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 (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s), # 5 Unpublished Opinion(s))(bs)

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MEMORANDUM OPINION
Only the Westlaw citation is currently available.
United States District Court, W.D. Virginia,
Roanoke Division.
Terry J. MOORE, Plaintiff,
v.
Corrections Officer J. MILLER, et al., Defendants.
No. 7:08CV00614.
Jan. 15, 2009.
West KeySummaryPrisons 310

127

310 Prisons
310II Prisoners and Inmates
310II(B) Care, Custody, Confinement, and Control
310k127 k. Shackles or Other Restraints. Most
Cited Cases
(Formerly 310k13(4))
Sentencing and Punishment 350H
1549
350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in General
350HVII(H) Conditions of Confinement
350Hk1549 k. Physical Restraints. Most Cited
Cases
Prison guards did not use excessive force under the
Eighth Amendment against an inmate in a maximum
security prison by placing him in four-point restraints after
a stand off in which the inmate demanded to speak to the
sergeant and allegedly spit at one of the guards. The
inmate suffered only slight scratching on his wrists and
discomfort from the handcuffs which were too tight until
they were replaced with soft restraints later in the day.
Further, the inmate did not indicate that he sought or
required medical treatment at any time during or after the
restraint period ended. U.S.C.A. Const.Amend 8; 42
U.S.C.A. § 1983.
Terry J. Moore, Pound, VA, pro se.

GLEN E. CONRAD, District Judge.
*1 Plaintiff Terry J. Moore, a Virginia inmate
proceeding pro se, brings this civil rights action pursuant
to 42 U.S.C. § 1983, with jurisdiction vested pursuant to
28 U.S.C. § 1343. In his complaint, plaintiff alleges that
the defendant prison officials at Red Onion States Prison
(“Red Onion”) used excessive force against him and
deprived him of liberty interests without due process when
they held him in ambulatory restraints for 26 hours. He
seeks monetary, declaratory, and injunctive relief. Upon
consideration of the complaint, the court finds that this
action should be dismissed pursuant to 28 U.S.C. §
1915A(b)(1) for failure to state a claim upon which relief
may be granted.FN1
FN1. A complaint filed by an inmate challenging
the conduct of an “officer or employee of a
governmental entity” may be dismissed under §
1915A(b)(1) if the complaint is “frivolous,
malicious or fails to state a claim upon which
relief may be granted.”
Background
Moore alleges the following sequence of facts in his
complaint. On December 13, 2007, Moore placed his arm
in the “chuck hold box” and told Officers Miller, Brown,
and Taylor to contact the sergeant for him. The officers
leaned on the box, applying pressure to Moore's arm and
threatened to put him in ambulatory restraints if he did not
remove his arm from the box. Moore refused, using
profanity, and said he would not move his arm until he
was allowed to speak to the sergeant. This standoff
continued for five or ten minutes. Then, Miller threatened
to charge Moore with spitting on him. Moore used
profanity again, leaned into the crack of the door, and
made a spitting sound. Moore explains that the outside of
his cell door has a metal belt along its side. He remembers
that Miller was standing farthest away from the door
crack. However, Miller called Sgt. Day and reported that
Moore had spit on him through the door crack. Day told
Miller to go to medical to be “checked out.” Day then

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turned to Moore and told him that if he would pull his arm
out of the box, Day would speak with him as requested.
Moore did so and then spoke with Day for several
minutes. Lt. Harrison called over the radio and asked Day
if there was a problem. Day said, “Not now,” Harrison
told Day to place Moore in four-point restraints for
spitting on Miller. Day told Harrison that Moore had
pulled his arm out of the box as directed, but Harrison
confirmed that Assistant Warden Rowlett had ordered
four-point restraints for Moore. Day told Moore to “cuff
up” to be placed in restraints for spitting on Miller, and
Moore complied.
Moore describes the restraint process as follows.
First, the inmate is ordered to remove his clothes. Then, he
is cuffed and shackled with his hands in front. A chain is
wrapped around the cuffs and shackles and secured with
a black box over the cuffs. Once the restraint procedure is
complete, the officers drape and secure a “suicide blanket”
over the inmate, who is left bent slightly at the waist. Once
the process is complete, the inmate is escorted to a cell
where he remains for a time. Moore believes that the
ambulatory restraints are used only when an inmate poses
a threat to himself, another individual, or property.
*2 After Moore was restrained in this manner, a nurse
checked his cuffs, but did not loosen them after Moore
told her they were too tight. Moore remained in restraints
for approximately 26 hours; he calls it “sadistic torture.”
About 3:00 p.m., an officer escorting the nurse on pill call
noticed that Moore's wrists were bleeding from the cuffs
being too tight. Officers then placed Moore in “soft cuff
restraints.” The restraints were fully removed around 4:00
p.m. on December 14, 2007.FN2
FN2. Moore's complaint says the restraints were
removed on December 14, 2008, but in other
places, he says he was restrained for two days,
not a year.
Moore filed an informal complaint to the institutional
investigator, who responded that Moore had been charged
with two disciplinary infractions in connection with the
restraints incident. These charges were never served on
Moore and are not “on file.”
Moore brings the following claims related to the

