Coles v. Clarke et al
Filing
88
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 09/12/14. (kyou, )(copy mailed to Pro Se party)
E
IN THE UNITED STATES DISTRICT COURT
I
L
>}
SEP I 2 2014
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
CLbhi\, U.S. DiSTHICT COURT
RICHMOND, VA
TIMOTHY LEE COLES,
Plaintiff,
Civil Action No.
v
HAROLD CLARKE,
3:12CV01
et al.,
Defendants.
MEMORANDUM OPINION
Timothy Lee
Coles,
filed this 42 U.S.C.
a Virginia prisoner proceeding pro
§ 19831 action.
se,
The matter is before the
Court on the Motion to Dismiss filed by the defendants2 named in
the Particularized Complaint and on
motions
filed by the parties.
a series of
For the
reasons
non-dispositive
that
follow the
Court will Court will grant the Motion to Dismiss.
1 That statute provides, in pertinent part:
Every person who,
under color of any statute
. . . of any State . . . subjects, or causes to be
subjected, any citizen of the United States or other
person
within
the
jurisdiction
thereof
to
the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable
to the party injured in an action at law ....
42 U.S.C.
§
1983.
2 The
Court
identifies
the
individual
defendants
in
conjunction with the discussion of the allegations and claims in
the Particularized Complaint.
See infra Part II.
I
I.
"A
motion
sufficiency
contests
to
of
a
STANDARD OF REVIEW
dismiss
under
complaint;
surrounding the
Rule
12(b)(6)
importantly,
facts,
applicability of defenses."
it
the merits
does
tests
not
the
resolve
of a claim,
or the
Republican Party of N.C. v. Martin,
980 F.2d 943, 952
(4th Cir.
1992)
(citing 5A Charles A. Wright &
Arthur R. Miller,
Federal Practice and Procedure § 1356
(1990)).
In considering a motion to dismiss for failure to state a claim,
a plaintiff s well-pleaded allegations are taken as true and the
complaint
is
plaintiff.
Cir.
in
Mylan Labs.,
1993);
applies
viewed
see
only
to
factual
a
identifying
pleadings
Ashcroft v.
The
Inc.
also Martin,
considering
conclusions,
the
motion
are
not
Iqbal,
Federal
light
v. Matkari,
980
dismiss
that,
entitled
556 U.S.
of
662,
to
Civil
the
1134
(4th
principle
and
are
"a
to
choose
they
to
This
however,
the
679
952.
can
because
favorable
7 F.3d 1130,
F.2d at
allegations,
to
Rules
most
begin
no
assumption
court
more
of
by
than
truth."
(2009).
Procedure
"require [ ] only
^a
short and plain statement of the claim showing that the pleader
is
entitled
to
relief,'
notice of what the
rests."'
(second
U.S.
41,
Bell
47
order
to
^give
the
defendant
fair
. . . claim is and the grounds upon which it
Atl.
alteration
in
Corp.
in
(1957)).
v.
Twombly,
original)
550
(quoting
Plaintiffs
cannot
U.S.
544,
Conley
v.
satisfy
555
(2007)
Gibson,
this
355
standard
with complaints containing only "labels and conclusions" or a
"formulaic
Id.
recitation
of
the
(citations omitted).
sufficient
level,"
"to
id.
raise
elements
of
a
cause
of
action."
Instead, a plaintiff must allege facts
a right
(citation
to
relief
omitted),
above
stating
the
a
speculative
claim
that
"plausible on its face," rather than merely "conceivable."
at
570.
"A
pleads
factual
reasonable
U.S.
at
plausibility when
that
that
alleged."
550
facial
content
inference
misconduct
Corp. ,
claim has
allows
the
Iqbal,
the
court
defendant
is
556 U.S.
at
678
in
order
Id.
plaintiff
to
draw
the
for
liable
Therefore,
556).
the
is
the
(citing Bell Atl.
for
a
claim or
complaint to survive dismissal for failure to state a claim,
the
plaintiff
the
must
"allege
elements of
[his or]
&
F.3d
Co. ,
324
Microsoft
United
Corp.,
her claim."
761,
309
765
F.3d
193,
213
the
inmate's
constitutional
face of
(4th
his
Cir.
Hampton,
1151
advocate,
281
E.I.
2003)
(4th
(4th Cir.
sua
sponte
claims the inmate
complaint.
1997)
DuPont de Nemours
(citing
Cir.
J.,
1278
Cir.
Dickson
Iodice
2002);
v.
v.
1978),
it
does
developing
not
act
statutory
as
and
failed to clearly raise on the
See Brock v.
(Luttig,
775 F.2d 1274,
(4th
all
Gordon v.
1147,
270,
Cir.
state
while the Court liberally construes pro se complaints,
F.2d
F.3d
(4th
Bass v.
to
Lastly,
574
289
sufficient
2002)).
