James v. Bailey et al

Filing 23

MEMORANDUM OPINION. Signed by District Judge John A. Gibney, Jr. on 1/17/2017. (sbea, )

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

HENRY JAMES,

Plaintiff,
V.

Civil Action No. 3:15CV519

M. BAILEY, e/a/.,
Defendants.
MEMORANDUM OPINION

Henry James, a Virginia inmate proceeding pro se and in forma paupehs, filed this 42

U.S.C. § 1983 action.' The matter is before the Court on the Motion to Dismiss filed by

Defendants M. Bailey, S. Cain, J. Lewis, and Harold Clarke.^ (ECF No. 12.) James has
submitted a Memorandum in Support of Plaintiff s Opposition Reply to Defendants' Motion to

Dismiss ("Response," ECF No. 19). For the reasons stated below, the Court will GRANT the
Motion to Dismiss.

1.

STANDARD FOR MOTION TO DISMISS

"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

' The 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.

^ M. Bailey is the Assistant Warden at Sussex II State Prison ("SUSP"). S. Cain is a
Lieutenant at SUSP. J. Lewis is a Correctional Officer at SUSP. Harold Clarke is the Director of

the Virginia Department of Corrections ("VDOC").

applicability of defenses." 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 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, 1 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 Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (second alteration in original) (quoting Conley v. Gibson, 355 U.S. 41,

47 (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
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 Atl. 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.L
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); lodice v. United States, 289 F.3d 270, 281 (4th
Cir. 2002)). Lastly, while the Court liberally construespro se 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 Brock v. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J., concurring); Beaudett v. City

ofHampton, 775 F.2d 1274,1278 (4th Cir. 1985).
II.

SUMMARY OF PLAINTIFF'S ALLEGATIONS

In his Complaint, James raises claims concerning his placement in ambulatory restraints
and the decision to replace his meals with diet loaf for a seven-day period. James alleges that on

October 15, 2014, at approximately 12:27 p.m., "an alleged incident occurred . . . wherein
Plaintiff was accused of dousing a security staff with liquid substances." (Compl. ^ 2, ECF

No. 1.)^ Afterwards, "[e]ven though Plaintiff was secured in his cell posing no form of threat to
himself, security staff or others . . ., Defendant Cain cont[]acted Defendant Bailey and obtained
his authorization to place Plaintiff in bodily/ambulatory restraints." {Id.)

At 3:35 p.m.. Defendant Lewis entered James's cell and placed James in the ambulatory
restraints "as Defendant Cain, Lieutenant Walker and Sergeant Carver stood by watching." {Id.

H 3.) Defendant Lewis "secured Plaintiffs wrists in handcuffs and a lock box then placed
shackles on his ankles." {Id.) Defendant Lewis then connected the shackles to the lock box with

a chain and lock. {Id.) James's property was removed from his cell, and he "was stripped of his
uniform/jumpsuit." {Id.

4.) James remained in the ambulatory restraints for ten hours and 45

minutes. {Id.)

^The Court corrects the capitalization in quotations from James's submissions.
3

The next day, October 16, 2014, Defendant Bailey ordered that James be "placed on a
loaf diet consisting of vegetables and beans baked into a dough." (Jd. 15.) James received the
diet loaf "twice a day for the 7 days following his release from bodily restraints." {Id.

6.)

The Court construes James's Complaint to raise the following claims for relief:

Claim One:

Defendants Bailey, Cain, and Lewis violated James's (a) rights under the

Eighth Amendment"^ and (b) due process rights under the Fourteenth
Amendment^ by placing him in ambulatory restraints for ten hours and 45
minutes. {Id.

Claim Two:

1^.)

Defendant Bailey violated James's (a) rights under the Eighth Amendment
and (b) due process rights under the Fourteenth Amendment by ordering
that James receive diet loaf for his meals for seven days following James's
removal from the ambulatory restraints. {Id. ^ 5-6.)

Claim Three: Defendant Clarke violated James's rights because "subordinate staff to
Defendant Clarke" unconstitutionally placed James in ambulatory
restraints for ten hours and 45 minutes and restricted him to "diet loaf for

seven days. {Id. f 7.)
III.

EIGHTH AMENDMENT

To state an Eighth Amendment claim, an inmate must allege facts that indicate (1) that
objectively the deprivation suffered or harm inflicted "was 'sufficiently serious,' and (2) that
subjectively the prison officials acted with a 'sufficiently culpable state of mind.'" Johnson v.
QuinoneSy 145 F.3d 164, 167 (4th Cir. 1998) (quoting Wilson v. Setter, 501 U.S. 294, 298
(1991)). "These requirements spring from the text of the amendment itself; absent intentionality,

a condition imposed on an inmate cannot properly be called 'punishment,' and absent severity,
such punishment cannot be called 'cruel and unusual.'" Iko v. Shreve, 535 F.3d 225, 238 (4th
Cir. 2008) (citing Wilson v. Seiter, 501 U.S. 294, 298-300 (1991)). "What must be [alleged] with

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

^"No State shall . . . deprive any person of life, liberty, or property, without due process
of law

" U.S. Const, amend. XIV, § 1.
4

regard to each component 'varies according to the nature of the alleged constitutional violation.'"
Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996) (quoting Hudson v. McMillian, 503 U.S.
1,5 (1992)).

