Cannon v. Tull et al
MEMORANDUM OPINION. Signed by District Judge Leonie M. Brinkema on 1/23/2017. (dest ) (copy sent to Pro Se)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Jamar A. Cannon,
Edward Hull, et al..
Jamar A. Cannon filed this pro se civil rights action, pursuant to 42 U.S.C. § 1983, alleging
that defendants Superintendent Edward Hull, Major Phyllis Back, ChiefofSecurity Darryl Turner,
Captain Hickey, Officer D. Lubeke, Officer Stephan, Sergeant Berry, and Director Michelle Lewis
violated his constitutional rights at the Northern Neck Regional Jail (NNRJ). Defendants have
filed a Motion for Summary Judgment as well as memoranda of law with supporting exhibits.
[Dkt. Nos. 29,30.] After having been granted an extension oftime to respond, plaintiff has
responded to defendants' motion [Dkt. No. 45] and this matter is now ripe for adjudication. For
the reasons discussed below, defendants' Motion for Summary Judgment will be granted as to
Claims One through Four and these claims will be dismissed, with prejudice. As to Claun Five,
defendants will be directed to provide supplemental briefing. Finally, plaintiff's pending
discovery motions will be denied and all other pending motions will be denied as moot.
Plaintiff was transferred to the NNRJ by the United States Marshal Service in June 2011.
Supt. Hull Aff., 15. During this time, plaintiff has been assigned to various forms of restrictive
housing, including administrative segregation and, at times, the more restrictive punitive
segregation. Id K8. His administrative records firom NNRJ demonstrate that plaintiff is
"[u]nable to adapt to life in general population" and has routinely been placed in administrative
segregation for the "safety andsecurity of the institution." Defs. SJ Mot. at Ex. 1(a), 10,11,12,
13,14,15,16,17. The bases for these conclusions are well documented.
In September 2011, plaintiffmetwiththe prison therapist who wrote that plaintiff was
having auditory hallucinations andmaking veiled threats. Id, at 20. On June 14,2013,after
plaintiff wasmoved to E-pod, he wasplaced on suicide watch afterhe became angry about the
transfer and threatened to kill himself Id at 21. In September 2015, officers discovered a
pocket knife andtwo penshidden inplamtiffs cellandhewascited withdisobeying a direct order,
possession of a weapon, and possession of contraband. Id at 26.
Plaintiffwasplacedon suicide watcha second time on June 24,2016 afterhe threatened to
kill himselfbasedon persistent complaints abouthis food. Id at 22. The evening before,
plaintiffbegan making suicidal threats andresisted attempts to transport himfor suicide watch: he
covered the window to his cell, refused to allow officers to handcuff him, jammed his cell door
shut, and ran out ofhis cell as the officersentered behindprotective shields. Id at 31. When he
was finally taken to the medical wing, plamtiff"threatened to harm himselfand damage jail
property" and was placed in a restraint chair for several hours. Id. at 18.
Fourdays later, on June28,2016, plaintiffasked to seethe therapist again andtold himhe
planned to act out ifhe wasnot provided withhis grandmother's obituary, to which he had
previously beendenied access. Id at 23. Thefollowing month, he metwiththe therapist again
complaining of"anxiety withincreased energy, increased anger/agitation,... decreased sleep, and
... a lot of psychomotor movements." Id at 24. Plaintiffagreed to starttakingWellbutrin, an
Plaintiff asserts five separate claims in his amended complaint. The disputed and
undisputed facts, as they relateto each claim,are as follows.
A. Claim One
In Claim One, plaintiff alleges that Officer Lubeke used excessive force. Amend. Compl.
at § IV. Specifically, plaintiff alleges that on July 18,2012, he was handcuffed behind his back
and placed in shackles (per his housing unit's policy) by Officer Stephan before being escorted to
meet his attorney. Id As he was about to enter the "Attorney booths" he passed Officer Lubeke,
the two exchanged words, and Officer Lubeke "proceeded to bull rush [plaintiff] with rage and
hurtful/forcefiil intent." Id Officer Lubeke then "grabbed the locks of [plaintiffs] dreaded hair
and proceeded to slam [plaintiffs] head and body from wall to wall all while [plaintiff was]
screaming in pain stop, your [sic] hurting me get him Stephan." Id Plaintiff claims that he had
blood running down his neck and out ofhis ears, and that Officer Lubeke pulled the root ofhis hair
out ofhis head, causing it to bleed. Id Plaintiff attempted to file criminal charges, but was "told
by 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 Finally, plaintiff claims that, rather than officer Lubeke
being charged with assault, plaintiff was thrown into solitary confinement for assaulting Officer
Lubeke. Id Defendants do not dispute any of these allegations, but as discussed below, they
argue that this claim is time-barred.
