Cannon v. Tull et al

Filing 14

MEMORANDUM OPINION. Signed by District Judge Leonie M. Brinkema on 7/21/2016. (dest, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA

Alexandria Division

Jamar A. Cannon,
Plaintiff,

I:16cv359 (LMB/TCB)

V.

Edward Hull, et
Defendants.
MEMORANDUM OPINION

Jamar A. Camion filed this prose civil rights action, pursuant to 42U.S.C. § 1983, alleging
that defendants violated his constitutional rights at Northern NeckRegional Jail. Dkt. No. 1.

Plaintiffhas applied to proceed in forma pauperis in this action. Dkt. No. 2. By Order dated
May 12,2016, plaintiff was directed to particularize andamend his complaint, to sign and
complete a ConsentForm, and to complete an exhaustion affidavit. Dkt. No. 3. Plaintiff

requested additional time to comply with that Order, and onJune 3,2016, he was granted an
additional thirty (30) days in which to file a particularized and amended complaint. Dkt. Nos.
6-8. Plaintifffiled an amended complaint on June 9,2016. Dkt. No. 10. Upon review of
plaintiffs amended complaint, the claims plaintiffalleges whicharise underthe Seventh and

Thirteenth Amendments and the Prison Rape Elimination Act(PREA), as well as theclaims
against Nurse Bams, will be dismissed pursuant to 28 U.S.C. § 1915A(b)(l), for failure to state a
claim.'

' Section 1915A provides:
(a) Screening.—^The court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in which

a prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.

In addition, by letter filed on May 22,2016, plaintiff statedthat he needs "help either threw
[sic] counsel or some help to get the US Constitution laws, civil rights of a prisoner/US citizen and

the Amendments of the United States set forthby Congress." Dkt. No. 6. Construed liberally,

plaintiffs letterappears to be a Motion to Appoint Counsel. A courtmayrequest an attorney to
represent an indigentplaintiffproceeding in forma pauperis. 28 U.S.C. § 1915(e)(1); however, the

FourthCircuithas limited the appointment of counsel to cases where "exceptional circumstances"
exist, such as cases with particularlycomplex factual and legal issues or with a litigant who is

unable to represent himselfadequately. Whisenant v. Yuam. 739 F.2d 160,163 (4th Cir. 1984).
It is unnecessaryat this time to appoint counsel for plaintiff as he has failed to demonstratethe

existence of "exceptional circumstances" that wouldwarrant appointment of counsel. To date,
plaintiff has ably filed his complaint, amended complaint, and motions, and has demonstrated

comprehension ofthe procedures and laws of this court. Thus, plaintiffs Motionto Appoint

Counsel will be denied without prejudice to renewal at a later stage of the proceedings, if
appropriate.

In a letter filed on July 5, 2016, plaintiffasksfor "a copyof everything filed in this case or
a docketsheet,and I wouldlike to request a discovery motionof anything pertaining to this

matter." Dkt. No. 13. By Orderdated June3,2016, a similar request wasdenied because parties
are not entitledto fi:ee copiesof pleadings or other documents unlessa specificneed is established.

(b) Grounds for dismissal.—On review, the court shall identify cognizable
claims or dismiss the complaint, or any portion of the complaint, if the
complaint—

(1) is fnvolous, malicious, or fails to state a claim upon which
relief can be granted; or
(2) seeks monetary relief fi-om a defendant who is immune fi:om
such action which plaintiff asserts is a federal offense.
2

Plaintiff has not established such a need. As was ordered in the June 3,2016 Order, the Clerk will

be instructed to provide plaintiffwith a copyof the docket sheet. Lastly, plaintiffs Motion for
Discovery will be denied as prematurebecause the complainthas not yet been served on all

defendants. Plaintiffmay renewthis request after defendants respond to the amended complaint,
if discovery is appropriate.
I.

Throughouthis amended complaint, plaintiff variously asserts that his rights under the
First, Sixth, Seventh, Eighth, Thirteenth, and Fourteenth Amendments were violated, as well as his

rightsunderthe PREA. In "Claim#1plaintiff alleges that he was assaulted by Officer Lubeke.
Amend. Compl. at § VI. Specifically, plaintiff states that, on July 18,2012, he was handcuffed

behindhis back and placed in shackles (per his housing unit's policy) by Officer Stephan before
being escorted to meet his attomey. Id As he was aboutto enterthe "Attorney booths"he
passedOfficer Lubeke, who was on a ladder changing light bulbs. Id. The two exchanged
words and then OfficerLubeke allegedly "jumped off the [ladder] and proceeded to[] bull rush
[plaintiff] withrageandhurtful/forceful intent." Id PlaintiffaskedOfficer Stephan for help,but
he "did nothing, said nothing." Id OfficerLubekethen allegedly "grabbed the locks of

[plaintiffs] dreaded hair and proceeded to slam [plaintiffs] headand body from wall to wall all
while [plaintiffwas] screaming in pain stop, your [sic] hurting me get him Stephan." Id
Plaintiff states that he had blood running down his neck and out of his ears, and that Officer

