniences at issue in the Beverati case, which the
Fourth Circuit expressly found insufficient to support an
Eighth Amendment conditions claim. 120 F.3d at 505 n.
5. While the Beverati inmates were not cuffed and
shackled, they were subjected to the adverse conditions for
a much longer period of time than Holley. For these
reasons, Holley's objection must be overruled. The court
will adopt the portion of the magistrate judge's report
finding that Holley suffered no serious or significant
physical or emotional injury as a result of the conditions
to which he was subject in ambulatory restraints and will
grant defendants' motion for summary judgment as to this
claim.
b. Excessive Force
In the context of excessive force, the appropriate
inquiry for the subjective component of an Eighth
Amendment claim is whether the prison official “applied
[force” in a good faith effort to maintain or restore
discipline or maliciously and sadistically for the very
purpose of causing harm.” Hudson, 503 U.S. at 6–7. The
court must consider such factors as the amount of force
used as related to the need for force, the threat reasonably
perceived by the officers, and any attempts the officers
made to “temper the severity of a forceful response.”
Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir.1996).
*14 To prove the objective component of his
excessive force claim, the inmate “must show that
correctional officers' actions, taken contextually, were
‘objectively harmful enough’ to offend ‘contemporary
standards of decency.’ ” Stanley v. Hejirika, 134 F.3d 629,
634 (4th Cir.1998) (quoting Hudson, 503 U.S. at 8). The
objective component of an excessive force claim “can be
met by the pain itself, even if an inmate has no enduring

injury.” Williams, 77 F.3d at 762 (omitting internal
quotations). On the other hand, “[t]he Eighth
Amendment's prohibition of ‘cruel and unusual’
punishments necessarily excludes from constitutional
recognition de minimis uses of physical force, provided
that the use of force is not of a sort ‘repugnant to the
conscience of mankind.’ ” Hudson, 503 U.S. at 9–10
(omitting citation). “From the nature of an inmate's injury
or lack of injury, the court may draw inferences “as to
whether the use of force could plausibly have been thought
necessary, or instead evinced such wantonness with
respect to the unjustified infliction of harm as is
tantamount to a knowing willingness that it occur.”
Whitley, 475 U.S. at 321. Prison administrators are
entitled to broad deference in determining what policies
and practices are necessary to preserve or restore security
and order. Stanley, 134 F.3d at 634.
In short, the “core judicial inquiry [is] ... the nature of
the force—specifically, whether it was nontrivial and was
applied ... maliciously and sadistically to cause harm.”
Wilkins v. Gaddy, ––– U.S. ––––, 130 S.Ct. 1175, 1179,
––– L.Ed.2d –––– (2010). The extent of the injury the
inmate suffered is relevant to both of these determinations:
as a factor in determining “whether use of force could
plausibly have been thought necessary in a particular
situation” and as “some indication of the amount of force
applied.” Id. at 1178.
The magistrate judge correctly finds that failure to
show serious injury does not, by itself, preclude an
excessive force claim. Wilkins, 130 S.Ct. at 1180. Taking
the evidence in the light most favorable to Holley, the
court concludes, however, that the only reasonable
inference to be drawn from the type and extent of the
injuries Holley has proven is that application of
ambulatory restraints for 48 hours is not a use of force that
offends contemporary standards of decency so as to satisfy
the objective component of an excessive force claim. It is
undisputed that the restraints are designed and applied to
limit an inmate's movements and not to inflict any measure
of physical harm on him. The restraints themselves do not
prevent the restrained inmate from changing position,
stretching his muscles, eating his meals, sleeping, or using
the toilet. To the extent that the restraints make these
functions less comfortable and more difficult to execute