B. Claim Two
In Claim Two plaintiffalleges he suffered cruel and unusual punishment at the direction of
Superintendent Hull, Major Back, and Captain Turner, when he was forced to take showers while
handcuffed and shackled "like a slave and less of a human being" during a 30-49 day period. Id
The following facts are undisputed. While incarcerated at NNRJ, plaintiff has been
assigned to restricted housing due to his inability to adapt to and maintain life in NNRJ's general
population. Amend. Compl.; Defs. SJ Mot. at Ex. 1. While plaintiffwas in punitive segregation
he was allowed to leave his cell on Mondays and Fridays to take a shower, but he was placed in
handcuffs and shackles when transportedto the shower areas. Id.; Defs. SJ Mot. at Ex. 3. On
October 20,2015, and October 28,2015, plaintiff filed grievances related to the requirement that
he wear handcuffs and shackles in the shower. Defs. SJ Mot. at Ex. 1(b). Plaintiffwas told that
"thejail hastakenthe necessary security measures in regards to [his] recent behavior" including
his "disciplinary charge and statements in reference to threatsto staff" Id Plaintiffappealed the
grievance to whichMajorBackresponded that plaintiffs "position on how [his] one hour out of
[his] cell and [his] shower should be provided is self-perceived, partially informed and
consequently [illegible] and inaccurate statement." Id. Plaintiffappealedagain and on
November 23,2015, SuperintendentHull responded that he "modified this requirement."
Amend. Compl. According to plaintiff, that modification was that he only worehandcuffs in the
It remainsdisputedas to whetherplaintiffwas taken to the showernaked and why plaintiff
was treatedthe way he was. Plaintiffallegesthat he 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] privateparts exposed." Id Someofficers and inmates would
make comments and laugh at and taunt plaintiff as he walked to the shower naked. Id In
addition, the handcuffs and shackles caused plaintiff "mental, emotional and physical stress pains
and swellings of the wrist, and ankles." Id Plaintiffassertsthat he "did nothingto warrant this
cruel [and] unusual punishment and this is not a legal punishment to be brought upon any human
being incarcerated period." Id More specifically, plaintiff states that he had no disciplinary
charges filed againsthim from October 2014to September 2015, and he was employed in a
position of trust as a barberat NNRJ. PI. SJ 0pp. at 4. Finally, plaintiffalleges that MajorBack
"endorses slavery and slavery tactics in dealing with African-Americans and others of different
cultures other than caucassion [sic]." Amend. Compl. at § IV.
Defendants, on the other hand, state that plaintiff was never "escorted, while naked, to the
showers." Defs. SJ Mot. at Ex. 1(a), 3. Further, plaintiffs contemporaneously filed grievance
forms, dated October 10, October 20, October 28 and October 30,2015 complain about the
handcuffs and make no mention ofbeuig forced to walk to the showers naked. Defs. SJ Mot. at
Ex. 1(b), 2-5. In addition, defendants assert that, for the majority of his time at NNRJ, plaintiff
was either in administrative segregation or punitive segregation because he was "unable to adapt"
to the general prison population. Id. Defendants assert that the restrictions placed on plaintiff
were a result of his ongoing history of threatening to damage jail property and/or to harm himself
or others, conductingillegal activity,incitingriots, and generallybemg combative,disrespectfulor
threatening to jail staff." Id at Ex. 2.
