Nahwoosky v. Unknown

Filing 33

MEMORANDUM OPINION. Please see for complete details. Signed by District Judge James R. Spencer on 02/29/2016. Clerk mailed copy to pro se Plaintiff. (nbrow)

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

FEB 2 9 2016
CLERK, U.S. DISTRICT COURT

RICHARD F. NAHWOOKSY,

RICHMOND, VA

Plaintiff,

v.

Civil Action No. 3:14CV853

HAROLD CLARKE, et al.,
Defendants.

MEMORANDUM OPINION
Richard F. Nahwooksy, a Virginia prisoner proceeding prose and informa pauperis,
brings this action pursuant to 42 U.S.C. § 1983. The matter is before the Court on the Court's
authority to review complaints by individuals proceeding informa pauperis, see 28 U.S.C.

§ 1915(e)(2), and Defendants' Motion for Summary Judgment (ECF No. 15) on the grounds that,
inter alia, Nahwooksy failed to exhaust his administrative remedies. These matters are ripe for
disposition.
Nahwooksy's Complaint, with attachments, spans 285 pages. (ECF No. 7.) 1 Nahwooksy
raises seven separate causes of action, each of which includes a host of sub-claims in various
stages of factual and legal development. Given these circumstances, the Court will proceed to
dismiss Nahwooksy's frivolous or inchoate claims under 28 U.S.C. § 1915(e)(2), prior to turning
to Defendants' Motion for Summary Judgment.

I. Review Under 28 U.S.C. § 1915(e)(2)
When an individual is proceeding in forma pauperis, this Court must dismiss the action if
the Court determines the action (1) "is frivolous" or (2) "fails to state a claim on which relief
1

Although the docket describes this document as an amended complaint, it is actually the
original complaint because Nahwooksy's initial filing in this matter was simply a letter (ECF
No. 1.)

may be granted." 28 U.S.C. § 1915(e)(2). The first standard includes claims based upon '"an
indisputably meritless legal theory,"' or claims where the "'factual contentions are clearly
baseless."' Clay v. Yates, 809 F. Supp. 417, 427 (E.D. Va. 1992) (quoting Neitzke v. Williams,
490 U.S. 319, 327 (1989)). The second standard is the familiar standard for a motion to dismiss
under Fed. R. Civ. P. 12(b)(6).
"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;
importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party ofN.C. v. Martin, 980 F.2d 943, 952 (4th Cir.
1992) (citing SA 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 plaintiffs well-pleaded
allegations are taken as true and the complaint is viewed in the light most favorable to the
plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980
F.2d at 952. This principle applies only to factual allegations, however, and "a court considering
a motion to dismiss can choose to begin by identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009).
The Federal Rules of Civil Procedure "require[] only 'a short and plain statement of the
claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of
what the ... claim is and the grounds upon which it rests."' Bell At/. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (second alteration in original) (quoting Conley v. Gibson, 355 U.S. 41,
4 7 (1957)). Plaintiffs cannot satisfy this standard with complaints containing only "labels and
conclusions" or a "formulaic recitation of the elements of a cause of action." Id (citations
omitted). Instead, a plaintiff must allege facts sufficient "to raise a right to relief above the

2

speculative level," id (citation omitted), stating a claim that is "plausible on its face," id. at 570,
rather than merely "conceivable." Id. "A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Bell At/. Corp., 550 U.S. at 556). In
order for a claim or complaint to survive dismissal for failure to state a claim, therefore, the
plaintiff must "allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.1
DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft
Corp., 309 F.3d 193, 213 (4th Cir. 2002); Iodice v. United States, 289 F.3d 270, 281 (4th

Cir. 2002)). Lastly, while the Court liberally construes prose complaints, Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1978), it does not act as the inmate's advocate, sua sponte developing
statutory and constitutional claims the inmate failed to clearly raise on the face of his complaint.
See Brockv. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J., concurring); Beaudettv. City
ofHampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

A. Summary of Pertinent Allegations
In December of2013, Nahwooksy was confined in the Powhatan Correctional Center
("Powhatan"). (Compl. 4.)2 On December 5, 2013, Nahwooksy injured his knee. (Id ~~ 1416.) A doctor subsequently issued Nahwooksy a knee brace and a pair of crutches.

(Id~

42.)

Early in the morning of December 30, 2013, institutional investigators came to
Nahwooksy's cell to conduct a cell search.

(Id.~

48.) Investigators Serrano and Leonard

entered Nahwooksy's cell and pulled Nahwooksy out of his cell.
for his knee brace. (Id.

~

(Id~

50.) Nahwooksy asked

51.) Investigators Serrano and Leonard and Correctional Officer Tally

denied Nahwooksy's request for his knee brace. (Id.)
2

The Court corrects the capitalization, spelling, and punctuation in the quotations from
the parties' submissions.
3

Correctional Officer Tally cuffed Nahwooksy and placed him on a bench in front of his
cell. (Id.~ 54.) Investigators Serrano and Leonard escorted Nahwooksy's cell partner, Anthony
Romero-Cruz, to the shower to conduct a strip search. (Id. ~ 55.) Investigator Maynard-Simon
remained at the cell with Nahwooksy. 3 (Id. ~ 56.)
Shortly thereafter, Romero-Cruz became involved in an altercation with Investigators
Serrano and Leonard. (Id.

~

59.) While Investigator Maynard-Simon was preoccupied with the

altercation, Nahwooksy "got off the bench and hobbled as fast as [he] could to the cell ... , and
shut the door behind [himself] as he went back into the cell." (Id. ~ 63.) Investigator MaynardSimon noticed Nahwooksy's actions and yelled repeatedly for assistance in retrieving
Nahwooksy.

(Id.~

64.) Nahwooksy candidly acknowledges that, "[w]hile this was going on,

[he] flushed all [of his] contraband." (Id. ~ 65.) Correctional Officer Tally asked Investigator
Maynard-Simon how Nahwooksy could have gotten back in the cell, while handcuffed and with
the use of only one leg. (Id. ~~ 66, 68.)
When Correctional Officer Tally entered the cell to retrieve Nahwooksy, Nahwooksy
asked for his knee brace. (Id. ~ 69.) Correctional Officer Tally denied this request. (Id.) Once
Nahwooksy left the cell, Investigator Maynard-Simon threatened to "get" Nahwooksy.
(Id.~

(Id.

~

70.) Investigator Maynard-Simon started screaming that Nahwooksy had assaulted her.
71.)
Correctional Officers Tally and John Doe then began to escort Nahwooksy out of the cell

block with his hands cuffed behind him. (Id.