Lubeke pulled the root of his hairout of his head, causing it to bleed. Id Afterspeaking with
Sergeant Berry, plaintiffwas taken to the medical unit where Nurse Bams cleaned his wounds and

filled out a report regarding plaintiffs injuries.^ Id Plaintiffattempted to file criminal charges,
but was "toldby Captain Hickey and Superintendent Hull [that he had] no right to file charges"
and that it was up to Superintendent Hull to do so. Id Plaintiffalleges that, instead, he was
charged with assaultingOfficer Lubeke,even though he was in handcuffs and shackles at the time,

andwas placed in solitary confinement. Id Plaintiffasserts that his onlyremedy wasto filethis

civil suit. Id Plaintiffalsostates that all of the defendants are "in on [this] cover up" andthat
they eachhad a duty to report Officer Lubeke's actions because theyhad"knowledge of a crime."

Id Plaintiff hassuffered "emotional stress, physical [and] mental problems, permanent injuries
[and] hairloss"andhe "fear[s] for [his] lifehere at 'NNJR' because if [officers] and superiors
cover up vicious, sadistic and [sic] assaults/attempted murder on inmates imagine what else this
place will allow and cover up." Id

In "Claim #2," plaintiffalleges that, at the direction of Superintendent Hull, MajorBack,
and Captain Turner, he was forced to take showers while handcuffedand shackled, for

approximately 30 to 49 days, "like a slaveand less of a human being." Id More specifically,
plaintiff was forced to get "butt naked" in his cell, after which he would be cuffed and shackled,

and then he would"proceed to the shower," walking past otherinmates "with all [his] private parts
exposed." Id Some of the officers escorting plaintiff to his showers were females. Id

Officers and inmates would make comments and laugh at and tauntplaintiffas he walked to the

shower naked. Id In addition, the handcuffs and shackles caused plaintiff "mental, emotional
and physical stress pains andswellings of the wrist, andankles." Id At some point.
Superintendent Hull modified this procedure so that plaintiff only wore handcuffs in the shower.

^This report was attached to plaintiff's original complaint and states that plaintiffhad a
back strain as well astwo small scratches onhis neck that were still bleeding.
4

Id Plaintiff asserts thathe "shouldn't betreated like a slave or murder" because he "didnothing
to warrant this cruel [and] unusual punishment andthis is not a legal punishment to be brought
upon anyhuman being incarcerated period." Id Finally, plaintiffalleges that Major Back
"endorses slavery and slavery tactics in dealing with African-Americans and others of different
cultures other than caucassion [sic]." Id

In "Claim #3" plaintiffalleges thathe was forced to eat food in the poor conditions of the

gym and was then placed in solitary confinement, at the direction of Major Back, for refusing to
eat in the gym and complaining about theconditions. Id Specifically, plaintiff states thatthe
gym has "noventilation system, no running water (because the bathroom stays locked), urine in
the water fountain ... blood on the floor and walls and filth." Id He also states that the cell he

was placed in had"nomirror, no sprinkler system, urine/feces on thewalls, roofleaking when it

rains, etc." Id Plaintiff "endured these harsh conditions for over 30days and became mentally
[and] emotionally exhausted [and] stressed out." Id Hewas eventually moved to general
population. Id

In"Claim #4"plaintiffstates thathe was notallowed to callhis attomey. Id OnOctober
15,2015, Sergeant Berry told plaintiffhe could not "call andtalkto [his] attomey, but she was

authorized byCaptain Darryl Turner to come to [plaintiffs] cell and ask[him] what [he] wanted to
say and she should relay the messages backandforth." Id Major Back gave "another orderto
[Captain] Turner denying [plaintiff] direct communication to [his] attomey." Id In addition.

Supervisor Hull knew his subordinates were taking these actions, buthe didnotintervene;" rather,
he "acted as [if] nothing happened or he didn't know." Id

In "Claim #5" plaintiff alleges that he has "been forced to be indigent" because, at the

directionof Major Back,his inmateaccount was fi-ozen since September 30,2015, preventing him
from being able to make non-legal calls or buy food and hygiene products. Id This has caused

plaintiffto lose weightbecauseof the stressand lack of food. Id. Plaintiffallegesthat, although

thejail employees, including Director Lewis, havestatedthat theyhaveevidence that the moneyin
his account was related to illegal activity, he has been sanctioned despite not beingcharged with
any criminal activity or institutional infraction. Id. Plaintiff states that he is not even allowed to

access money deposited by family and fnends. Id. Plaintiff asserts that he is "being treated

differently than other prisoners/being denied phoneprivileges, access to my families [sic] money
sent for hygiene, phone [and] commissary purposes, loss of contact with family [and] kids etc."

Id. He also claimsthat MajorBack"has shownracist [sic] and hatredtowards plaintiffby
freezing inmate[']s account on assumptions and giving vague, false and no fact backed excuse
other than a case by case base [sic]." Id Superintendent Hull stated that this "will continue until
[plaintiffs] release from this facility." Id

Plaintiffnames Superintendent Edward Hull,MajorPhyllis Back, Chiefof Security Darryl
Turner, Captain Hickey, D. Lubeke, Officer Stephan,SergeantBerry, Director of Inmate Services

Michelle Lewis, and Nurse Bams as defendants in this case, and he seeks monetary and equitable
relief.