Leeke,
States,
facts
Carroll,
concurring);
(4th Cir.
1985).
107
F.3d 241,
Beaudett
v.
City
243
of
II.
In 2011,
("SUSP").
security
Coles was incarcerated in Sussex II State Prison
(Part. Compl. 1-2.)3
prison."
Daniels,
at
SUMMARY OF ALLEGATIONS AND CLAIMS
(IcL_
SI
10.)
On
August
4,
2011,
SUSP,
conducted
a
reclassification
review
"[D]ue to plaintiff being (12)
was eligible
and
suitable
security
for
Nevertheless,
non-violent
of
I
Coles.
reduction"
[s]ecurity facility
offenders)
(Id.
months charge free, he
for a security level
possibly a transfer to a "Level
. . . ."
(minimum
(Id.
following a hearing conducted on August
and
f
10,
2.)
2011,
Daniels and Roy Clary4 "arbitrarily . . . recommended" that
Coles
remain at
Assistant
$1 1,
SUSP.
Warden
of
(Id.
SSIIP,
SISI
3,
approved
5.)
Marie Vargo,
then the
that
recommendation.
(Id.
6-7.)
Coles
then
filed
an
inmate
grievance
challenging
refusal to reassign him to a lower security level prison.
f
Anton
the Correctional Institutional Rehabilitation Counselor
SISI 1-2.)
A.
SUSP is a "Level IV maximum
7.)
Prison
officials,
including
Harold
Clarke,
Gail
the
(Id.
Jones,
3 Because Coles's original complaint failed to provide each
defendant with fair notice of the
which his or her liability rested,
on
July
2,
2013,
the
particularized complaint.
Particularized
Complaint
facts and legal basis upon
by Memorandum Order entered
Court
directed
Coles
to
file
a
On July 22,
2013, Coles filed his
(ECF
No.
44),
however,
the
Particularized
Complaint
only
marginally
deficiencies of the original complaint.
improved
the
4 In 2011, Clary served as the "Unit Manager of #3 Building"
at SUSP.
(Part.
Compl.
SI 1.)
Gary Bass,5 and Wendy Hobbs either denied his grievance and/or
failed to take favorable action on his appeal from the denial of
the grievance.
SSIIP.
(IdL
(Id.
SISI
7-9.)
Therefore,
Coles
remained at
^ 11.)
On December 8, 2011, at 5:15 p.m., Coles was using a urinal
at
SUSP
when
fellow
assaulted Coles.
coma
due
Asnitch'
to
it
inmate
(Id.
was
SI
D.
11.)
said
Thomas,
Coles
and
who
is
a
gang
member,
"was nearly beaten into a
reported
that
plaintiff
was
a
and such labeling had been disseminated throughout the
SUSP's compound."
Following
the
(Id. )6
assault,
College of Virginia
was
x-rayed,
due
to
(MCV),
stitched
plaintif f [' ]s
Coles
Richmond!,]
up[,]
left
"was
and
eye
taken
the
Medical
Virginia where plaintiff
scheduled
socket,
to
for
left
plastic
cheekbone,
surgery
and
the
5 Harold Clarke is the Director of the Virginia Department
of Corrections ("VDOC") .
(Part. Compl. SI 1.)
In 2011, Gary
Bass served as Chief of Operations of the Central Classification
Services of the VDOC, and Wendy Hobbs
Regional Director of the VDOC.
(Id.)
served
as
the
Eastern
6 Coles alleges that he "was talked about being a ^snitch'
throughout the compound of SUSP due his consistencies [sic] of
filing numerous . . . complaints, grievances, civil suits, and
criminal
complaints
on
the
SUSP's
prison
officials
and
administrative
staffs . . . ."
(Part.
Compl.
SI
4
(capitalization corrected).)
Coles is far from clear as to who
labeled him a snitch.
His choice of language suggests this was
a label applied by inmates "throughout the compound of SUSP" to
Coles.
(Id.)
Coles fails to allege facts that plausibly
suggest that any of the named Defendants labeled Coles a snitch
as
a
means
of
retaliating
against
him
for
litigious
propensities.
Nor
does
Coles
allege
facts
that plausibly
indicate
Defendants
realized
that
snitch.
5
inmates
described
Coles
as
a
cradle
of
the
left
side
severely."
(Id. SI 12.)
SUSP.
of
plaintiff's
nose
fractured
SI 13. )
(IcL
Shortly thereafter,
was
Coles returned to
Upon his return to SUSP, prison officials initially placed
Coles
in the infirmary.
(Id.)
On December
11,
2011,
prison
officials moved Coles from the infirmary to a segregation unit.
(Id.)
be
On December 13,
released
back
2011, Roy Clary told Coles "that he would
to
[the]
General
Population . . . ."