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effectively, they fall squarely among those conditions of
prison life that are “restrictive and even harsh” without
rising to the level of unconstitutional punishment. Rhodes,
452 U.S. at 347. In response to an inmate's admittedly
disruptive misconduct, a temporary limitation of an
inmate's access to hygiene products, bedding, eating
utensils, and freedom of movement, which causes the
inmate no physical injury other than temporary discomfort
and embarrassment, simply cannot qualify as a use of
force that is “repugnant to the conscience of mankind.”
FN22
FN22. This finding comports with the past
precedent of this court, which has repeatedly
held that the extended use of ambulatory
restraints which does not result in significant
physical injury is a de minimis use of force that
does not satisfy the objective component of an
Eighth Amendment excessive force claim. See,
e.g., Johnson v. O'Brien, Case No.
7:08CV00022, 2008 WL 2199275, *4 (W.D.Va.
May 27, 2008) (Turk, J.) (finding no Eighth
Amendment excessive force claim where
plaintiff alleged use of ambulatory restraints for
six hours caused lower back muscle strain and
swollen wrists for which he sought no medical
treatment); Henderson v. Commonwealth, Case
No. 7:07CV00266, 2008 WL 204480, *8
(W.D.Va. Jan. 23, 2008) (Conrad, J.) (finding
that use of ambulatory restraints for nine hours in
cold cell without bedding or clothing was not
Eighth Amendment violation where inmate
alleged suffering only pain and stiffness for
which he did not seek medical treatment); Blount
v. Williams. Case No. 7:05CV00556, 2007 WL
951555, (W.D.Va. March 26, 2007) (Conrad, J.)
(finding that use of ambulatory restraints for 24
hours was not excessive force where inmate
suffered no injuries); Madison v. Kilbourne,
Case No. 7:04CV00639, 2006 WL 2037572, *6
(W.D.Va. July 18, 2006) (Turk, J.) (finding de
minimis injury resulting from inmate's being held
in ambulatory restraints for 14 hours supporting
conclusion that force used was also de minimis ),
aff'd on this ground, vacated in part and
remanded as to another claim, 228 Fed. App'x
293, *1 (4th Cir.2007); Teal v. Braxton, Case

No. 7:04CV00406, slip op., 9–10 (W.D.Va. Feb.
27, 2006) (unpublished Report and
Recommendation, adopted by district court
judge's order) (Wilson, J.) (finding that de
minimis injury caused by use of ambulatory
restraints for 24 hours indicated amount of force
was also de minimis and method of restraint was
not repugnant to standards of decency; report
adopted by district judge by order entered March
17, 2006); Keyes v. O'Brien, Case No.
7:06CV00437, slip op. at *4 (W.D.Va. July 27,
2006) (Kiser, J.) (finding no constitutional
violation where inmate restrained for 30 hours in
ambulatory restraints, because inmate suffered de
minimis injury and nature of force was not
repugnant to conscience of mankind).
These prior ambulatory restraints decisions
relied, in part, on a line of cases decided by the
United States Court of Appeals for the Fourth
Circuit, which interpreted Hudson v.
McMillian, 503 U.S. 1, 112 S.Ct. 995, 117
L.Ed.2d 156 (1992), as supporting a rule that
an inmate cannot succeed on his § 1983
excessive force claim if his injuries were,
objectively, de minimis. See Taylor v.
McDuffie, 155 F.3d 479, 483 (4th Cir.1998);
Riley v. Dorton, 1159 F.3d 1159, 1166 (4th
Cir.1997); Norman v. Taylor, 25 F.3d 1259,
1962 (4th Cir.1994). On February 22, 2010,
the United States Supreme Court issued its
decision in Wilkins, rejecting this Fourth
Circuit interpretation of Hudson. 130 S.Ct. at
1178. As indicated in the parentheticals,
however, in most cases, the court also
considered the lack of injury as a factor in
determining the objective element of the claim,
just as Wilkins requires. Id. at 1178.
*15 Because Holley fails to present evidence
establishing the objective component of his excessive
force claim, defendants are entitled to summary judgment
on this claim without further consideration of the
subjective component of the claim. As such, the disputes
between the parties concerning Holley's conduct before
and during the restraint period are not material to the