restraints incident:
1. Placement of ambulatory restraints for spitting out of
the side of the door was cruel and unusual punishment.
2. Because Moore received no hearing before being
placed in ambulatory restraints, the officers deprived
him of liberty without due process.
3. Miller falsely accused Moore of spitting on him
through the door crack, and Lt. Harrison and Sgt. Day
knew the accusation was false, but nevertheless carried
out the punishment as ordered by the assistant warden,
which was cruel and unusual punishment and a violation
of due process.
Moore seeks monetary damages and an injunction
directing that he be transferred to a lower security facility
within thirty days from judgment in his favor in this case.
The court filed Moore's complaint conditionally and
advised him of the need to amend to state specific facts
about the extent of his injuries, what requests he made
regarding the tightness of the cuffs, and what responses he
received. Moore responded, asserting that he did not need
to amend, that he had made a clear statement of his claims.
Discussion
To state a cause of action under § 1983, a plaintiff
must establish that he has been deprived of rights
guaranteed by the Constitution or laws of the United States
and that this deprivation resulted from conduct committed
by a person acting under color of state law. West v. Atkins,
487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988).
Factual allegations in support of a civil claim must be
enough to raise a right to relief above the speculative level
and have “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, ––––, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929
(2007).
A. Excessive Force
The Eighth Amendment prohibits prison officials
from using force unnecessarily and wantonly to inflict pain
on inmates. Whitley v. Albers, 475 U.S. 312, 319, 106
S.Ct. 1078, 89 L.Ed.2d 251 (1986). A claim that guards

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used excessive force against an inmate requires a dual
inquiry: (1) the objective nature of the force used and the
resulting harm and (2) the subjective intent of the officers.
Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 117
L.Ed.2d 156 (1992). The key inquiry under the subjective
prong of this test is “whether the force was applied in a
good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.” Id. at 8. In
making this determination, the court must balance such
factors as the need for the application of force, the
relationship between the need and the amount of force
actually applied, and the extent of injury inflicted. Id. at 7.
De minimis injury can be conclusive evidence that the
force used was also de minimis and, therefore, not
violative of constitutional protections. See Norman v.
Taylor, 25 F.3d 1259, 1263 (4th Cir.1994). Thus, absent
the most extraordinary circumstances, an inmate cannot
prevail on an excessive force claim unless he proves more
than de minimis pain or injury. Id. The use of restraints to
control prison inmates is not per se unconstitutional.
Williams v. Benjamin, 943 F.2d 1572, 761 (4th Cir.1991).
*3 Moore simply does not allege that he suffered any
significant injury while in restraints. He complains that the
cuffs were too tight and that he immediately complained
to the nurse, who checked them and thought they were
fine. Later in the day, an officer noticed that Moore's
wrists were bleeding and replaced the metal cuffs with soft
restraints. Even after the court advised Moore of the need
to state specific facts about the nature of his injuries, he
failed to do so. Although he refers to ambulatory restraints
as “sadistic torture,” he fails to state any specific facts in
support of this conclusory characterization. He does not
allege facts indicating that he suffered anything more than
a slight scratch and discomfort from the cuffs. He does not
indicate that he sought or required medical treatment at
any time during or after the restraint period. In short,
Moore fails to allege facts on which he could prove that he
suffered more than de minimis injury from his hours in
ambulatory restraints. Thus, the court must dismiss his
Eighth Amendment claim, pursuant to § 1915A(b)(1), as
his allegations fail to support any such claim. FN3 See, e.g.,
Madison v. Kilbourne, Case No. 7:04CV00639, 2006 WL
2037572, No. *6 (W.D.Va.2006) (finding that 14–hours
in ambulatory restraints was not excessive force), aff'd on
this ground, opinion vacated in part and remanded as to
other claims, 228 Fed. App'x 293, *1 (4th Cir.2007).