~

75.) Correctional Officers Tally and John Doe

showed Nahwooksy a cell phone lying on the floor, which apparently had been recovered from
Nahwooksy's cell partner. (Id.~~ 74-77.) Nahwooksy kicked the cell phone. (Id.~ 77.)
3

The Court utilizes the spelling of Maynard-Simon's and Serrano's names found in the
Motion for Summary Judgment.
4

Sergeant White hit Nahwooksy from behind and knocked him to the ground. (Id. if 78.)
Correctional Officers Tally and John Doe fell on top of Nahwooksy, further injuring
Nahwooksy's knee. (Id. ifif 79-80.) Sergeant White then stood over Nahwooksy and pulled and
twisted Nahwooksy's injured knee while the knee crackled and popped. (Id.

if 82.) Sergeant

White then shackled Nahwooksy and, along with Correctional Officer Tally, dragged him off of
the cell block. (Id.

if 83.) Two new correctional officers then dragged Nahwooksy to the special

housing unit, while Investigator Maynard-Simon walked beside him. (Id. ifif 88-93.)
That afternoon, Nahwooksy was charged with Possession of a Communication Device
and Simple Assault Upon a Non-Offender. (Id. ifif 121-25.) On January 9, 2014, after two
separate disciplinary hearings, Hearing Officer Leabough found Nahwooksy guilty of the
foregoing charges. (Id. ifif 158-205.)
On February 23, 2014, Nahwooksy was transferred from Powhatan to Keen Mountain
Correctional Center. (Id.

if 232.)

Nahwooksy names the following individuals as Defendants: Harold W. Clarke, the
Director of the Virginia Department of Corrections ("VDOC"); Jeffrey Dillman, the former
Warden of Powhatan; E.P. Locust, the Manager of the Ombudsman Service Unit of the VDOC;
Leabough, the Inmate Hearings Officer at Powhatan; Maynard-Simon, an Intelligence Officer at
Powhatan; Tally, a correctional officer at Powhatan; White, a Sergeant at Powhatan; and John
Doe, a correctional officer.
B. Nahwooksy's Claims

In specifying his claims for relief, Nahwooksy, repeatedly provides the following
unhelpful statement of his claims: "Eighth,[4] Fifth[5] and Fourteenth[6 ] Amendments were
4

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted." U.S. Const. amend. VIII.
5

violated. Cruel and unusual punishment - excessive force- deliberate indifference, medical deliberate indifference, due process rights, equal protection, excessive force - deliberate
indifference, fundamental fairness, fundamental rights, substantive and procedural rights, 'justice
and liberty,' and Disability Act, failure to protect." (See, e.g., Compl.

~

325.) Courts must

liberally construe pro se civil rights complaints in order to address constitutional deprivations.

Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Nevertheless, "[p]rinciples requiring
generous construction of pro se complaints are not ... without limits." Beaudet! v. City of

Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). "District judges are not mind readers ... [and]
cannot be expected to construct full blown claims from sentence fragments, which is essentially
what [Nahwooksy] is seeking here." Id
For example, Nahwooksy fails to articulate how the Fifth Amendment was implicated,
much less violated, by Defendants' conduct. Accordingly, Nahwooksy's claims that Defendants
violated his rights under the Fifth Amendment will be DISMISSED. Similarly, Nahwooksy fails
to provide a coherent statement of how his rights were violated under the Equal Protection
Clause of the Fourteenth Amendment. Additionally, to the extent Nahwooksy seeks to raise
5

This amendment provides:

No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury, except in cases
arising in the land or naval forces, or in the Militia, when in actual service in time
of War or public danger; nor shall any person be subject for the same offence to
be twice put in jeopardy of life or limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for public use,
without just compensation.
U.S. Const. amend. V.
6

No State shall ... deprive any person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const.
amend XIV,§ 1.
6

claims under the Americans with Disabilities Act ("ADA"), he fails to state a cognizable claim. 7
Accordingly, any Equal Protection and ADA claims will be DISMISSED.
In his Sixth Cause of Action, Nahwooksy asserts that his rights under the Sixth
Amendment8 were violated by Defendant Leabough's conduct in convicting Nahwooksy of two
institutional infractions. "An inmate's rights at prison disciplinary hearings are defined by the
Due Process Clause of the Fourteenth Amendment, rather than the Sixth Amendment guarantees
for criminal prosecutions." Coles v. Virginia, No. 3:01CV131, 2001WL34804602, at *3 (E.D.
Va. Nov. 7, 2001) (citing Wolff v. McDonnell, 418 U.S. 539, 568-69 (1974)). Accordingly,
Nahwooksy's Sixth Amendment claims will be DISMISSED.
Nahwooksy further contends that Defendants violated both his Eighth Amendment rights
and his Fourteenth Amendment substantive due process rights. "[I]t is now well established that
the Eighth Amendment 'serves as the primary source of substantive protection to convicted
prisoners,' and the Due Process Clause affords a prisoner no greater substantive protection 'than
does the Cruel and Unusual Punishments Clause."' Williams v. Benjamin, 77 F.3d 756, 768 (4th
Cir. 1996) (quoting Whitley v. Albers, 475 U.S. 312, 327 (1986)). Accordingly, to the extent
7

To state a claim for relief under Title II of the ADA, Plaintiff must allege: (1) he has a
disability; (2) he is otherwise qualified to receive the benefits of a public service, program, or
activity; and (3) he was excluded from participation in or denied the benefits of such service,
program, or activity, or otherwise discriminated against, on the basis of his disability.
Constantine v. Rectors & Visitors of George Mason Univ., 411F.3d474, 498 (4th Cir. 2005)
(citation omitted).
8

That Amendment provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury ... and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.
U.S. Const. amend. VI.
7

Nahwooksy challenges the conditions of his confinement or the use of excessive force against his
person, the Court will evaluate that claim under the Eighth Amendment.
Pared of legal surplusage, Nahwooksy raises the following grounds for relief: 9
Claim I

Defendant Clarke violated Nahwooksy's rights:
(a) under the Eighth Amendment when he failed to protect Nahwooksy
from the excessive force used against Nahwooksy by his subordinates,
(Compl. ilil 320-21 );
(b) by failing to ensure that Nahwooksy received due process in
conjunction with his institutional convictions for Simple Assault upon a
Non-Offender and Possession of a Communication Device, (id).

Claim 2

(a) Defendant Locust violated Nahwooksy's rights under the Eighth
Amendment when he failed to respond appropriately to the grievances
regarding the threats to and attacks upon Nahwooksy. (Id iJiJ 322-23.)
(b) Defendant Locust violated Nahwooksy's rights under the Fourteenth
Amendment when he failed to respond appropriately to his grievances
and ensure the grievance procedure functioned properly. (Id)

Claim 3

Defendant Dillman violated Nahwooksy's rights:
(a) under the Eighth Amendment when he failed to protect Nahwooksy
from the excessive force used against Nahwooksy by Dillman's
subordinates, (Id. iJ1324-25);
(b) under the Fourteenth Amendment by failing to ensure that N ahwooksy
received due process in conjunction with his institutional convictions for
Simple Assault Upon a Non-Offender and Possession of a Communication
Device, (id);
(c) under the Eighth Amendment by failing to ensure that Nahwooksy
received appropriate medical care for the injuries caused by Defendant
White, (id , 325.F).

Claim 4

Defendant Leabough violated Nahwooksy's rights under the Fourteenth
Amendment by denying Nahwooksy due process in conjunction with his
convictions for Simple Assault upon a Non-Offender and Possession of a
Communication Device. (Id. ,, 326-27).

Claim 5

(a) Defendant Maynard-Simon violated Nahwooksy's rights under the
Eighth Amendment by falsely stating Nahwooksy had assaulted her,

9

In reciting Nahwooksy's legal claims for relief the Court focuses upon that section of
his Complaint where he lists his "claims" and "causes of action" (Compl. 1~ 320-33), rather than
on the hundreds of factual allegations that precede that section. Cochran v. Morris, 73 F.3d
1310, 1318 (4th Cir. 1996) (observing that a court "is not required to piece together causes of
action from fragmentary factual recitations").