To support this proposition, defendants attached reports from plaintiffs jail record
showing that he reported hearing command voices and "made a few veiled threats" to a therapist
on September 16,2011; an inmate suicide assessment was performed on plaintiff on June 14,
2013; on September 30,2015, plaintiff was found to have contraband in his cell and he was taken
to administrative segregation; he was charged with making "verbal threats to do bodily harm to
officers" on December 18,2015; and that he was pepper sprayed for failing to obey orders after
threateningto kill himself and covering his cell window, and he was then placed in a restraint chair
for "threatening to harm himself and damage jail property" on June 23,2016. Id. at Ex. 1(a)
C. Claim Three
In Claim Three, plaintiff asserts a claim of cruel and unusual punishment based on
conditions ofconfinement related to being forced to eat food in the poor conditions ofthe gym and
the conditions of solitary confinementin which plaintiff was placed for refusing to eat in the gym.
It is undisputed that, on June 17,2015, plaintiffand the other inmates in his pod had to eat lunchm
the gymwhiletheirpod was undergoing maintenance. Amend. Compl; Defs. SJ Mot.at Ex. 1(c).
An incidentreport firom that day reflectsthat, after the "C pod inmateswhich [sic] were in the gym
at the time for maintenance work, refused their lunch trays" prison officials placed chairs in the
gym and openedthe bathroomdoors so that the inmatescould wash their hands. Defs. SJ Mot. at
Ex. 1(c). "OfficerCampbell offered them their trays again and they refiised." Id Officer
Burrell went to the gym to offer the inmates their trays, at which point plaintiff stated "'we have
the right to eat in sanitary conditions, get the major in here.'" Id. Captain Turnerordered that
plaintiff be removed from the gym and taken to segregation. Id.
Plaintiffallegesthat the gym has "no ventilation system,no runningwater (because the
bathroom stays locked), urine in the water fountain ... blood on the floor and walls and filth."
Amend. Compl. at § IV. He also states that the cell he was placed in once in solitary confinement
had "no mirror,no sprinklersystem, urine/feces on the walls, roof leaking when it rains, etc." Id.
Plaintiff"endured these harsh conditions for over 30 days and became mentally [and] emotionally
exhausted [and] stressedout." Id He was eventuallymoved to generalpopulation. Id.
Defendants claim that plaintiffwas "attempt[ing] to mcite riotous behavior by refusing to
accepthis lunchtray in the gym. Plaintiffwas removed from the gym at that time and the other
inmates had no issue taking their lunch in the gym area." Defs. SJ Mot.
D. Claim Four
In Claim Four plaintiff asserts that he was not allowed to call his attorney. Amend.
Compl. at § IV. The facts related to this claimare almost entirely in dispute. Plaintiffclaims
that, on October 15,2015, Sergeant Berry told him he could not "call and talk to [his] attorney, but
she was authorized by Captain Darryl Turner to come to [plaintiffs] cell and ask [him] what [he]
wanted to say and she should relay the messages back and forth." Amend. Compl. Major Back
allegedly gave "another order to [Captain] Turner denying [plaintiff] direct communicationto
[his] attomey." Id. In addition, plaintiff asserts, Supervisor Hull knew his subordinates were
taking these actions, but he did not intervene;" rather, he "acted as [if] nothing happened or he
didn't know." Id Defendants respond that, while plaintiff was in administrative segregation he
had a phone in his cell, and therefore had unlimited ability to make phone calls, and that when
plaintiff was in punitive segregation, he was able to make phone calls on Mondays and Fridays.
Defs. SJ Mot. at Ex. 2.
The record shows that, on June 8,2013, plaintiff filed an inmate request form asking to
speak with an attorney. Plaintiffs request was approved by Captain Turner on June 10,2013.
Id. at Ex. 1(d). Two years later, on May 13,2015, plaintifffiled an inmate request form asking for
"a lawyer phone call as soon as possible. It is very important." Id The response from Major
Back was that "NNRJ does not provide phone calls outside the provisions of the inmate phone
system. You may want to consider calling collect or writing to those you'd like to communicate
In response to a July 23,2015 inmate request form Major Back stated "Your tablet
privileges have been rescinded indefinitely. Commissary order can be made manually be [sic]
submitting an order to the commissary clerk. Requests for attomey calls are to be directed to me
with the name and number of your attomey." Id On October 15,2015, plaintifffiled an inmate
request statingthat he 'Svould like in writingthat [NNRJis] refusing to let [him] speak with [his]
lawyerpersonally,which constitutesa breach in privacy.... Relaying messagesthru staff to [his]
lawyer is clearly not client, attorney privilege [sic]Amend. Compl. Major Back's response
On October 22,2015, plaintiff filed a grievance in which he states that Sergeant Berry, per
orders from Captain Turner and Major Back, told plaintiff that he could not speak directly to his
attorney, but rather, that plaintiff could communicate with his attorney through Sergeant Berry.