When an inmate challenges his conditions of confinement, he must allege "(1) a serious

deprivation of a basic human need; and (2) deliberate indifference to prison conditions on the

part of prison officials." Williams v. Griffin, 952 F.2d 820, 824 (4th Cir. 1991) (internal citation
omitted) (citing Wilson, 501 U.S. at 301-03). Deliberate indifference requires the plaintiff to
allege facts suggesting that a particular defendant actually knew of and disregarded a substantial
risk of serious harm to the plaintiffs person. See Farmer v. Brennan, 511 U.S. 825, 837 (1994).
"Deliberate indifference is a very high standard—a showing of mere negligence will not meet
it." Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999) (citing Estelle v. Gamble, 429 U.S. 97,
105-06(1976)).

[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 drawn that a substantial risk

of serious harm exists, and he must also draw the inference.

Farmer, 511 U.S. at 837. Farmer teaches "that general knowledge of facts creating a substantial

risk of harm is not enough. The prison official must also draw the inference between those
general facts and the specific risk of harm confronting the inmate." Quinones, 145 F.3d at 168
(citing Farmer, 511 U.S. at 837); see Rich v. Bruce, 129 F.3d 336, 338 (4th Cir. 1997) (stating
same). Thus, to survive a motion to dismiss, the deliberate indifference standard requires a

plaintiff to assert facts sufficient to form an inference that "the official in question subjectively
recognized a substantial risk of harm" and "that the official in question subjectively recognized

that his actions were 'inappropriate in light of that risk.'" Parhsh ex rel Lee v. Cleveland, 372
F.3d 294, 303 (4th Cir. 2004) (quoting Rich, 129 F.3d at 340 n.2).

When an inmate claims that prison officials used excessive force against his person, the

objective component is less demanding and the subjective component is more demanding. See
Williams, 11 F.3d at 761. With respect to the objective component, the inmate must allege facts

suggesting that the "nature" or amount of force employed "was nontrivial." Wilkins v. Gaddy,
559 U.S. 34, 39 (2010); see id. at 38 (observing that "a 'push or shove' that causes no discernible

injury almost certainly fails to state a valid excessive force claim" (quoting Hudson, 503 U.S. at
9)). Nevertheless, "[a]n inmate who is gratuitously beaten by guards does not lose his ability to

pursue an excessive force claim merely because he has the good fortune to escape without
serious injury." Id.

With respect to the subjective component, the inmate must allege "'wantonness in the
infliction of pain.'" Iko, 535 F.3d at 239 (quoting Whitley v. Alters, 475 U.S. 312, 322 (1986)).

Specifically, "the 'core judicial inquiry' regarding the subjective component of an excessive
force claim is 'whether force was applied in a good-faith effort to maintain or restore discipline,

or maliciously and sadistically to cause harm.'" Id. (quoting Hudson, 503 U.S. at 7). "When

prison officials maliciously and sadistically use force to cause harm, contemporary standards of
decency always are violated ... whether or not significant injury is evident." Hudson, 503 U.S.
at 9 (internal citation omitted).
A.

Ambulatory Restraints

In Claim One (a), James alleges that Defendants Bailey, Cain, and Lewis violated

James's rights under the Eighth Amendment by placing him in ambulatory restraints for ten
hours and 45 minutes.

(Compl.

1-4.) It is not entirely clear whether the alleged use of

ambulatory restraints should be evaluated as a claim for excessive force or as a challenge to
James's conditions of confinement. See Majette v. Geo Group, Inc., 3:07CV591, 2010 WL

3743364, at *5 (E.D. Va. Sept. 22, 2010) (citations omitted). It is unnecessary, however, to
decide that issue here, because James has failed to sufficiently allege an Eighth Amendment
claim under either standard. See Holley v. Johnson, No. 7:08CV00629, 2010 WL 2640328, at

*12-15 (W.D. Va. June 30, 2010) (evaluating inmate's claim regarding the use of restraints
under both the excessive force and conditions of confinement standards). Specifically, evaluated
as a claim of excessive force, James fails to allege facts that sufficiently suggest that the amount

of force employed was nontrivial and that Defendants Bailey, Cain, and Lewis acted maliciously
to cause harm. Evaluated as a conditions of confinement claim, James fails to allege sufficient
facts to satisfy the objective component.
1.