8

which encouraged Defendant White to attack Nahwooksy. (ld.1f1f 32829.)
(b) Defendant Maynard-Simon violated Nahwooksy's rights under the
Fourteenth Amendment by retaliating against him and falsely charging
him with assault. (Id)
Claim 6

Defendant White violated Nahwooksy's rights under the Eighth
Amendment when he used excessive force against Nahwooksy.
10
(Id. 1f1f 331.)

Claim 7

(a) Defendant Tally violated Nahwooksy's rights under the Eighth
Amendment when he permitted Defendant White to assault Nahwooksy.
(Id. 1f1f 332-33.A-B.)
(b) Defendant Tally violated Nahwooksy's rights under the Eighth
Amendment when he helped Defendant White drag Nahwooksy from the
cell block. (Id 1f 333.C.)
(c) Defendant Tally violated Nahwooksy's rights under the Eighth
Amendment by failing to provide Nahwooksy a knee brace or otherwise
attend to his medical needs. (Id. 1f 333.D.)
(d) Defendant John Doe, a correctional officer, violated Nahwooksy's
rights under the Eighth Amendment when he permitted Defendant White
to assault Nahwooksy. (Id. 1f1f 332-33.A-B.)

II. Motion For Summary Judgment
Summary judgment must be rendered "ifthe movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed.
R. Civ. P. 56(a). The party seeking summary judgment bears the responsibility of informing the
Court of the basis for the motion and identifying the parts of the record which demonstrate the
absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323
( 1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive
issue, a summary judgment motion may properly be made in reliance solely on the pleadings,
depositions, answers to interrogatories, and admissions on file." Id. at 324 (internal quotation
marks omitted). When the motion is properly supported, the nonmoving party must go beyond
10

Nahwooksy also mentions that Defendant White was the supervisor of the Special
Housing Unit and had "complete control over ... Nahwooksy and all his paperwork." (Compl.
1f 331.F.) Nahwooksy, however, fails to explain what action Defendant White took in his role as
the supervisor of the Special Housing Unit that violated Nahwooksy's constitutional rights.
9

the pleadings and, by citing affidavits or '"depositions, answers to interrogatories, and
admissions on file,' designate 'specific facts showing that there is a genuine issue for trial."' Id.
(quoting former Fed. R. Civ. P. 56(c), (e) (1986)). In reviewing a summary judgment motion,
the Court "must draw all justifiable inferences in favor of the nonmoving party." United States

v. Carolina Transformer Co., 978 F.2d 832, 835 (4th Cir. 1992) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986)). However, a mere "'scintilla of evidence"' will not
preclude summary judgment. Anderson, 477 U.S. at 251 (quoting Improvement Co. v. Munson,
81 U.S. (14 Wall.) 442, 448 (1872)).
Moreover, not all disputes of fact preclude summary judgment. Instead, "the requirement
is that there be no genuine issue of material fact." Id. at 248. With respect to materiality,
"[o ]nly disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment." Id. As to genuineness, the nonmoving party
"must produce ... evidence that creates a fair doubt; wholly speculative assertions will not
suffice." Bongam v. Action Toyota, Inc., 14 F. App'x 275, 280 (4th Cir. 2001) (citation omitted)
(internal quotation marks omitted). "A motion for summary judgment may not be defeated by
evidence that is 'merely colorable' or 'is not sufficiently probative."' M & M Med. Supplies &

Serv., Inc. v. Pleasant Valley Hosp., Inc., 981F.2d160, 163 (4th Cir. 1993) (quoting Anderson,
477 U.S. at 249-50). Thus, the nonmoving party cannot '"create a genuine issue of material fact
through mere speculation."' Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008) (quoting

Beale v. Hardy, 769 F.3d 213, 214 (4th Cir. 1985)). Nor will mere "'metaphysical doubt as to
the material facts"' create a genuine dispute. Id. (quoting Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986)). Accordingly, "[t]he nonmovant can show that a dispute
is genuine only if it provides sufficient evidence so that a 'reasonable jury could return a verdict

10

for the nonmoving party."' Wiggins v. DaVita Tidewater LLC, 451 F. Supp. 2d 789, 796 (E.D.
Va. 2006) (quoting Anderson, 477 U.S. at 248). 11

A. The Parties' Submissions
In support of their Motion for Summary Judgment with respect to the issue of exhaustion,
Defendants submit: the Affidavit ofE. P. Locust, the Manager of the Ombudsman Services Unit
ofVDOC, (Mem. Supp. Mot. Summ. J. Ex. 5 ("Locust Aff.," ECF No. 16-5); a copy of Virginia
Department of Corrections Operating Procedure § 866.1 (id. Encl. A ("Operating Procedure
§ 866.1")), 12 and copies of the pertinent grievance material submitted by Nahwooksy (id Encl.
B-C). With respect to Nahwooksy's Due Process Claims, Defendants submit the affidavit of
Defendant Dillman (id. Ex. 1 ("Dillman Aff.," ECF No. 16-1), and documents related to
Nahwooksy's convictions of the two institutional offenses described above, (Dillman Aff. Encls.
A-H).
Nahwooksy submitted a Memorandum in Opposition to the Motion for Summary
Judgment wherein he references his Complaint and the documents attached to his Complaint.
(See Pl. 's Mem. Opp'n, ECF No. 29.) Additionally, Nahwooksy submitted an affidavit. (ECF
No. 30.) The Complaint is verified under oath and will be considered in evaluating the propriety
of summary judgment. Additionally, the Court will consider the documents attached to the
Complaint and referenced in the Memorandum in Opposition to the Motion for Summary
Judgment.

11

Defendants ask the Court to dismiss some ofNahwooksy's claims because Nahwooksy
failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a). Because the
exhaustion of administrative remedies is an affirmative defense, Defendants bear the burden of
pleading and proving lack of exhaustion. Jones v. Bock, 549 U.S. 199, 216 (2007).
12

The Court has omitted the emphasis in the quotations from this document.
11

Nahwooksy swore to the entire content of his Memorandum in Opposition to Summary
Judgment. (Pl's Mem. Opp'n 49; Nahwooksy Aff. 1, 3.) The Court previously informed
Nahwooksy that:
the Court will not consider as evidence in opposition to any motion for summary
judgment a memorandum of law and facts that is sworn to under penalty of
perjury. Rather, any verified allegations must be set forth in a separate document
titled 'Affidavit' or 'Sworn Statement,' and reflect that the sworn statements of
fact are made on personal knowledge and that the affiant is competent to testify
on the matter stated therein.
(ECF No. 12, at 2 (citation omitted).) Thus, the Court will not consider any statements in the
Memorandum in Opposition to Summary Judgment as evidence.
Furthermore, "summary judgment affidavits cannot be conclusory or based upon
hearsay." Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996) (citing
Rohrbaugh v. Wyeth Labs., Inc., 916 F.2d 970, 975 (4th Cir. 1990); Md. Highways Contractors
Ass'n v. Maryland, 933 F.2d 1246, 1252 (4th Cir. 1991)). Thus, Nahwooksy's conclusory

assertions, such as "Defendant(s) have violated affiant's constitutional rights," (Nahwooksy Aff.
2), and that Defendant Leabough was ''not an impartial hearing officer," (Compl. ~ 181 ), will not
be considered in evaluating the Motion for Summary Judgment.
In light of the above submissions and principles, the following facts are established for
purposes of the Motion for Summary Judgment as set forth below in Part II.B.l and Part II.C.l.
B. Exhaustion of Administrative Remedies
1. Summary of Pertinent Facts
a. The VDOC Grievance Procedure
Operating Procedure § 866.1, Offender Grievance Procedure, is the mechanism used to
resolve inmate complaints. Most matters that concern the inmate are grievable. (Operating