Defs. SJ Mot. at Ex. 1(d) Captain Turner responded by stating that plaintiff would be allowed to
use the phone to contact his attorney on Monday and Friday when he was out of his cell for his
shower. Id Plaintiffwas also told that he could submit a request to use the phone at other times.
Id. Plaintiff appealed this decision and Major Back denied the appeal because "neither
[plaintiffs] constitutionalrights nor [his] legal rights of attorney client confidentialityhave been
violated." Id Plaintiffappealed again and Superintendent Hull stated that plaintiffcould call his
Plaintiff filed an inmate request form on October 31,2015, stating that he needed his "pin
#" to work in order to call his attorney. Id Captain Turner responded that he "advise[d] Ms.
Dunaway ofthis and she assure[d] [Captain Turner] that [plaintiffs] pm # will work." Id On
November 2,2015, plaintiff filed another umiate request regarding his inability to use his pin
number to make phone calls. Id Captain Turner responded on November 4,2015, that, due to
suspectedillegal activity, plaintiffs funds "will not be allowed to be used for phone privileges or
commissary until further notice. [Plaintiff] will be allowed to make attorney calls on [his] days
out on punitive (Monday [and] Friday)." Id On November 5,2015, plaintiff filed a grievance
asking why his phone pin number was not working and Captain Turner replied that plaintiffs
phone privileges had been suspended "except legal calls." Amend. Compl. On November 10,
2015, plaintiff filed another grievancerelated to being able to speak with his attorney and Captain
Turner respondedthat he was unsure what plaintiffs claims were "since [he] personally advised
several of [his] supervisors to give [plaintiff] legal calls, even on the weekends requested by
[plaintiffs] attorney." Defs. SJ Mot. at Ex. 1(d).
E. Claim Five
In Claim Five plaintiff alleges that he has "been forced to be indigent" because, at the
directionofMajor Back, his inmate accounthas been frozen smce September30,2015, preventing
him from being able to make non-legal calls or buy food and hygiene products. Amend. Compl.
at § rV. It is undisputed that, sometime in September or October 2015, plaintiffs inmate account
was frozen and plaintiffwas denied access to the fimds in his account. Id.; Defs. SJ Mot. at Ex. 2.
It is also undisputed that plaintiffhas been told that he can either have the money in his inmate
account given to his attorney or that he will be given access to the money when he is no longer
incarcerated. Id; Defs. SJ Mot. at Ex. 2.
Plaintiff alleges that, although the jail employees have stated that they have evidence that
the money in his account is related to illegal activity, his account has been frozen despite plaintiff
not being charged with any criminal activity or institutional infraction. Id Plaintiff asserts that
he has "never been involved in any illegal activity nor gambling ... at NNRJ," PI. SJ 0pp. at 11,
and is "being treated differentlythan other p^isoners^eing denied phone privileges, access to my
families [sic] money sent for hygiene, phone [and] commissary purposes, loss of contact with
family [and] kids etc." Amend, Compl at § IV. He also claims that Major Back "has shown
racist [sic] and hatred towards plaintiff by freezing inmate[']s account on assumptions and giving
vague, false and no fact backed excuse other than a case by case base [sic]." Id
Defendants do not dispute that plaintiffs accoimt has been frozen because plaintiff was
being investigated for "strongly suspected involvementin a criminal enterprise," but explain that
plaintiff has been provided hygiene products and basic necessities while his account has been
Defs. SJ Mot. at Ex. 2.
On October 15,2016, plaintiff filed an inmate request asking that his money be released to
his attorney, to which Superintendent Hull responded that plaintiffs "attorney can help [him] with
the request. Actuallywe have [plaintiff] recorded discussing ... gamblmgso [plaintiffs] account
will remain frozen." Id at Ex. 1(e). In response to an appeal ofa grievance. SuperintendentHull
statedthat plaintiffhas "no 'right' to commissary and [plaintiffhas] to date abusedthe privilege.