Excessive Force

There exists "ample authority . . . holding that the use of ambulatory restraints for
extended periods of time does not generally constitute an Eighth Amendment violation because
such use does not satisfy the objective component of the excessive force inquiry." Goodman v.

McCoy, No. 7:12CV00186, 2013 WL 693103, at *8 (W.D. Va. Feb. 26, 2013) (citation omitted);
see Holley, 2010 WL 2640328, at *14 n.22 (citations omitted) (noting that the court "has

repeatedly held that the extended use of ambulatory restraints which does not result in significant
physical injury is a de minimus use of force that does not satisfy the objective component of an
Eighth Amendment excessive force claim"); Madison v. Kilbourne, No. CIVA 7:04CV000639,
2006 WL 2037572 (W.D. Va. July 18, 2006) (concluding that being held in ambulatory restraints

for fourteen hours did not violate the Eighth Amendment), affd in relevant part by 228 F. App'x
293 (4th Cir. Mar. 27, 2007). "[A]mbulatory restraints, as a control mechanism, properly applied

and maintained even for a lengthy period, are 'not a use of force that offends contemporary

standards of decency so as to satisfy the objective component of an excessive force claim.'"
Goodman, 2013 WL 693103, at *8 (quoting Holley, 2010 WL 2640328, at *14).

Here, James suggests that the use of ambulatory restraints for ten hours and 45 minutes
constituted excessive force because he "was secured in his cell posing no form of threat to

himself, security staff or others." (Compl. H2.) James admits that Defendants Bailey, Cain, and
Lewis decided to use the ambulatory restraints after an incident where "Plaintiff was accused of

dousing a security staff with liquid substances." {Id.) In his Response, James indicates that
while in the ambulatory restraints, he "experienced physical discomfort, exacerbated pain,
muscle spasms, anguish, humiliation, resulting soreness and depression." (Resp. 3, ECF No. 19.)
He also notes that he "had to remain in an awkward position for the prolonged period." {Id. at

4.) James, however, fails to allege that the ambulatory restraints caused him any "physical injury
other than temporary discomfort and embarrassment." Holley, 2010 WL 26400328, at *14.
James also fails to allege sufficient facts to satisfy the subjective component of an
excessive force claim. In determining whether the measure used by prison officials against an

inmate was applied "in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm," Hudson, 503 U.S. at 7, the Supreme Court has directed courts to
consider the following factors: (1) the necessity for the application of force; (2) the relationship
between the need for force and the level of force applied; (3) the threat "reasonably perceived by

the responsible officials;" (4) "any efforts made to temper the severity of a forceful response;"
and, (5) the extent of the injury.

Williams, 11 F.3d at 762 (quoting Hudson, 503 U.S. at 7

(citations omitted)). As noted above, James admits that Defendants Bailey, Cain, and Lewis
decided to use the ambulatory restraints after an incident where "Plaintiff was accused of

8

dousing a security staff with liquid substances." (Compl.

2.) Moreover, James fails to allege

that the use of the ambulatory restraints caused physical injury. Nothing in James's Complaint

or Response suggests that Defendants Bailey, Cain, and Lewis used the ambulatory restraints on
James "maliciously and sadistically to cause harm." Hudson, 503 U.S. at 7. Accordingly, to the
extent that Claim One (a) should be evaluated as a claim of excessive force, James fails to allege

sufficient facts to suggest that the amount of force employed was nontrivial and that Defendants

Bailey, Cain, and Lewis acted with a sufficiently culpable state of mind. See Wilkins, 559 U.S.
at 39; Iko, 535 F.3d at 239 (citation omitted).
2.

Conditions of Confinement

Under the objective prong for an Eighth Amendment claim challenging conditions of
confinement, the inmate must allege that the deprivation complained of was extreme and
amounted to more than the "routine discomfort" that is " part of the penalty that criminal

offenders pay for their offenses against society." Strickler v. Waters, 989 F.2d 1375, 1380 n.3
(4th Cir. 1993) (quoting Hudson, 503 U.S. at 9). The resulting harm to the inmate is particularly

pertinent in assessing whether the inmate has alleged whether a condition was sufficiently
extreme to constitute an unconstitutional infliction of punishment. M at 1381. "If a prisoner has
not suffered serious or significant physical or mental injury as a result of the challenged
condition, he simply has not been subjected to cruel and unusual punishment within the meaning
of the [Eighth] Amendment." /J. at 1381.

Here, James has alleged that he was left in the ambulatory restraints for ten hours and 45
minutes. (Compl. ^ 4.) All of his personal property was removed from his cell, and he "was

stripped of his uniform/jumpsuit." {Id.) In his Response, James indicates that while in the
ambulatory restraints, he "experienced physical discomfort, exacerbated pain, muscle spasms.