12

Procedure§ 866.1.IV.M.1.) However, "[d]isciplinary hearing decisions, penalties and/or
procedural errors" are not grieveable. (Id. § 866.1.IV.M.2.a.)
Procedure § 866.1 requires that, before submitting a formal grievance, the inmate must
demonstrate that he or she has made a good faith effort to resolve the grievance informally
through the procedures available at the institution to secure institutional services or resolve
complaints. (Id § 866.1.V.A.) Generally, a good faith effort requires the inmate to file an
informal complaint form. (Id § 866.1.V.B.1.) If the informal resolution effort fails, the inmate
must initiate a regular grievance by filling out the standard "Regular Grievance" form.

(Id § 866.1.VI.A.2.)
"The original Regular Grievance (no photocopies or carbon copies) should be submitted
by the offender through the facility mail system to the Facility Unit Head's Office for processing
by the Institutional Ombudsman/Grievance Coordinator." (Id. § 866.1.VI.A.2.b.) The offender
must attach to the regular grievance a copy of the informal complaint. (Id § 866.1.VI.A.2.a.)
Additionally, "[i]f 15 calendar days have expired from the date the Informal Complaint was
logged without the offender receiving a response, the offender may submit a Grievance on the
issue and attach the Informal Complaint receipt as documentation of the attempt to resolve the
issue informally." (Id § 866.1.V.B.2.) A formal grievance must be filed within thirty days from
the date of the incident or occurrence, or the discovery of the incident or occurrence, except in
instances beyond the offender's control. (Id§ 866.1.Vl.A.1.)
Prior to review of the substance of a grievance, prison officials conduct an "intake"
review of the grievance to assure that it meets the published criteria for acceptance. (Id.

§ 866.1.VI.B.) A grievance meeting the criteria for acceptance is logged in on the day it is
received, and a "Grievance Receipt" is issued to the inmate within two days. (Id

13

§ 866.1. Vl.B.2.) If the grievance does not meet the criteria for acceptance, prison officials
complete the "Intake" section of the grievance and return the grievance to the inmate within two
working days. (Id. § 866.1.Vl.B.4.) If the inmate desires a review of the intake decision, he or
she must send the grievance form to the Regional Ombudsman within five calendar days of
receipt. (Id. § 866.1.Vl.B.5.)
Up to three levels of review for a regular grievance exist. (Id. § 866.1.VI.C.) The
Facility Unit Head of the facility in which the offender is confined is responsible for Level I
review. (Id § 866.1.VI.C. l.) If the offender is dissatisfied with the determination at Level I, he
may appeal the decision to Level II, a review which is conducted by the Regional Administrator,
the Health Services Director, or the Chief of Operations for Offender Management Services. (Id
§ 866.1.Vl.C.2.) The Level II response informs the offender whether he or she may pursue an
appeal to Level III. (Id. § 866.1.Vl.C.2.g.)
b. Facts Pertaining to Nahwooksy's Exhaustion of Administrative
Remedies
From December 30, 2013, until May 27, 2015, Nahwooksy filed 39 informal complaints,
but he only filed a regular grievance with respect to five of those informal complaints. (Locust
Aff. ~ 12.) Two of the five regular grievances pertained to medical complaints, and Nahwooksy
failed to exhaust those grievances through Level II. (Id.) Nahwooksy exhausted his
administrative remedies with respect to the remaining three grievances; however, they did not
pertain directly to claims raised in the present action. (Id.) Two grievances pertained to waking
up in pain on September 24, and 25, 2014, and the third pertained to Nahwooksy's assignment to
segregation status on September 19, 2014. (Id)
With respect to the December 30, 2013 incident and the Eighth Amendment claims
arising therefrom, on December 31, 2013, Nahwooksy filed an informal complaint asserting,
14

inter alia, that he had been unjustifiably slammed to the floor after he allegedly assaulted
Investigator Maynard-Simon. (Locust Aff. Enc. C, at 1.) On January 24, 2014, past the required
response date, VDOC staff responded "you assaulted 110 Simon, and uncooperative." (Id) On
January 29, 2014, Nahwooksy received the response to his informal complaint. (Compl. ~ 133.)
Nevertheless, the delay in receiving this response did not prevent Nahwooksy from filing a
formal grievance, in light of Operating Procedure§ 866.1.V.A.2. 13
Nahwooksy was required to file a regular grievance regarding the December 30, 2013
incident by January 29, 2014. (Locust Aff.

~

11; Operating Procedure§ 866.1.Vl.A.l.) On

January 30, 2014, Nahwooksy filed his regular grievance. (Compl. ~ 134.) The Grievance
Coordinator at Powhatan did not receive the grievance until February 18, 2014. (Locust Aff.
~

11.) The grievance was rejected because it was filed outside of the thirty-day filing period.

(Id. Encl. C, at 3.) Nahwooksy appealed that decision and it was upheld by the Regional
Ombudsman. (Locust Aff. ~ 11.)

2.

Exhaustion Analysis
a. Nahwooksy Failed to Exhaust his Administrative Remedies for
His Eighth Amendment Claims

The pertinent statute provides: "No action shall be brought with respect to prison
conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are available are
exhausted." 42 U.S.C. § 1997e(a) (emphasis added). This language "naturally requires a
prisoner to exhaust the grievance procedures offered, whether or not the possible responses cover
13

As noted above, that section provides that, "[i]f 15 calendar days have expired from the
date the Informal Complaint was logged without the offender receiving a response, the offender
may submit a Grievance on the issue and attach the Informal Complaint receipt as documentation
of the attempt to resolve the issue informally." (Operating Procedure§ 866.1.V.B.2.)
15

the specific relief the prisoner demands." Booth v. Churner, 532 U.S. 731, 738 (2001).
Generally, in order to satisfy the exhaustion requirement, the inmate must file a grievance raising
the claim and pursue the grievance through all available levels of appeal, prior to bringing his or
her action to court. See Woodford v. Ngo, 548 U.S. 81, 90 (2006). Additionally, the Supreme
Court has instructed that section 1997e(a) "requires proper exhaustion." Id at 93. The Supreme
Court explained that "[p]roper exhaustion demands compliance with an agency's deadlines and
other critical procedural rules," id. at 90, "'so that the agency addresses the issues on the
merits."' Id (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). The
applicable prison rules "define the boundaries of proper exhaustion." Jones, 549 U.S. at 218.
Exhaustion is mandatory, and courts lack discretion to waive the exhaustion requirement. Porter

v. Nussle, 534 U.S. 516, 524 (2002)
Nahwooksy failed to submit a complete and timely grievance pertaining to his Eighth
Amendment claims, thus, he has failed to comply with 42 U.S.C. § 1997e(a). See Woodford, 548
U.S. at 90. The incident giving rise to the Eighth Amendment occurred on December 30, 2013.
Under VDOC Operating Procedure§ 866.1.Vl.A.l, Nahwooksy had thirty (30) days, or until
January 29, 2014, to submit a regular grievance. N ahwooksy failed to submit a regular grievance
by that date. Thus, he failed to properly exhaust his administrative remedies for his Eighth
Amendment claims. See Woodford, 548 U.S. at 90-94 (concluding an inmate's filing of a
untimely grievance fails to satisfy the exhaustion requirement). 14

