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 (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s), # 5 Unpublished Opinion(s))(bs)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.
James M. KEYES, Plaintiff,
v.
Terry O'BRIEN, et al., Defendants.
No. CIVA 7:06CV00437.
July 27, 2006.
James M. Keyes, Jonesville, VA, pro se.
MEMORANDUM OPINION
KISER, Senior J.
*1 Plaintiff James M. Keyes, brings this against
federal officials pursuant to Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91
S.Ct. 1999, 29 L.Ed.2d 619 (1971), with jurisdiction
vested under 28 U.S.C. § 1331. Keyes alleges that the
defendants subjected him to cruel and unusual punishment
by refusing to house him in a single man cell and then in
subsequently placing him in a holding cell in the Special
Housing Unit. As relief, Keyes seeks $ 57,000 in damages.
Upon review of the record, I conclude that the plaintiff has
not stated a claim upon which relief can be granted and,
therefore, dismiss the complaint without prejudice,
pursuant to 28 U.S.C. § 1915A(b)(1).
I.
Keyes complains that in February, 2005 he arrived at
the United States Penitentiary, Lee County (“USP Lee”)
and was placed in a two man cell, but did not have a cell
mate. However, on August 8, 2005, Keyes was advised
that he was going to be transferred to another cell and
would be assigned a cell mate. Keyes alleges that he
informed correctional personnel that due to “psychological
reasons” he could not have a cell mate and physically
resisted being removed from his cell and placed in another
cell. Because of his resistance, Keyes was temporarily
placed in a holding cell with allegedly inadequate shower

and restroom facilities.
On August 10, 2005, Keyes claims he was removed
from the holding cell, and was placed alone in a two-man
cell. However, on August 11, 2005, he requested that
Marcus Jones be assigned as his cell mate and, later that
day, Jones was reassigned to the same cell. Keyes
immediately began complaining to correctional personnel
and “forewarn[ed]” the defendants that he was concerned
that Jones might attack him or he might attack Jones, even
though he admits that Jones was “the son of a good friend”
and does not claim that Jones ever threatened him nor that
Jones had a propensity for violence. Thereafter, Keyes
made repeated requests to be assigned a single man cell or
be placed into protective custody, but his requests were
denied.
On September 23, 2005, while Jones was asleep,
Keyes “pound[ed] Jones with punches.” Immediately after
assaulting his cell mate, Keyes was taken to the Special
Housing Unit (“SHU”), but again he physically resisted
being placed into a cell with another inmate. Accordingly,
correctional employees placed him in hand and leg
restraints attached to a belly chain, and put him in a
holding cell which, unlike the other cells in the SHU, had
no in-cell restroom or shower facilities. Keyes was
released from ambulatory restraints approximately 30
hours later, and was provided with clean sheets and
clothing. Keyes remained in the holding cell for 27 days,
and alleges that during that time, because there were no
restroom or shower facilities, he was required to use a
“urine bottle” and “bed pan,” had no in-cell showers or
opportunities to wash his hands, and lost “approximately”
25 pounds. Keyes also complains that his personal
property and hygiene items, including legal materials,
were withheld while he was in the SHU. However, Keyes
does not allege that he was denied food, medical care, or
recreation opportunities, nor does he allege that he
suffered any actual ill effects due to his temporary
placement in the SHU.
II.
*2 A petition may be dismissed under 28 U.S.C. §

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1915A(b)(1) if it is clear from the petition that the plaintiff
is not entitled to relief. To state a cause of action under
Bivens, a plaintiff must establish that he was 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. See
West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d
40 (1988).
I.
Although the Eighth Amendment protects prisoners
from cruel and unusual living conditions, an inmate is not
entitled to relief simply because of exposure to
uncomfortable, restrictive, or inconvenient conditions of
confinement, for, “[t]o the extent that such conditions are
restrictive or 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). As a result, in order to state a claim
of constitutional significance regarding prison conditions,
a plaintiff must demonstrate that the living conditions
violated contemporary standards of decency and that
prison officials were deliberately indifferent to those
conditions. Wilson v. Seiter, 501 U.S. 294, 111 S.Ct.
2321, 115 L.Ed.2d 271 (1991). Additionally, the plaintiff
must allege facts sufficient to show either that he has
sustained a serious or significant mental or physical injury
as a result of the challenged conditions or that the
conditions have created an unreasonable risk of serious
damage to his future health. Strickler v. Waters, 989 F.2d
1375, 1380-1381 (4th Cir.1993); Helling v. McKinney,
509 U.S. 25, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993).
While having a cell mate or being placed in a holding cell
with limited personal belongings, restroom, and shower
facilities, may be inconvenient and unfortunate, Keyes has
not alleged anything to suggest that these conditions
violate contemporary standards of decency. See Shakka v.
Smith, 71 F.3d 162, 168 (4th Cir.1995)(finding that
merely being denied running water and/or the opportunity
to shower for a period of days does not constitute a
deprivation of constitutional magnitude). Further, although
Keyes complains that he lost weight while housed in the
holding cell, he does not allege that his weight loss was
unintentional, that he actually became ill due to the
conditions of which he now complains, nor that there were
any lingering effects on his health. Further, as he concedes