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court's decision here. Even if Holley, once restrained, did
not exhibit any further physical or verbal behavior
suggesting he would injure himself or others if not
restrained, the nature of the restraints themselves and their
temporary application did not result in more than a de
minimis amount of force and were therefore not
objectively harmful enough to support an excessive force
claim.FN23 The court will grant defendants' motion for
summary judgment as to this claim.
FN23. As stated, in denying defendants' motion
on grounds of qualified immunity, the court
relied on the Sadler decision to find that Holley's
allegations stated a cognizable excessive force
claim. 325 F.Supp.2d 689. Based on all the
evidence now of record, including that adduced
before the magistrate judge, the court finds
Holley's excessive force claim to be materially
distinguishable from the Sadler case, and from
Williams, 77 F.3d 756, the case on which Holley
primarily relies. The facts of these two cases vary
in critical respects from Holley's situation.
Inmate plaintiffs in Sadler and in Williams, who
had all four limbs strapped to a bed, could not
change position and did not have independent
access to a toilet during the restraint period. 77
F.3d at 760, 325 F.Supp.2d at 690. In contrast,
Holley's restraints did not prevent him from
performing these functions whenever he desired.
Additionally, Holley's evidence of pain resulting
from the restraint period pales in comparison to
the evidence adduced in Sadler regarding the
adverse physical and mental effects caused by
the 47–hour restraint period in that case. 325
F.Supp.2d at 698.
3. Due Process
The magistrate judge recommends granting summary
judgment as to Holley's claim that defendants violated his
due process rights, in reliance on precedent from this
court. See Johnson v. O'Brien, Case No. 7:08CV00022
(W.D.Va.2009) (finding no due process violation where
inmate was held six hours in ambulatory restraints and
three days in a stripped cell without a hearing). Holley
objects, asserting that he was entitled to a hearing at some
point during the 48–hour restraint period, in order to

demonstrate that the restraints were no longer warranted
by his conduct. He argues that confinement in restraints
for two days, coupled with the stripped cell conditions,
was “atypical” so as to give rise to due process
protections. The court cannot agree.
A prisoner has no constitutionally protected liberty
interest in remaining in a particular housing assignment.
See Gaston v. Taylor, 946 F.2d 340, 343 (4th Cir.1991).
Changes “in a prisoners' location, variations of daily
routine, changes in conditions of confinement (including
administrative segregation), and the denial of privileges
[are] matters which every prisoner can anticipate [and
which] are contemplated by his original sentence to
prison.” Id. at 343. Liberty interests can arise from two
sources, the Due Process Clause itself and state law.
Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132
L.Ed.2d 418 (1995). The Due Process Clause may create
a liberty interest when the restraint imposed upon an
inmate exceeds his sentence in an “unexpected manner.”
Id. State prison policies may also create liberty interests
that are protected by the Due Process Clause when they
“impos[e][an] atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.”
Id. at 484–86 (holding that prisoner had no liberty interest
in being free from segregated confinement because it did
not exceed his sentence or constitute an atypical,
significant deprivation under state prison regulations).
To determine whether an inmate possessed a liberty
interest protected by the Due Process Clause in avoiding
a form of restraints, the court must “compare the
conditions to which [he was] exposed in [the challenged
restraints] with those [he] could expect to experience as an
ordinary incident of prison life.” Beverati, 120 F.3d at
503. Despite dire conditions that the inmate plaintiffs in
the Beverati case allegedly suffered in administrative
segregation, the court found that while the conditions
“were more burdensome than those imposed on the
general prison population, they were not so atypical that
exposure to them for six months imposed a significant
hardship in relation to the ordinary incidents of prison
life.” Id. at 504.
*16 The Fourth Circuit has affirmed at least two
judgments in which this court held that relatively lengthy
periods in ambulatory restraints and confinement under