14

In Claim 3(d), Nahwooksy contends that Warden Dillman violated his rights by failing
to provide Nahwooksy with appropriate medical care while Nahwooksy was housed at
Powhatan. No evidence exists that Nahwooksy exhausted his administrative remedies with
respect to this claim.
16

b. Nahwooksy Fails to Demonstrate Exhaustion Should Be
Excused
Although "an administrative remedy is not considered to have been available if a
prisoner, through no fault of his own, was prevented from availing himself of it," Nahwooksy
fails to demonstrate that he was somehow prevented from pursuing an informal complaint or
grievance with respect to this Eighth Amendment claims. Moore v. Bennette, 517 F.3d 717, 725
(4th Cir. 2008) (citations omitted). To excuse compliance with a grievance system, courts have
required an inmate show that he was prevented from filing a grievance by affirmative action on
the part of prison officials. Graham v. Cnty. of Gloucester, Va., 668 F. Supp. 2d 734, 73 8 (E.D.
Va. 2009) (citing Brown v. Croak, 313 F.3d 109, 112-13 (3d Cir. 2002); Camp v. Brennan, 219
F.3d 279, 281 (3d Cir. 2000); Born v. Monmouth Cnty. Corr. Inst., No. 07-3771, 2008 WL
4056313, at *3-4 (D.N.J. Aug. 28, 2008)).
Nahwooksy generally alleges that Defendant Locust has "made it a general practice ... to
deny regular grievances access into the grievance process and or regular grievances will become
loss or stated they never received regular grievances to the next level." (PL 's Mem. Opp'n ~ 32.)
Furthermore, Nahwooksy suggests that Defendant White impeded his ability to exhaust his
administrative remedies because Defendant White controls all the mail in the Special Housing
Unit at Powhatan. (Compl.

~

331.F.) Nahwooksy, however, fails to support these conclusory

allegations with evidence that reflects his ability to exhaust his administrative remedies for the
present Eighth Amendment claims was frustrated by any specific actions of Defendants White or
Locust.

15

Accordingly, Claims l(a), 2(a), 3(a), 3(c), 5(a), 6, and 7(a)-(c) will be DISMISSED. 16

15

Nahwooksy insists that he has exhausted his "administrative remedies concerning not
receiving medical treatment/care, medical attention for his knee injury" by his filing of
grievances in June through August of2014 at the Keen Mountain Correctional Center. (Pl. 's
Mem. Opp'n 32.) Nahwooksy, however, has not pied a coherent claim against any of the present
Defendants for denial of medical care while at Keen Mountain Correctional Center.
17

Defendants also vaguely suggest that Court should dismiss the remainder of
Nahwooksy's claims because he failed to exhaust the pertinent administrative remedies. (Mem
Supp. Mot. Summ. J. if 22.) Besides Claim 2(b), which is dismissed below, the remainder of
Nahwooksy' s claims pertain to alleged retaliation and denial of due process in conjunction with
his convictions after a disciplinary hearing of two institutional infractions. Defendants' own
evidence reflects that "[d]isciplinary hearing decisions, penalties and/or procedural errors" are
not grieveable. (Operating Procedure § 866.1.IV.M.2.a.) Thus, the general grievance procedure
does not appear to be an available remedy for exhausting these claims. Moore, 517 F.3d at 725
(noting that inmates are only required to exhaust remedies that are available). Given the absence
of an adequate explanation from Defendants as to why Nahwooksy has failed to exhaust his
available administrate remedies pertaining to his institutional convictions, the Court denies their
request to dismiss the remainder of the claims for lack of exhaustion.

C. No Right to Participate in the Grievance Process
In Claim 2(b), Nahwooksy seeks to hold Defendant Locust liable because of her role in
reviewing his grievances and failing to ensure that the grievance procedure functioned properly.

(See, e.g., Compl. if 323.D.) "[T]he Constitution creates no entitlement to grievance procedures
or access to any such procedure voluntarily established by a state." Adams v. Rice, 40 F.3d 72,
75 (4th Cir. 1994) (citations omitted). Thus, Defendant Locust did not deprive Nahwooksy of
due process by allegedly failing to ensure the grievance procedure functioned properly. Id.
Furthermore, a prison official's "after-the-fact denial of a grievance falls far short of establishing

§ 1983 liability." Depaola v. Ray, No. 7:12cv00139, 2013 WL 4451236, at *8 (W.D. Va. July
22, 2013) (citing Brooks v. Beard, 167 F. App'x 923, 925 (3d Cir. 2006)). Nahwooksy fails to
16

In Part III, the Court directs Nahwooksy to show cause why Claim 7(d) against Correctional
Officer John Doe should not be dismissed for failure to exhaust administrative remedies.
18

advance any evidence that demonstrates Defendant Locust violated his rights. Accordingly,
Claim 2(b) will be DISMISSED.

D. Due Process Claims
1. Summary of Pertinent Facts
On December 30, 2013, Nahwooksy received two institutional charges: Simple Assault
Upon a Non-Offender 17 and Possession of a Communication Device. (Dillman Aff. if 7.) With
respect to the charge of Simple Assault Upon a Non-Offender, the Disciplinary Offense Report
prepared by Defendant Maynard-Simon stated:
At approximately 5: 10 a.m., I entered cell block one to conduct a
shakedown of cell A 13. As Intel Officers Serrano and Leonard proceeded to take
Offender Romero-Cruz (slept in Al3) to the bathroom to be strip searched,
Offender Nahwooksy was placed on the bench in front of his cell (A13). At 5:20
a.m. while there was commotion in the bathroom, Offender N ahwooksy got up
from the bench and bolted to his cell pushing me out of the way. I was standing
guard at the cell until the strip searching process was over.
(ECF No. 16-1, at 16.) 18
With respect to the charge of Possession of a Communication Device, the Disciplinary
Offense Report stated:
On 12/30/13 at approximately 5:45 a.m., Intel. Officer Maynard-Simon
and I walked into Cell A-13 Cell Block One to conduct a search of the cell. As I
began to search the bed assigned to Offender Nahwooksy, a black Virgin Mobile
cell phone was found charging on his bed. The cell phone was bagged in an
evidence bag and brought to the investigation office. The phone was searched for
phone numbers and text messages. A text message was found sent December 29,
2013. The text message read, "Hey Cynthia this is Rico the hommie Payaso just
gave me ur number so this is my number ok." Offender Nahwooksy['s] nickname
is Rico.
17

As explained below, the charge of Simple Assault Upon a Non-Offender did not
deprive Nahwooksy of any protected liberty interest. Therefore, the Court provides only limited
discussion of the procedures leading to the conviction of that offense.
18

For ease of reference, the Court employs the CM/ECF pagination for the documents
attached to Dillman's Affidavit.
19