that he was provided with ample food and does not claim
that he was denied medical attention during this period, I
can find no support for his contention that merely a lack of
in-cell shower and toilet facilities caused him to lose
weight. Therefore, I find that Keyes has not alleged
current or future injury and, thus, fails to state a claim
under the Eighth Amendment.
Moreover, although Keyes complains that twice he
was placed in a cell with inadequate restroom and
showering facilities, he concedes that on both occasions he
physically resisted being placed into a cell with those
amenities because he would then be required to have a cell
mate. Keyes does not allege any facts which reasonably
suggest that he was actually in any danger if he was placed
in a cell with another inmate. Rather, he complains only
that he should not be exposed to such inmate's “self
destructive conduct.” As an inmate has no right to choose
to have a single cell, I find that Keyes' unreasonable
refusal to be placed into a multi-inmate cell resulted in his
temporary incarceration in a cell with less comfortable
amenities.
II.
*3 To the extent Keyes alleges that he was subjected
to excessive force by being restrained with hand and leg
restraints attached to a belly chain for thirty hours, it fails.
To establish an Eighth Amendment excessive force claim,
an inmate must satisfy a two-pronged standard comprised
of both an objective inquiry (whether the harm plaintiff
suffered was sufficiently serious enough to amount to a
constitutional violation) and a subjective inquiry (whether
the defendant acted with a sufficiently culpable state of
mind). Williams v. Benjamin, 77 F.3d 756, 761 (4th 1996).
The subjective component of an excessive force claim
requires an inmate to demonstrate that the force used by an
institutional official, “inflicted unnecessary and wanton
pain and suffering.” Hudson v. McMillian, 503 U.S. 1, 7,
112 S.Ct. 995, 117 L.Ed.2d 156 (1992). In evaluating such
a claim, “the question whether the measure taken inflicted
unnecessary and wanton pain and suffering ultimately
turns on ‘whether force was applied in a good faith effort
to maintain or restore discipline or maliciously and
sadistically for the very purpose of causing harm.’ ” Id.
(quoting Whitley v. Albers, 475 U.S. 312, 32-21 (1986)).
The Supreme Court and the Fourth Circuit have set out the

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following factors to consider in determining whether a
prison official acted maliciously and sadistically: “the
need for application of force, the relationship between that
need and the amount of force used, the threat reasonably
perceived by the responsible officials, and any efforts
made to temper the severity of a forceful response.”
Hudson, 503 U.S. at 7 (1992) (quotations omitted);
Williams, 77 F.3d at 762. Also, the inmate must prove the
correction official's actions were “ ‘objectively harmful
enough’ to offend ‘contemporary standards of decency.’
” Stanley v. Hejirika, 134 F.2d 629, 634 (4th Cir.1998)
(quoting Hudson, 503 U.S. at 8). Although there is no
requirement that an inmate suffer “serious” or
“significant” pain or injury to demonstrate that a malicious
or sadistic use of force was employed, he must allege
“more than a de minimis pain or injury.” Norman v.
Taylor, 25 F.3d 1259, 1263 n. 4 (4th Cir.1994). “[A]bsent
the most extraordinary circumstances, a plaintiff cannot
prevail on an Eighth Amendment excessive force claim if
his injury is de minimis.” Taylor v. McDuffie, 155 F.3d
479, 483 (4th Cir.1998). However, a de minimis physical
injury may amount to an Eighth Amendment violation if
the force used was of the sort “repugnant to the conscience
of mankind.” In Norman v. Taylor, the Fourth Circuit
stated:
We recognize that there may be highly unusual
circumstances in which a particular application of force
will cause relatively little, or perhaps no, enduring
injury, but nonetheless will result in an impermissible
infliction of pain. In these circumstances, we believe
that either the force used will be “of a sort ‘repugnant to
the conscience of mankind,’ ” and thus expressly
outside the de minimis force exception, or the pain itself
will be such that it can properly be said to constitute
more than de minimis injury.
*4 25 F.3d at 1263, n. 4 (citations omitted).
Although Keyes complains that he was restrained for
thirty hours by hand and leg restraints attached to a belly
chain, he does not allege he suffered any actual injury as
a result of the restraint, thus any injury is de minimis and
does not amount to a constitutional violation. Furthermore,
Keyes has failed to allege any facts which establish those
extraordinary circumstances on which a plaintiff can

prevail on an excessive force claim when he suffers only
de minimis injury. Merely a lack of due care for the
prisoner's interests and safety fails to show the use of force
which is “repugnant to the conscience of mankind.” See
Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89
L.Ed.2d 251 (1986)(finding that the infliction of pain in
the course of a prison security measure, does not amount
to cruel and unusual punishment simply because it may
appear in retrospect that the degree of force authorized or
applied for security purposes was unreasonable, and hence
unnecessary in the strict sense). Keyes concedes that
immediately prior to his placement in ambulatory
restraints he violently attacked his sleeping cell mate and
physically resisted correctional officers efforts to restrain
him and place him in another cell. Further, Keyes does not
allege that he was unable to move, stand, lay down, eat,
and/or utilize the restroom because of those restraints.
Accordingly, I find that correctional officers utilized a
reasonable amount of force in restraining Keyes and
leaving him in restraints until he remained peaceable and,
thus, find he fails to state a claim of constitutional
magnitude.
III.
Based on the foregoing, I find that Keyes has not
presented any claims that constitute a violation of his
constitutional rights. Therefore, I dismiss the complaint
without prejudice pursuant to 28 U.S.C. § 1915A(b)(1).
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 Order, or
within such extended period as the court may grant
pursuant to Rule 4(a)(5).
The Clerk is directed to send certified copies of this
Memorandum Opinion and accompanying Order to
plaintiff and to counsel of record for the defendants, if
known.
W.D.Va.,2006.
Keyes v. O'Brien
Not Reported in F.Supp.2d, 2006 WL 2125912 (W.D.Va.)
END OF DOCUMENT

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