[Plaintiff] can sendthe moneyhomeor to [his] attorney. [His] choiceor I will sendthe funds with
[plaintiff] when [heleaves]Id. On April 16,2016, plaintifffiledan inmaterequest formand in
response he was provided socks, boxers, and t-shirts. Id On May 17,2016, plaintiffsubmitted
an inmate request asking why his account, which had been frozen for several months, had a
negative balance. Id. Captain Turnerstatedin his May 18 response that he had "attempted to
correct the issue. However, the company that controls the ATM transactions (Tech Friends) has
frozen this account due to fraudulent transaction attempts. If you wish to have your family
contact them, the number is 866-033-6386. Again, the jail has no control over this matter." Id
at 10. This conclusion was confirmed by an incident report by Diane Dunaway on May 18,2016,
which said that NNRJ tech support had confirmed that plaintiff's account "ha[d] been 'red
flagged' because of fraudulent transaction on [his] card [nimiber]." Id at 8.
n. standard of Review
Summaryjudgment "shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuineissueas to any materialfact and that the movingparty is entitledto judgment as a matterof
law." Fed. R. Civ. P. 56(c). The moving party bears the burden of proving that judgment on the
pleadings is appropriate.
Celotex Corp. v. Citrate. 477 U.S. 317,323 (1986) (moving party
bears the burden ofpersuasion on all relevant issues). To meet that burden, the moving party
must demonstrate that no genuine issues of material fact are present for resolution. Id
Once a moving party has met its burden to show that it is entitled to judgment as a matter of law,
the burden then shifts to the non-moving party to point out the specific facts which create disputed
factual issues. Anderson v. Liberty Lobbv. Inc.. 477 U.S. 242,248 (1986); Matsushita Electrical
Industrial Co. v. Zenith Radio Corp.. 475 U.S. 574,587 (1986). In evaluating a motion for
summary judgment, a district court should consider the evidence in the light most favorable to the
non-moving party and draw all reasonable inferences from those facts in favor of that party.
United States v. Diebold. Inc.. 369 U.S. 654, 655 (1962). Those facts which the moving party
bears the burden ofproving are facts which are material. "[T]he substantive law will identify
which facts are material. Only disputes over facts which might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment." Anderson. 477
U.S. at 248. An issue of material fact is genuine when, "the evidence ... create[s] [a] fair doubt;
wholly speculative assertions will not suffice." Ross v. Communications Satellite Corp.. 759
F.2d 355,364 (4th Cir. 1985). Thus, summary judgment is appropriate only where no material
facts are genuinely disputed and the evidence as a whole could not lead a rational fact finder to rule
for the non-moving party. Matsushita. 475 U.S. at 587.
A. Claim One
Because there is no federal statute of limitations for § 1983 claims, the state limitations
period which governs personal injury actions is applied. S^ Wilson v. Garcia. 471 U.S. 261,280
(1985). Virginia has a two-year statute of limitations for personal injury claims under Virginia
Code. § 8.01-243(A), which is the applicable statute of limitations in this action.
Angelone. 148 F. Supp. 2d 670,677 (W.D. Va. 2001), afPd, 49 Fed. Appx. 451 (4th Cir. Oct. 30,
2002) (unpublishedopinion). Additionally, federal courts are "obligated not only to apply the
analogous state statute of limitationsto federal constitutional claims brought under § 1983, but
alsoto applythe State's rule for tollmgthat statuteof limitations." Scoeeinsv. Douglas. 760 F.2d
535, 537 (4th Cir. 1985) (citingBoard of Resents v. Tomanio. 446 U.S. 478,484-86 (1980)); see
also HarHin v. Straiih.490 U.S. 536,538 (1989) ("Courts thus should not unravel state limitations
rules unlesstheir full application would defeatthe goals of the federal statute at issue").
Although the limitation periodis borrowed from statelaw,"the question of whena causeof
action accrues under 42 U.S.C. § 1983 remains one of federal law." Nasim v. Warden. Md.
House of Corr.. 64 F.3d 951,955 (4th Cir. 1995) (citing Cox v. Stanton. 529 F.2d 47,50 (4th Cir.
1975)). Causes of action accrue under federal law when the plaintiff"possesses sufficient facts
about the harm done to him that reasonable inquiry will reveal his cause of action." Id. (citing
United States v. Kubrick. 444 U.S. Ill, 122-24(1979)).