(Id at 14.) Nahwooksy requested Defendant Maynard-Simon as a witness to verify where the
phone was found. (Id. at 30.) The requested was granted (id), and Maynard-Simon verified that
the phone was found in Nahwooksy's bed. (Id at 31.) Additionally, Nahwooksy also requested
inmate K. Wheless as a witness to verify that the phone was found on the top bunk. (Id at 32.)
The requested was granted to the extent that VDOC staff obtained a statement from Wheless,
(id), and inmate Wheless verified that the phone was recovered from the top bunk. (Id at 33.)
N ahwooksy also requested a statement from his cellmate Romero-Cruz to verify that RomeroCruz' s nickname was Rico. (Id at 34.) The request was granted to the extent that a statement
was obtained from Romero-Cruz (id), and Romero-Cruz verified that his nickname also was
Rico. (Id at 35.) Additionally, VDOC staff granted Nahwooksy's request to obtain VDOC
records which reflected which bed in the cell belonged to Nahwooksy. (Id at 29, 36.)
On January 9, 2014, Defendant Leabough conducted separate disciplinary hearings on
Nahwooksy's charges. (Id. at 16-17, 38.) Defendant Leabough found Nahwooksy guilty of both
charges. (Id.) For the charge of Simple Assault Upon a Non-Offender, Nahwooksy was
penalized with ten (10) days of confinement in disciplinary segregation. (Id at 17.) For the
charge of Possession of a Communication Device, Nahwooksy was penalized with thirty days in
disciplinary segregation and the loss of thirty (30) days of statutory good time. (Id. at 38.)
At the hearing on the charge of Possession of a Communication Device, Officer Serrano
testified that he spoke with Nahwooksy, and Nahwooksy denied that the phone was his. (Compl.
~

198.) Officer Serrano and Defendant Maynard-Simon testified the phone was recovered from

the top bunk.

(Id~

202.) Defendant Leabough considered Nahwooksy's documentary evidence

which reflected that Romero-Cruz was assigned to the top bunk. (Id.~ 202 (citing Ex. 122).)
Defendant Leabough also considered Romero-Cruz's statement that his nickname was Rico and

20

the text message found on the phone.

(Id.~,

204-05 (citation omitted).) Leabough provided the

following brief summary as to why he found Nahwooksy guilty:
Guilty based on [Reporting Officer's] summary and oral statement that he
found a cell phone charging on the top bunk. The phone had a text message that
read "Hey Cynthia this is Rico the hommie Payaso just gave me ur number so this
is my number ok". Nahwooksy's nickname is Rico and this is documented on
Caris. This is additional reliable information linking the offender to the cell
phone. The accused gave no statement nor answered questions.
(ECF No. 16-1, at 38.)
Nahwooksy appealed his conviction for Possession of Communication Device. (Dillman
Af£, 9.) In rejecting that appeal, Defendant Dillman noted, inter alia, that:
You state in your appeal that the cell phone was found on the top bunk;
however, at the time of the incident you were assigned to the bottom bunk. You
also state that the Reporting Officer did not ask your cell partner if the phone
belonged to him. The Reporting Officer did state that he assumed the cell phone
belonged to you as a cell phone belonging to your cell partner had already been
found [during strip search of his person]. Although the Reporting Officer's
assumption that you were assigned to the top bunk in the cell was incorrect, the
cell phone was directly linked to you via a text message that was sent on
12/29/13. The text message states that it was sent by "Rico." The Reporting
Officer stated at the hearing that your nickname is "Rico", which is documented
as an alias in [our internal records]. The Reporting Officer also stated at the
hearing that the message stated that "hommie Payaso" just gave you the number
the message was sent to and the Reporting Officer testified that your cell partner
goes by the name of "Payaso".
(ECF 16-2, at 34-35.)
On January 9, 2014, the Institutional Classification Authority ("ICA") conducted a
review ofNahwooksy's status. (Compl. ,, 220-21.) As a result of the two convictions, the ICA
recommended a reduction in rate at which Nahwooksy earned good time credits and
recommended that Nahwooksy's security level be increased and that he be transferred to a higher
security level institution. (Compl. if 221.) On February 25, 2014, Nahwooksy was transferred to
Keen Mountain Correctional Center. (Id

~

232.)

21

2. Assessment of Whether the Deprivation Impacted a Protected Liberty
Interest
Demonstrating the existence of a state-created liberty interest requires a "two-part
analysis." Prieto v. Clarke, 780 F.3d 245, 249 (4th Cir. 2015) (internal quotation marks omitted)
(citation omitted). First, a plaintiff must make a threshold showing that the deprivation imposed
amounts to an "atypical and significant hardship" or that it "inevitably affect[s] the duration of
his sentence." Sandin v. Conner, 515 U.S. 472, 484, 487 (1995); see Puranda v. Johnson,
No. 3:08CV687, 2009 WL 3175629, at *4 (E.D. Va. Sept. 30, 2009) (citing cases). If the nature
of the restraint the plaintiff challenges meets either prong of this threshold, the plaintiff must
next show that Virginia's statutory or regulatory language "'grants its inmates ... a protected
liberty interest in remaining free from that restraint."' Puranda, 2009 WL 3175629, at *4
(omission in original) (quoting Abed v. Armstrong, 209 F.3d 63, 66 (2d Cir. 2000)).
With respect to the Sandin threshold analysis, the Court must first "determine what the
normative 'baseline' is: what constitutes the 'ordinary incidents of prison life' for this particular

inmate?" Incumaa v. Stirling, 791 F.3d 517, 527 (4th Cir. 2015) (citing Prieto, 780 F.3d at 253).
Second, "with the baseline established, [the Court] determine[s] whether the prison conditions
impose atypical and substantial hardship in relation to that norm." Id (citing Prieto, 780 F.3d at
254). The Fourth Circuit has observed that, "[a]lthough the general prison population is not the
relevant atypicality baseline in all cases, it is the touchstone in cases where the inmate asserting a
liberty interest was [initially] sentenced to confinement in the general population and later
transferred to security detention." Id. at 528-29 (citing Prieto, 780 F.3d at 252)

Sandin itself forecloses the notion that all forms of punitive or administrative segregation
presumptively constitute an "atypical and significant hardship" in relation to the ordinary
incidents of prison life. Sandin, 515 U.S. at 484. In Sandin, the Supreme Court rejected DeMont
22

R.D. Conner's claim that he enjoyed a liberty interest in avoiding confinement in punitive
segregation for thirty (30) days. Id at 487. The dissent observed:
In the absence of the punishment, Conner, like other inmates in [the] general
prison population would have left his cell and worked, taken classes, or mingled
with others for eight hours each day. As a result of disciplinary segregation,
however, Conner, for 30 days, had to spend his entire time alone in his cell (with
the exception of 50 minutes each day on average for brief exercise and shower
periods, during which he nonetheless remained isolated from other inmates and
was constrained by leg irons and waist chains).