(Id.)
Coles told Clary he feared for his safety in general population.
(Id. )
Clary
told
institutional
Clarke,
that
infraction if
population.
Coles
Coles
he
Coles
would
be
charged
with
an
refused to return to the general
(Id.)
names
Bass,
the
Hobbs,
"Defendants").
(Id.
following
Clary,
individuals
Vargo,
SI l.)7
and
as
Daniels
defendants:
(collectively
Coles contends Defendants violated
his rights under the Eighth Amendment8 by continuing to house him
at SUSP after August 4, 2011.
Defendants
Offender
are
D.
liable
Thomas"
"for
because
(Id. at 6.)
the
brutal
they
kept
Coles contends that
aggravated
him
at
"the
assault
by
hostile[,]
7 Although Coles mentions David B. Everett, the Corrections
Operations Officer, at end of his Particularized Complaint, he
fails to list him as a defendant in the first paragraph of the
Particularized
Complaint
as
required by
the
July
2,
2013
Memorandum Order.
8 "Excessive bail shall not be required, nor excessive fines
imposed,
Const,
nor
amend.
cruel
and
unusual
VIII.
6
punishments
inflicted."
U.S.
volatile environment of
SUSP ....
after being talked about
as being a 'snitch' throughout the SUSP's compound." (Id. at 6-
7.)
Coles demands $500,000.00.
(Id^ at 7.)9
III.
It
is
clear
prison officials
hands
833
the
Eighth
(1994)
caused
Amendment
(quoting
Farmer v.
Cortes-Quinones
558 (1st Cir. 1988) ).10
by
liability
another
for
prisoner's
the
inmate
provides
See
it
is
the
Brennan,
v.
a
duty
on
into
at
842
of
the
constitutional
responsible
834.
The
conscious disregard
touchstone
825,
Nevertheless, not every harm
officers
id.
511 U.S.
Jimenez-Nettleship,
translates
corrections
safety.
emphasized that
imposes
"'to protect prisoners from violence at the
of other prisoners.'"
F.2d 556,
that
that
ANALYSIS
for
for
Supreme
the
Court
intolerable
deliberate
risks
indifference
standard for Eighth Amendment claims:
[A] prison official cannot be found liable under the
Eighth
Amendment
for
denying
an
inmate
humane
conditions
of
confinement
unless
the
official
knows
of
and disregards an excessive risk to inmate health or
safety; the official must both be aware of facts from
which
the
inference
could
be
risk of serious harm exists,
drawn
that
a
substantial
and he must also draw the
inference.
9 On August 16, 2012, the Court received notice from Coles
that
the
VDOC
had
Correctional Center.
moved
(ECF No.
him
25,
from
at
SUSP
to
Green-Rock
1.)
10 The Court's analysis borrows heavily from the decision in
Bond v. Story,
Nov.
17,
2011).
No.
3:09cvl47,
2011 WL 5599390,
at *3-4
(E.D. Va.
Id.
at 837.
Thus,
Farmer teaches "that general knowledge of
facts creating a substantial risk of harm is not enough.
prison
official
general
facts
inmate."
must
Johnson v. Quinones,
(4th Cir.
511 U.S.
address
"[a]t
sufficiently
at
834
Rausch,
what
n.3.
have
point
a
risk
for
of
Eighth
it
525
at
Brown,
Accordingly,
that
inmate
assault
Amendment
claim.
Grieveson
commit
the
does
v.
hands
F.
Supp.
not
Thus,
fellow
support
an
Eighth
763,
.
Va.
.
.
a
."
1995).
Amendment
776-77
(7th
2008) .
The Motion to Dismiss turns on whether Coles
risk
may be
inmates
(E.D.
F.3d
v.
"[a]ny time an
74
538
and many
Riccardo
67,
Anderson,
511
"prisons are
some risk that he
of
becomes
purposes."
more."
2004).
there is
883
risk
to
(7th Cir.
incarcerated,
v.
that
those
129 F.3d 336,
is understood that,
propensity
Westmoreland
Cir.
Bruce,
Inmates get there by violent acts,
violence
See
a
However,
375 F.3d 521,
of
between
145 F.3d 164, 168 (4th Cir. 1998)
at 837); Rich v.
substantial
individual is
victim
inference
the Supreme Court of the United States did not
dangerous places.
prisoners
the
1997)) .
In Farmer,
U.S.
draw
and the specific risk of harm confronting the
(citing Farmer,
340
also
The
plausibly
of
officials
indicate
assault
to
be
to
that
Defendants
Coles.
actually
aware
The
of
knew
courts
a
of
have
alleges
a
substantial
found
sufficiently
facts
prison
substantial
risk of assault
"where
custodians
know of threats
to specific
prisoners posed by a specific source, or place prisoners in the
same
cell
Whaley
as
v.
an
inmate
Erickson,
(citing Brown v.
known
339
Budz,
F.
to
have
App' x
violent
619,
398 F.3d 904,
622
propensities."