Plaintiffs cause of action related to Officer Lubeke's alleged assault accrued on July 18,
2012; however, the instantpetitionwas not filed until March22,2016, twenty (20) months after
the twoyear statute of limitations hadrun. Plaintiff argues that"an attempted murder or assault
with the intent to kill and or [sic] malicious wounding on the plaintiff by D. Lubeke carries a
longer statute of limitations thanassault andI wasmore thanassaulted withbattery [sic]...." PL
SJ 0pp. at 1. Plaintiffappears to be mistaking the statute of limitations forthecriminal actions of
assault and attempted murderwith the statute of limitations for a personal injuryaction, which is
the applicable statute of limitations. Plaintiffalso statesthat he was prevented from filing a
criminal complaint against Officer Lubeke. Id To the extent this is an argument by plaintiffthat
the statute of limitations should be tolled, plaintiff does not allege that he was prevented from
filing a civil claim against Officer Lubeke. Accordingly, plaintiff has not established that he is
entitled to tolling of the statute of limitations and Claim One will be dismissed as time barred.
B. Claim Two
To establish a claim for cruel and imusual punishment due to conditions of confinement, a
plaintiff must allege facts sufficient to show (1) an objectively serious deprivation of a basic
human need, that is, one causing serious physical or emotional injury, and (2) that prison officials
were deliberately indifferent to that need. Farmer v. Brennan. 511 U.S. 825, 834 (1994); Wilson
v. Seiter. 501 U.S. 294,198 (1991).
To meet the first prong. Plaintiffmust allege facts sufficient
to show that the condition complained ofwas a "sufficiently serious" deprivation ofa basic human
need. Id Only extreme deprivationswill make out an Eighth Amendment claim, and it is
Plaintiffs burden to allege facts sufficient to show that the risk from the conditions of his
confinement was so grave that it violated contemporary notions ofdecency and resulted in serious
or significantphysical or emotionalinjury. Hudson v. McMillian. 503 U.S. 1,8 (1992); Strickler
V. Waters. 989 F.2d 1375,1379-81 (4th Cir. 1993). To meet the second prong. Plaintiff must
allege facts sufficient to show that the defendants knew of circumstances from which an inference
could be drawn that a "substantial risk of serious harm" was posed to plaintiff's health and safety,
that they drew that inference, and then disregarded the risk posed. Farmer. 511 U.S. at 837.
"[C]onditions that cannot be said to be cruel and unusual imder contemporary standards are not
unconstitutional. To the extent that such 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 (1981).
The lack of any reference in his contemporaneous grievances to being naked, and the
affidavits ofthe defendants denying that plaintiff was naked, undercut any material dispute as to
this issue. That defendants needed to place plaintiff in restraints when he was bemg escorted to
the shower, is supported by plaintiffs uncontested disciplinary record showing that he made
threats to himself, as well as to other inmates and staff at NNRJ during his time there. Plaintiff
arguesthat it is "against the law" and "an act of slavery" for him to be handcuffed while
showering, and that defendants "lied" in their affidavits and, in fact, acted with deliberate
indifference; however, in light ofthe evidence in the record that plaintiff posed a security risk to
himselfand others, plaintiff's "wholly speculative assertions will not suffice" to defeatsummary
judgment. Ross. 759F.2dat 364. Accordingly, the undisputed evidence shows that defendants
werenot deliberately indifferent in how they handled plaintiffs showers and defendant's Motion
for Summary Judgmentwill be grantedas to Claim Two.
C. Claim Three
Although thereare facts in dispute regarding the condition of the gymwhenplaintiffwas
forcedto eat limchthere one day,these facts are not materialbecausehe has failed to showthat the
condition he complains of resulted in serious or significant physical or emotional injury.
Plaintiffs allegations andarguments go to the conditions of the gym, but he has not shown thathe
suffered anymental orphysical injury as a result of eating inthese conditions foroneday. Even if
the conditions in the gym were "harsh,they are part of the penalty that criminal offenders pay for
their offenses against society." Rhodes. 452 U.S. at 347. Accordingly, the undisputed evidence
shows thatplaintiffdidnotsuffer a serious or significant physical oremotional injury as a result of
having to eat lunch in the gym.