Id. at 494 (Breyer, J ., dissenting) (internal and external citations omitted). The majority
concluded that the foregoing conditions "did not present the type of atypical, significant
deprivation in which a State might conceivably create a liberty interest." Sandin, 515 U.S. at 486
(emphasis added).
With respect to his conviction for Possession of a Communication Device, among other
things, Defendants revoked thirty days ofNahwooksy's vested statutory good time. It is well
established that inmates have a protected liberty interested in vested good time credits. See Wolff

v. McDonnell, 418 U.S. 539, 560-61 (1974); Puranda v. Hill, No. 3:10CV733-HEH, 2012 WL
2311844, at *3 (E.D. Va. June 18, 2012) (citingSciolino v. City ofNewport News, Va., 480 F.3d
642, 653 n.9 (4th Cir. 2007)). Thus, in the next section, the Court assesses whether Nahwooksy
received the process the Constitution requires in conjunction with that conviction. Nevertheless,
as explained immediately below, Nahwooksy fails to demonstrate that his conviction for Simple
Assault Upon a Non-Offender deprived him of any protected liberty interest.
As an immediate result of his conviction for Simple Assault Upon a Non-Offender,
Nahwooksy was penalized with placement in segregation for ten days. Here, Nahwooksy has not
supplied evidence with respect to what life was like in the general prison population. Nor has
N ahwooksy provided evidence regarding the conditions in segregation which indicate such

23

conditions significantly exceeded the conditions described in Sandin. Moreover, courts in the
Fourth Circuit have repeatedly rejected the notion that inmates enjoy a protected liberty interest
in avoiding confinement in segregation. See United States v. Daniels, 222 F. App'x 341, 342 n. *
(4th Cir. 2007) ("Extended stays on administrative segregation ... do not ordinarily implicate a
protected liberty interest." (citing Beverati, 120 F.3d at 502)). But see Jncumaa, 791 F.3d at 53032 (concluding solitary confinement for twenty years constituted an atypical and significant
hardship). Thus, Nahwooksy fails to demonstrate that he enjoyed a protected liberty interest in
avoiding segregation.
As an indirect result of conviction for Simple Assault Upon a Non-Offender, VDOC
officials also transferred Nahwooksy to a different prison, increased his security level, and
decreased the rate at which he earned good time credits. Well-established precedent reflects that
Nahwooksy does not enjoy a protected liberty interest in avoiding a transfer, see Cochran v.

Morris, 73 F.3d 1310, 1318 (4th Cir. 1996) (en bane}, maintaining a particular security level, see
Baines v. Barlow, No. 7:10CV00535, 2010 WL 5477690, at *2-3 (W.D. Va. 2010) (concluding
Virginia's law did not give rise to a liberty interest in maintaining or obtaining a particular
security level); Saunders v. Webb, No. 7:08CV00293, 2008 WL 1904665, at *2-3 (W.D. Va.
Apr. 29, 2008) (concluding change in security level does not pose an atypical and significant
hardship under Sandin), or earning future good time credits at a particular rate, Mills v. Holmes,
95 F. Supp. 3d. 924, 935 (E.D. Va. 2015) (observing that Virginia "[i]nmates have no protected
liberty interest in remaining in or being assigned to a particular good conduct allowance
level ...." (quoting West v. Angelone, No. 98-6858, 1998 WL 746138, at *1 (4th Cir. Oct. 26,
1998))); Puranda, 2009 WL 3175629, at *5. As Nahwooksy fails to demonstrate that his

24

conviction for Simple Assault Upon a Non-Offender resulted in the deprivation of any protected
liberty interest, any due process claims pertaining to those convictions will be DISMISSED.

3. Process Required and Provided in Conjunction with the Conviction for
Possession of a Communication Device
The Constitution guarantees only the following minimal process prior to revoking vested
good time credits:
(1) an impartial tribunal; (2) written notice of the charges prior to the hearing; (3)
an opportunity to call witnesses and present documentary evidence; (4) aid from a
fellow inmate or staff representative if the issues are complex; and, ( 5) a written
statement by the fact finder describing the evidence relied upon and the reasons
for taking disciplinary action.

Coor v. Stansberry, No. 3:08CV61, 2008 WL 8289490, at *2 (citing Wolff, 418 U.S. 563-71).
Furthermore, "the requirements of due process are satisfied if some evidence supports the
decision by the prison disciplinary board to revoke good time credits." Superintendent, Mass.

Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985) (emphasis added). The Supreme Court
emphasized:
Ascertaining whether this standard is satisfied does not require examination of the
entire record, independent assessment of the credibility of witnesses, or weighing
of the evidence. Instead, the relevant question is whether there is any evidence in
the record that could support the conclusion reached by the disciplinary board.

Id. at 455-56. 19
The vast majority ofNahwooksy's complaints fail to touch upon the procedural
protections described above, but rather charge VDOC officials with failing to sign a document or
properly process his appeal, or some error that is not relevant to the due process analysis. The
19

Contrary to Nahwooksy's suggestion, the alleged failure of Defendants to follow their
own internal procedural regulations for conducting disciplinary hearings does not give rise to a
due process violation. Brown v. Angelone, 938 F. Supp. 340, 344 (W.D. Va. 1996) (observing
that "a state's failure to abide by its own law as to procedural protections is not a federal due
process issue" (citing Riccio v. Cty. of Fairfax, Va., 907 F.2d 1459, 1469 (4th Cir. 1990))).
25

undisputed evidence reflects that Nahwooksy received written notice of the charges prior to the
hearing, an opportunity to call witnesses and present documentary evidence, and a written
statement by the fact finder describing the evidence relied upon and the reasons for finding him
guilty of Possession of a Communication Device. 20 As pertinent here, Nahwooksy asserts: (1)
insufficient evidence existed to support his conviction; and (2) Defendant Leabough was not
impartial. As explained below, these charges lack merit.
First, ample evidence supported Nahwooksy's conviction for Possession of a
Communication Device. The cell phone was found in Nahwooksy's cell. The VDOC officials
had just recovered another cell phone from Nahwooksy's cell mate, thus supporting the inference
that the second cell phone in the cell belonged to Nahwooksy. The cell phone contained a text
message which, as noted by Defendant Dillman in rejecting Nahwooksy's appeal, fairly
conclusively demonstrated that Nahwooksy had used the cell phone found in the cell.
Next, Nahwooksy asserts that Defendant Leabough was not impartial. It is well settled
that "the degree of impartiality required of prison hearing officials does not rise to the level of
that required of judges generally." Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989). "The
constitutional standard for proving impermissible bias is high." Portee v. Vannatta, 105 F.
App'x 844, 845 (7th Cir. 2004) (citing Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir. 2003)). Due
process only forbids "officials who are directly or substantially involved in the factual events
20