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conditions similar to those alleged by Holley were not so
atypical as to create a protected liberty interest. See
Madison v. Kilbourne, Case No. 7:04CV00639, 2006 WL
2037572, *6 (W.D.Va.2006) (Turk, J.) (finding no due
process violation where inmate was held in ambulatory
restraints for 14 hours without a hearing), aff'd on this
ground, vacated in part and remanded as to another
claim. 228 Fed. App'x 293, *1 (4th Cir.2007); Moore v.
Miller, Case No. 7:08CV00614, 2009 WL 113258
(W.D.Va.2009) (Conrad, J.) (finding no due process
violation where inmate was held in ambulatory restraints
for 26 hours without a hearing), aff'd, 349 Fed App'x 815
(4th Cir.2009).
Holley offers nothing to support a different holding in
this case. As a segregation inmate at a maximum security
prison, he is in leg irons with his hands cuffed behind his
back, every time he leaves his cell, where he spends 23 out
of 24 hours per day, unless he is in another secure area,
such as the shower or recreation cage. When an inmate is
transported to a situation where he needs to be in a sitting
position in a chair, such as an attorney visit or a dental
examination, supervisory officials may approve restraining
him with his hands cuffed in front of his body and attached
to a waist chain. Compared to an environment where such
restrictive conditions are a daily occurrence, even for
administrative reasons absent an inmate's misconduct, the
court cannot find that the additional, temporary restriction
of ambulatory restraints, which cause no physical injury
and allow extensive freedom of movement, is so atypical
as to “impose a significant hardship in relation to the
ordinary incidents of life.” Beverati, 120 F.3d at 504.
For the stated reasons, the court will overrule Holley's
objection, adopt the portion of the report addressing this
claim, and grant defendants' motion for summary
judgment as to the Due Process claim regarding
ambulatory restraints.

state law claims which were raised in the complaint, but
were not addressed in defendants' motions for summary
judgment. Such claims will be dismissed without
prejudice, pursuant to 28 U.S.C. § 1367(c).
FN24. Holley alleges that the use of ambulatory
restraints against him violated his rights under
Article I, Sections 1, 9, and 11 of the Virginia
Constitution and constituted the tort of battery.
He also alleges that the conditions of
confinement to which he was subject while in
ambulatory restraints violated Article I, Sections
1, 9, and 11 of the Virginia Constitution and
constituted the tort of negligence under state law.
(Dkt. No. 1 at 33–35.)
III. Conclusion
For the stated reasons, the court will adopt the
portions of the magistrate judge's report that are consistent
with this memorandum opinion, and will grant defendants'
motions for summary judgment as to all of plaintiff's
claims under federal law. An appropriate order will issue
this day.
*17 The plaintiff is advised that he may appeal this
decision pursuant to Rules 3 and 4 of the Federal Rules of
Appellate Procedure by filing a notice of appeal with this
court within 30 days of the date of entry of this
memorandum opinion and the accompanying order, or
within such extended period as the court may grant
pursuant to Rule 4(a)(5).
The Clerk is directed to send copies of this
memorandum opinion and the accompanying final order
to plaintiff and counsel of record for defendants.
FINAL ORDER

4. State Law Claims

In accordance with the accompanying memorandum
opinion, it is hereby
ADJUDGED AND ORDERED

Defendants did not move for summary judgment as to
Holley's state law claims related to the ambulatory
restraints incident.FN24 As the court has determined,
however, that defendants are entitled to summary
judgment as to Holley's claims under federal law, the court
declines to exercise supplemental jurisdiction over any

as follows:
1. After de novo review of the portions of the Report
and Recommendation of the United States Magistrate
Judge to which the parties have objected, plaintiffs
objections are overruled; defendants' objection is
sustained, the Report (Dkt. No. 108) is ADOPTED to the

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extent that it is consistent with the accompanying
memorandum opinion; and defendants' motions for
summary judgment (Dkt. Nos. 33, 94, and 110) are
GRANTED;
2. Plaintiff's supplement claims under state law that
are not addressed in defendants' motions for summary
judgment are DISMISSED without prejudice, pursuant to
28 U.S.C. § 1367(c); and
3. This action is stricken from the active docket of the
court.
The clerk shall send a certified copy of this final order
and the accompanying memorandum opinion to plaintiff
and to counsel of record for the defendants.
W.D.Va.,2010.
Holley v. Johnson
Not Reported in F.Supp.2d, 2010 WL 2640328 (W.D.Va.)
END OF DOCUMENT

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