As to plaintiffs claims regarding the conditions of solitary confinement, his conclusory
allegations that he "became mentally [and] emotionally exhausted [and] stressed out" are
insufficient to establish "that he has sustained any serious or significant physical or emotional
injury as a result ofthese conditions." Stridden 989 F.2d at 1381. hi particular,he has provided
no evidence such as his medical records to support this claim. Therefore, defendants' Motion for
SummaryJudgment will be granted as to Claim Three.
D. Claim Four
Inmates have a right to meaningfid access to the courts,whichrequires that individuals
acting undercolor of state law cannothinderan inmatein his effortsto pursuea legalclaim.
Bounds V. Smith. 430 U.S. 817,822 (1977)); Lewis v. Casev. 518 U.S. 343 (1996).
To state a
claim for denial of access to the courts, plaintiff must establish that he suffered an "actual injury
or specific harm." Hause v. Vaueht 993 F.2d 1079,1084-85 (4thCir. 1993). To make out a
primafacie case of denial of access to the courts, the inmate cannot rely on conclusory
allegations; instead, he mustidentify withspecificity an actual injury resulting fi*om official
conduct. Cochran v. Morris. 73 F.3d 1310,1316 (4th Cir. 1996). Actual injury requires the
inmate "to demonstrate that his nonfiivolous, post-convictionor civil rights legal claim has been
fiiistrated or impeded." Jackson v. Wilev. 352 F. Supp. 2d 666,679-80 (E.D. Va. 2004).
Although plaintiffhas created a factual dispute as to whether or not he was ableto call
his attorney, this disputedfact is not material as plaintiff has not established that he suffereda
harmas a result of not being ableto contacthis attorney because he has not identified any legal
matterthat was pending at the time or otherwise explained why he neededto contacthis
attorney. S^ Vanexass v. Rosser. 875 F.2d317 (4thCir. 1989) (affirming dismissal of "claim
of denial of access to legal materials and long distance phone calls to his attorney ... because
[plaintiff] does not show that actual injury resulted") (citing Maeee v. Waters. 810 F.2d 451).
Accordingly, plaintiff has not established that he suffered harm by not being able to call his
attorney and the Motion for Summary Judgment as to Claim Four will be granted.
E. Claim Five
The Due Process Clause of the Fourteenth Amendment prohibits a state from depriving
an individual of life, liberty, or property withoutdue process of law. A prisoner's liberty
interest is generally limited to being free from conditions that"impose[| atypical andsignificant
hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Connon
515 U.S. 472,484 (1995). Specifically, a prisoner has protection againstthe arbitrary
imposition of punishment byprison officials. See Wolffv. McDonnell. 418 U.S. 539,558
Defendants argue that plaintiffis not entitled to reliefunder§ 1983 because the prison
system provides postdeprivation remedies. In support of thisargument, they cite Hudson v.
Palmer. 468 U.S. 517 (1984), andits progeny. But, this lineof cases deals with"unauthorized
intentional deprivation of property," Hudson. 468 U.S. at 533, and defendants do notexplain why
an account freeze instituted in response to gambling suspicions constitutes an unauthorized
deprivation. Tothe contrary, it is reasonable to infer from plaintiff's allegations that he is
claiming thatthe freezing of his account was authorized, which would make any postdeprivation
S^ Lawrencev. Swanson Inmate Commissary Servs.. 151 F.3d 1029 (4th
Cir. 1998) (holding that"the availability ofParratt-tvpe postdeprivation remedies is irrelevant"
to claimwhere moneywas allegedly taken from a prisoner account "pursuantto established
policies") (citingZinermon v. Burch. 494 U.S. 113,136-38 (1990)).
As it stands, the record does not provide sufficient information regarding the freezing of
plaintiff's fimds. Further information is necessary to determine whether, as a matter of law, any
postdeprivation remedies afforded to plaintiff are relevant and whether plaintiff was afforded due
process. Thiscaseis remanded to the defendants as to ClaimFiveand defense counsel is directed
to file supplemental briefing within fourteen (14) days documenting:
the NNRJ's policyregarding inmate accounts, the basisuponwhichaccounts maybe
frozen, and any grievance procedures regardingaccount issues.
the dates during which plaintiff's accountwas frozen and its current status.
the nature ofthe NNRJ's agreement with the third-party provider Tech Friends and the
authority that Tech Friendshas to unilaterally freeze an inmate's accoimt.