Nahwooksy complains that, when conducting the investigation of the charge for
Possession of Communication Device, Correctional Officer Serrano failed to ask Romano-Cruz
to whom the cellphone found in the cell belonged. (Compl. iI 327.H.) Nahwooksy, however,
does not charge that VDOC officials denied him the ability to call Romano-Cruz or some other
individual as a witness with respect to the charge of Possession of a Communication Device.
Moreover, Nahwooksy did not request Romano-Cruz to testify to this fact. Rather, Nahwooksy
only requested to Romano-Cruz verify that his nickname was Rico and VDOC officials
permitted Romano-Cruz to offer a written statement to that effect. (ECF No. 16-1, at 35);
Brown v. Braxton, 373 F.3d 501, 506-09 (4th Cir. 2004) (discussing use of written statements
from inmates rather than live testimony at disciplinary hearings).
26

underlying the disciplinary charges, or the investigation thereof, from serving on the board
hearing the charge." Piggie, 342 F.3d at 667 (citation omitted)); accord Meyers v. Alldredge,
492 F.2d 296, 306 (3d Cir. 1974); Neal v. Warden ofFCC-Petersburg, No. 2:09CV406, 2010
WL 2024706, at *6 (E.D. Va. Apr. 22, 2010) (citation omitted). Furthermore, the hearings
officer "is entitled to a presumption of 'honesty and integrity"' absent clear and convincing
evidence to the contrary. Neal, 2010 WL 2024706, at *6 (quoting Withrow v. Larkin, 412 U.S.
35, 47 (1975)).
Nahwooksy asserts that Defendant Leabough was biased because: "Leabough just found
[Nahwooksy] guilty in prior case" of Simple Assault Upon a Non-Offender that involved
Defendant Maynard-Simon (Comp!.~ 201), and failed to accept Nahwooksy's arguments that
Defendants had violated VDOC procedures. (Pl.'s Mem. Opp'n 14-15.)2 1 Even in the context
of judges, adverse procedural ruling are insufficient to establish bias. Liteky v. United States,
510 U.S. 540, 555 (1994) (citation omitted) (observing that adverse "rulings alone almost never
constitute a valid basis for a bias or partiality motion"). Furthermore, the fact that Defendant
Leabough presided over Nahwooksy's prior offense and found him guilty is insufficient to
establish bias. See Piggie, 342 F.3d at 667. Nor do Nahwooksy's vague allegations that
Defendant Leabough deviated from VDOC regulations overcome the presumption of honesty
and integrity accorded to Defendant Leabough. Nahwooksy fails to advance any evidence that
shows Defendant Leabough was directly or substantially involved in the factual events
underlying his disciplinary charges. See Piggie, 342 F .3d at 667. Thus,
21

Nahwooksy complains that with respect to the charge of Simple Assault Upon a NonOffender, "Leabough found offender Nahwooksy guilty solely base[d] on reporting officer
Maynard Simon's say so, disregarding offender's statement as well as witness·K. Wheles's
statement. [Leabough] has violated numerous policies and procedures .... " (Pl.'s Mem. Opp'n
15.)
27

Nahwooksy fails to direct the Court to any evidence from which a reasonable juror could find
Defendant Leabough was biased. Furthermore, he fails to demonstrate that he was denied due
process.
Nahwooksy's due process claims must be dismissed. As explained above, Nahwooksy
fails to demonstrate his conviction for Simple Assault Upon a Non-Offender resulted in a
deprivation of a protected liberty interest. Furthermore, Nahwooksy received all of the process
required in conjunction with his conviction for Possession of Communication Device.
Accordingly, Claims l(b), 3(b), 4, and S(b) will be DISMISSED. 22

III. Outstanding Matters
The Court has dismissed all ofNahwooksy's claims against the served Defendants. The
John Doe Correctional Officer, named in conjunction with Claim 7(d), has yet to be identified
and served with process. Nevertheless, it is apparent from the record that, should Nahwooksy
ever identify and serve the John Doe Correctional Officer, Claim 7(d) would be subject to
dismissal for lack of exhaustion. See 42 U.S.C. 1997e(a). "After giving notice and a reasonable
time to respond, the court may ... consider summary judgment on its own after identifying for
the parties material facts that may not be genuinely in dispute." Fed. R. Civ. P. 56(t)(3). Given
the current state of the record, within twenty (20) days of the date of entry hereof, Nahwooksy is
directed to show good cause why the Court should not grant summary judgment and dismiss
Claim 7(d) because he failed to exhaust his administrative remedies for Claim 7(d). See Smith v.
22

In part of Claims 3(b) and 5(b), Nahwooksy demands relief because Defendant
Maynard-Simon filed the false of charge of Assault upon a Non-Offender in retaliation for his
making her look foolish by rushing back into his cell and flushing contraband down the toilet. In
order to survive summary judgment, Nahwooksy must demonstrate "that the retaliatory act was
taken in response to the exercise of a constitutionally protected right or that the act itself violated
such a right." Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994). Nahwooksy enjoys no
constitutional right to embarrass a correctional officer and destroy contraband. Additionally, as
reflected above, the charge of Simple Assault Upon a Non-Offender did not deprive Nahwooksy
of a constitutional right. Thus, the claims of retaliation lack merit and will be DISMISSED.

28

Godinez, No. 12-1498, 2014 WL 471790, at *2-3 (C.D. Ill. Feb. 5, 2014) (granting summary
judgment sua sponte for lack of exhaustion); see also Anderson v. XYZ Corr. Health Servs., Inc.,
407 F.3d 674, 682 (4th Cir. 2005) (observing that "a district court may raise the issue of
exhaustion of remedies on its own motion"). 23
Nahwooksy has filed a Motion for Production of Documents wherein he seeks the video
footage of the cameras in his housing unit on December 30, 2013, copies of his medical records,
and other internal prison records. (Mot. Production of Documents 1-2, ECF No. 20.)
Defendants oppose the Motion for Production of Documents and filed a Motion for a Protective
Order. (ECF No. 22.) Defendants correctly note that the sought after video footage and
documents would not aid Nahwooksy on summary judgment given their defense of exhaustion to
his Eighth Amendment claims. Furthermore, Nahwooksy fails to articulate how the requested
documents or video footage could allow his due process claims to survive summary judgment.
The requested material would not demonstrate that his conviction of Simple Assault Upon a
Non-Offender resulted in a deprivation of due process or that he was denied the requisite process
in conjunction with his conviction for Possession of a Communication Device.
Lastly, Nahwooksy suggests the requested material may reveal the name of the John Doe
Correctional Officer so he could be served. However, as explained above, it will be unnecessary
to identify and serve the John Doe Correctional Officer unless Nahwooksy can demonstrate that
23

Nahwooksy is advised that he is entitled to file a response that includes counteraffidavits, statements, exhibits, or other legal or factual material that supports his position in the
case. An affidavit is a sworn statement of facts made on personal knowledge, and affidavits may
be submitted by Nahwooksy or any other witnesses. There are two alternative ways to submit an
affidavit to the Court, one of which must be followed. One way is for the person making the
affidavit to sign the affidavit and swear to the truth of its contents before a notary public. The
other way, which does not require a notary public, is for the person making the affidavit to sign
the affidavit and certify that he or she signs under penalty of perjury and understands that he or
she may be prosecuted if the facts he or she sets forth are untrue. N ahwooksy may also file a
legal brief.
29

he exhausted his administrative remedies for Claim 7(d). Given the foregoing circumstances,
Nahwooksy's Motion for Production of Documents (ECF No. 20) and Defendants' Motion for a
Protective Order (ECF No. 22) will be DENIED WITHOUT PREJUDICE to renew if Claim 7(d)
survives summary judgment.

IV. Conclusion
The Motion for Summary Judgment (ECF No. 15) will be GRANTED. Except for Claim
7(d), all ofNahwooksy's claims will be DISMISSED. Within twenty (20) days of the date of
entry hereof, Nahwooksy is DIRECTED to show good cause why Claim 7(d) should not be
dismissed for failure to exhaust his administrative remedies. Nahwooksy's Motion for
Production of Documents (ECF No. 20) will be DENIED WITHOUT PREJUDICE.
Defendants' Motion for a Protective Order (ECF No. 22) will be DENIED WITHOUT
PREJUDICE.

An appropriate Order shall accompany this Memorandum Opinion.

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30