Id§§I,V.
11.

To state a claim under § 1915A(b)(l), "a complaint must contain sufficient factual matter,

accepted as true, to 'statea claim to reliefthat is plausible on its face.'" Ashcroft v. Iqbal. 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twomblv. 550 U.S. 544, 570 (2007)). "A

claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liablefor the misconduct alleged," Iqbal. 556 U.S. at

66; however, "[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice" to meetthis standard, id. at 678, and a plaintiff's "[f]actual
allegations must be enough to raise a rightto relief above the speculative level

" Twomblv.

550 U.S. at 55.
IIL

Plaintiffs claims that his rights under the Seventh Amendmentwere violated must be

dismissed for failure to state a claim. The Seventh Amendment states that"[i]n Suits at common

law, where the value in controversy shall exceed twenty dollars, the right of trial byjury shall be
preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United

States, than according to the rules of the common law." Plaintiffs allegations in no way

implicate any right granted bythe Seventh Amendment. Thus, his claims arising under the
Seventh Amendmentwill be dismissed under § 1915A.
Similarly, plaintiffs claims arising imder the Thirteenth Amendment must be dismissed

forfailure to state a claim. The Thirteenth Amendment, which prohibits involuntary servitude, is
inapposite to the substance of plaintiffs complaint. Plaintiffasserts that he was forced to wear

handcuffs and shackles while showering "like a slave and less of a human being;" however,
"'[w]hen a person is duly tried, convicted and sentenced in accordance with law, no issue of

peonage or involuntary servimde arises.'" Wendt v. Lvnaugh. 841 F.2d 619,620 (5th Cir. 1988)
(quoting Draper v. Rhav. 315 F.2d 193 (9th Cir.), cert, denied, 375 U.S. 915 (1963)). Plaintiff

makesno allegations that he was improperly tried, convicted, or sentenced; thus, his Thirteenth
Amendment claims must be dismissed pursuant to § 1915A.
Plaintiffs claims that his rights under the PREA were violated must be dismissed for

failure to state a claim because prisoners do nothave a right to sue under the PREA. ^

De'lonta

V. Clarke. 2012 WL 4458648, at *3 (W.D. Va. Sept. 11,2012) ("Nothing inthe PREA suggests
thatCongress intended to create a private right of action for inmates to sue prison officials for
noncompliance withtheAct"), affd sub nom. De'Lontav. Pruitt. 548 F. App'x 938 (4thCir. 2013).
Thus, plaintiffs claims thathisrights under the Seventh Amendment, Thirteenth Amendment, and
the PREA wereviolated aredismissed pursuant to § 1915A for failure to statea claim. Plaintiffs
claimsarising underthe First, Sixth, Eighth, and Fourteenth Amendments remain.

Defendant Nurse Bams will also bedismissed from this matter as plaintiff failed to state a
claim against thisdefendant. The only allegation plaintiff asserts against Nurse Barnes is the
conclusory statement that Nurse Bams hada dutyto report Officer Lubeke's actions because it

constituted "knowledge ofa crime." As this isinsufficient tostate a cause ofaction against Nurse
Bams, this defendant will be dismissed for failure to state a claim.
IV.

Asnoted above, plaintiff submitted an application to proceed in forma pauperis and has

consented to pay aninitial filing fee and to make subsequent payments, pursuant to 28 U.S.C. §

1915(b), until hehas paid the full $350.00 filing fee. Plaintiffs institution has supplied

information on plaintiffs inmate account reflecting that, for the past six months, plaintiffhad an
average monthly deposit of $0.00, an average monthly balance of $356.98, and a balance of

negative $23.00 at the time ofinquiry. Therefore, plaintiffwill be required to pay a partial filing

fee of $71.39, which is twenty percent (20%) of the greater of the average monthly deposits or
balance for the last six months preceding filing of this complaint.

28 U.S.C. § 1915(b)(1).

Aftersubmitting his initial filing fee,plaintiffwill be required monthly to remitto the Clerktwenty
percent (20%) of any income into the plaintiffs inmate account, if that income causes his inmate

account balance to exceed $10.00. 28 U.S.C. § 1915(b)(2). This requirement shall continue
until the full filing fee has been paid, even after this civil action is resolved or dismissed.
V.

For the above stated reasons, the claims plaintiffalleges which arise under the Seventh and

Thirteenth Amendments and the PREA, as well as the claims against Nurse Bams, will be
dismissed pursuantto 28 U.S.C. § 1915A(b)(l), for failure to state a claim. Plaintiffs Motion to

Appoint Counsel and Motion for Discovery will be denied without prejudice. Allremaining
defendants will be served. An appropriate Ordershall issue.

Entered this Jil

day of

2016.

Alexandria, Virginia
Leonie M. Brinke^a

United States District Judge