• to the extent thatplaintiffs account remams frozen at the instruction of the NNRJ, the
evidentiary basis for this decision andplaintiff's remedy for challenging this decision.
IV. Supervisory Liability and Qualified Immunity
For the reasons stated above. Claims One through Four will be dismissed and the issues of
supervisory liability and qualified immunity need notbe addressed with regards to those claims.
Asto supervisory liability and qualified immunity with regards to Claim Five, a ruling on these
issues will be made after defendants file a supplemental motionfor summary judgment, to which
plaintiffwill have an opportunity to respond.
V. Pending Motions
A. Discovery Motions
On October 4,2016, plaintiffsubmitted pleadings respectively titled as a "Motionfor
Subpoena of Inmate Phone Records from September 30,2015 to September 30,2016," a
"Motion/Subpoenaof Inmate Account from July 30,2015 to September30,2016," a "Subpoena
Motion for Inmate DisciplinaryRecord from October 2014 when I was a New Booking From
Another Jail Till September 30,2015," and a "Motion/Subpoena for Video/Camera Footage of the
Attempted Murder on Jamar A. Cannon (2012) andVideo Footage of Jamar A. Cannon While in
E-Podand N-Pod." [Dkt. Nos. 35-38.] In response, defendants filed a Motionto Quashor Stay
Discovery, requesting that plaintiffs discovery requests be quashed or stayed pending the
outcome of defendants' Motion for Summary Judgment. [Dkt. No. 40.] Plaintiffresponded with
a "Motion to Challenge Defendants' Motion to Quash Subpoenas of Necessary Documents for
Plaintiffs discovery motions will be denied as the information requested would not have
helped plaintiffin opposing defendant's Motion for Summary Judgment. First, plaintiff seeks
phone records to show that hewas unable to call his attorney; however, for thereasons stated
above. Claim Four would fail even if plaintiffhadbeenable to show thathe wasunable to callhis
attorney. Therefore, plaintiffs request for his phone records will bedenied. Second, plaintiff
seeks information regarding hisinmate account to establish thatit was frozen; however, thatfact is
undisputed, rendering the need for his inmate account records moot.
Third, plaintiffasks for copies of his disciplinary record from October 2014 to September
2015 to establish that he had no infiractions during that time period; however, plaintiffs claims
basedon conditions of confinement fail evenifplaintiffwas not disciplined duringthat time period
because the records requested could not establish that the defendants acted withdeliberate
indifference and/or thatplamtiffsuffered a harm. Thus, plaintiffs request for his disciplinary
records will be denied. Fourth, plaintiffasksfor video footage of his altercation with Officer
Lubeke; however, this videowouldnot change the fact that ClaimOne is time barred.
Accordingly, plaintiffs request for video of his altercation with Officer Lubeke will be denied.
Finally, plaintiff seeks video footage to show that he was taken to the showers naked; however, as
previously explained, Claim Two would fail even if plaintiff had proved that he was taken to the
showers naked. For the foregoing reasons, plaintiffs discovery motions will be denied.
Defendants' Motion to Quash or Stay Discovery and plaintiffs Motion to Challenge Defendants'
Motion to Quash SubpoenasofNecessary Documents for Plaintiff will be denied as moot.
B. Motions for Extension of Time
Plaintiff also filed a "Motion for Time Extension in Answering Defendants' Factless
Summary Judgment" and a "Motion for Time Extension on [sic] Response to Defendants' Motion
of Summary Judgmentfor the Following Reasons." [Dkt. Nos. 39,43.] As plaintifftimely filed
a responseto defendants' Motion for Summary Judgment, these motions will be denied as moot.
Defendants have established that they are entitled to summaryjudgment as to Claims One
through Four. Accordingly, defendant's Motion for Summary Judgment will be granted as to
those claimsand will be deniedwithoutprejudiceas to ClaimFive with leaveto refile a motionfor
summary judgmenton that claim. Finally, for the reasons statedabove, plaintiff s pending
discovery motionswill be deniedand the remaining pendingmotionswill be denied as moot. An
appropriate Order shall issue.
Leonie M. Brinkema
United States District Judge »
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