FN3. Because Moore does not allege facts on
which he could prove that he suffered any
significant injury from the ambulatory restraints,
his complaint also fails to state any Eighth
Amendment claim that the living conditions
while in the restraints were cruel and unusual.
See Strickler v. Waters, 989 F.2d 1375,
1380–1381 (4th Cir.1993) (finding that to satisfy
state Eighth Amendment claim regarding prison
living conditions, inmate must show that he
sustained serious or significant physical injury
resulting from challenged conditions).
B. Due Process
“The Due Process Clause standing alone confers no
liberty interest in freedom from state action taken within
the sentence imposed.” Sandin v. Conner, 515 U.S. 472,
480, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). (quotation
marks and citation omitted). “Discipline by prison officials
in response to a wide range of misconduct falls within the
expected perimeters of the sentence imposed by a court of
law.” Id. at 485. “[T]he Constitution itself does not give
rise to a liberty interest in avoiding transfer to more
adverse conditions of confinement.” Wilkinson v. Austin,
545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174
(2005).
[Inmates' liberty] interests will be generally limited to
the freedom from restraint which, while not exceeding
the sentence in such an unexpected manner as to give
rise to protection by the Due Process Clause of its own
force, nonetheless imposes atypical and significant
hardship on the inmate in relation to the ordinary
incidents of prison life.
Sandin, 515 U.S. at 484. 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.” Gaston v. Taylor, 946 F.2d
340, 343 (4th Cir.1991).
Moore alleges that he should have been afforded a hearing
before being placed under the restrictive conditions
imposed by the ambulatory restraints for such a lengthy

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period of time. He admits, however, that he disobeyed a
direct order to remove his arm from the box in a defiant
attempt to force the officers into allowing him to speak to
the sergeant. He also admits that he made a spitting
gesture toward Miller, in defiance of Miller's threat to
place him in ambulatory restraints, and made threatening
and profane remarks to the officers. He admits that
ambulatory restraints are used for inmates who pose a
threat to others. Balancing these factors, the court cannot
find that the ambulatory restraint conditions of which
Moore complains were atypical so as to give rise to a
protected liberty interest under the circumstances he
alleges. The court concludes that he received the exact
treatment that his threatening behavior and comments
warranted under the established and well known practice
of Red Onion as a maximum security prison.FN4 Madison,
2006 WL 2037572, *7 (finding that 14–hour stint in
ambulatory restraints did not trigger federal due process
right under Sandin). Thus, the application of ambulatory
restraints did not trigger any federal due process right to
a pre-restraint hearing. The court will dismiss all due
process claims accordingly, pursuant to § 1915A(b)(1).

opinion and accompanying order to plaintiff.
W.D.Va.,2009.
Moore v. Miller
Not Reported in F.Supp.2d, 2009 WL 113258 (W.D.Va.)
END OF DOCUMENT

FN4. Moore's case is distinguishable from the
case of Williams v. Benjamin, 943 F.2d 1572
(4th Cir.1991), in which the inmate had been
involved in a prison disturbance, was sprayed
with mace, and then strapped to a metal bed
frame for eight hours. The Fourth Circuit found
that any procedural due process claim in the
Benjamin case rested squarely on the fact that
restraining an inmate to a bed for hours was
restricted by written policy for use in very
limited circumstances. Id. at 769–70. As stated,
Moore asserts that ambulatory restraints are
authorized for use when an inmate poses a threat
to persons or property, as he did.
Conclusion
*4 For the stated reasons, the court concludes that the
complaint in its entirety must be dismissed, pursuant to §
1915A(b)(1), as the allegations do not support the
elements of the claims Moore asserts. An appropriate
order shall be issued this day.
The Clerk is directed to send copies of this memorandum

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.