(7th
914-15
Cir.
(7th Cir.
2009)
2005)).
Coles alleges no such facts.
Additionally,
an
inmate
may
satisfy
the
deliberate
indifference standard by alleging facts that indicate "the risk
of serious harm [is]
or
assailant
Supp.
[is]
at 75.
substantial even though the precise victim
not
ascertainable."
For example,
Westmoreland,
883
F.
a constitutionally significant risk
of assault exists if "^rape was so common and uncontrolled that
some potential victims dared not sleep [but]
leave
their
nearest
the
original)
"as
the
beds
guard
and
spend
station.'"
(quoting Farmer,
vagueness
of
a
the
night
Id.
511 U.S.
threat
instead . . . would
clinging
(alteration
at
F.3d
563,
569
(7th Cir.
2008)
(citation
the
bars
omission
in
Nevertheless,
the
actual knowledge of impending harm decreases."
548
and
843-44).
increases,
to
likelihood
of
Dale v. Poston,
omitted)
(internal
quotation marks omitted).
Coles
grounds
his
contention
that
Defendants
acted
with
deliberate indifference on the fact that:
(1)
SUSP "surrounded by
hardened and violent
offenders who [ ] are
criminals with long . . . sentences"
(Part.
they kept him at
Compl.
SI 4 (spelling
corrected)) and (2)
(Id.)
that inmates had labeled Coles as a snitch.
Coles's first contention alleges merely that there was a
risk of assault because the inmates with whom he was housed had
been
convicted
Eighth
Amendment
Moreover,
that
of
violent
claim.
Coles
crimes.
See
Grieveson,
does
538
not
support
other prisoners.
significant
an
F.3d at 776-77.
has not plausibly alleged any facts
inmates at SUSP faced any
2006)
That
indicating
risk of assault by
Pinkston v. Madry, 440 F.3d 879, 889 (7th Cir.
(alteration in original;
internal quotation marks omitted)
(observing that "[i]n order to infer callous
indifference when
an official fails to protect a prisoner from the risk of attack,
there must be a strong likelihood rather than a mere possibility
that
violence
will
occur") ;
Westmoreland,
883
F.
Supp.
at
76
("The fact that there were as many as 2.5 reported assaults per
day
in
more
January
than
prohibited
does
1300
not
permit
inmates
substantial
was
risk
a conclusion
subjected
of
harm
that
to
solely
each
of
the
constitutionally
by
virtue
of
his
incarceration in the City Jail.")
Nor does the allegation that someone had labeled Coles as a
snitch
support
deliberate
would
at
inference
that
Defendants
acted
indifference because Coles does not allege
permit
inmates
an
a
reasonable
SUSP
deemed
538 F.3d at 775-76
inference
Coles
to
be
that
a
Defendants
snitch.
See
with
facts that
knew
that
Grieveson,
(dismissing claim where prison officials were
10
not aware that the plaintiff "was perceived as a snitch by his
fellow
inmates").
obtained his
More
label
as
a
importantly,
snitch
for
Coles
those
circumstances,
even
if
(Part.
little
reason
to
believe
Compl.
Defendants
inmates at SUSP referred to Coles as a snitch,
have
that
he
harassing prison officials,
rather than snitching on other inmates.
Under
states
Coles's
fellow
knew
SI
4.)
that
the
Defendants would
inmates
bore
him
ill will for harassing prison officials.
Because
suggest
Coles
Defendants
Motion to Dismiss
has
acted
(ECF No.
IV.
Because
Reconsider
the
failed
with
to
allege
facts
deliberate
that
plausibly
indifference,
the
64) will be granted.
OUTSTANDING MOTIONS
Defendants
Request
to
have
Serve
been
served,
Summonses
(ECF
Coles's
No.
Motion
to
will
be
59)
denied as moot.
Coles
greater
has
access
preliminary
prejudice
moved
to
the
injunction
to
Coles's
for
a
preliminary
prison
(ECF
law
No.
ability
to
pursuing a separate civil action.
11
injunction
library.
61)
will
seek
The
be
to
motion
denied
injunctive
gain
for
a
without
relief
by
The
discovery
moot.11
parties'
outstanding
motions
(ECF Nos.
69,
76,
70,
72,
seeking
79,
83)
or
will
opposing
be denied as
The action will be dismissed.
The
Clerk
is
directed
to
send
a
copy
of
the
Memorandum
Opinion to Coles and counsel of record.
/*/
/££/
Robert E. Payne
Senior United States District Judge
Richmond,
Date:
Virginia
September T^T 201
11 Coles fails to demonstrate that the discovery he seeks is
necessary to resist the Motion to Dismiss.
12
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