9

anguish, humiliation, resulting soreness and depression." (Resp. 3, ECF No. 19.) He also notes
that he "was not allowed temporary release from the restraints to defecate and had to remain in

an awkward position for the prolonged period." {Id. at 4.)^ Although James characterizes his
pain as "exacerbated," he has failed to allege facts that indicate that his pain, soreness, and
discomfort was sufficiently serious to support the objective component of an Eighth Amendment

claim. See Holley, 2010 WL 2640328, at *13 (concluding that sore muscles from use of
restraints was not objectively a sufficiently serious injury). Because James has failed to

sufficiently allege an Eighth Amendment claim with respect to the use of ambulatory restraints.
Claim One (a) will be DISMISSED.
B.

Diet Loaf

In Claim Two (a), James alleges that Defendant Bailey violated his Eighth Amendment

rights by restricting him to receiving diet loaf for his meals during the seven-day period
following James's removal from the ambulatory restraints. (Compl.

5-6.)

"The Eighth Amendment requires that inmates be provided 'well-balanced meal[s],
containing sufficient nutritional value to preserve health.'" Berry v. Brady, 192 F.3d 504, 507
(5th Cir. 1999) (alteration in original) (some internal quotation marks omitted) (quoting Green v.
Ferrelh 801 F.2d 765, 770 (5th Cir. 1986));

also Wilson v. Johnson, 385 F. App'x 319, 320

(4th Cir. 2010) (citations omitted) (explaining that Eighth Amendment requires nutritionally
adequate food); LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993) (citation omitted)

^ The Court notes that in Hope v. Pelzer, 536 U.S. 730 (2002), the Supreme Court
concluded that an inmate's allegations of being handcuffed to a hitching post for seven hours
with limited access to bathroom facilities satisfied both the objective and subjective components
of an Eighth Amendment conditions of confinement claim. Id. at 737-38. Here, however, James
has failed to allege facts from which the Court could conclude that James "had no independent
access to a toilet" and therefore could not relieve himself in such. Holley, 2010 WL 2640328, at
*13.
10

(concluding that "[t]he Eighth Amendment requires only that prisoners receive food that is
adequate to maintain health; it need not be tasty or aesthetically pleasing").
Contrary to James's belief, "[b]eing fed the VDOC's Diet Loaf is not cruel and unusual
punishment." Douglas v. Johnson, No. 7:ll-CV-00468, 2013 WL 1123849, at *6 (W.D. Va.
Mar. 18, 2013) (citing Johnson v. Shear, No. 7:10-CV-00381, 2011 WL 3880949, at *6 (W.D.

Va. Sept. 1, 2011)); see LeMaire, 12 F.3d at 1455-56 (concluding that use of a Nutraloafdiet for
seven days did not violate inmate's Eighth Amendment rights).

Moreover, James has failed to

allege facts that the diet loaf was insufficient to meet his basic nutritional needs. While the diet
loaf "may not have been to [James's] liking, . . . [James] has not [alleged any facts] which
suggest[] that because [he was restrictedto diet loaf for seven days] he has sustained a serious or
significant injury . . . ." Baker v. Mullins, No. Civ.A. 7:05CV00466, 2005 WL 2076522, at *5
(W.D. Va. Aug. 25, 2005). James also fails to allege facts suggesting that Defendant Bailey
knew of and disregarded any excessive risk to James's health from receiving the diet loaf
Farmer, 511 U.S. at 837. Because James fails to adequately allege an Eighth Amendment claim
with respect to the diet loaf, Claim Two (a) will be DISMISSED.
IV.

FOURTEENTH AMENDMENT

In Claim One (b), James contends that Defendants Bailey, Cain, and Lewis violated his
right to due process under the Fourteenth Amendment by placing James in ambulatory restraints
for ten hours and 45 minutes without the benefit of a hearing. (Compl. KH 1-4.) In Claim Two

(b), James alleges that Defendant Bailey violated his right to due process under the Fourteenth
Amendment by ordering that James receive "diet loaf for his meals for seven days following
James's removal from the ambulatory restraints. {Id.

11

5-6.)

The Due Process Clause applies when government action deprives an individual of a

legitimate liberty or property interest. Bd. ofRegents ofState Colls, v. Roth, 408 U.S. 564, 569
(1972). Thus, the first step in analyzing a procedural due process claim is to identify whether the
alleged conduct affects a protected interest. Beverati v. Smith, 120 F.3d 500, 502 (4th Cir. 1997)
(citing cases). A liberty interest may arise from the Constitution itself, or from state laws and
policies. See Wilkinson v. Austin, 545 U.S. 209, 220-21 (2005).
A.

The Constitution Fails to Confer a Liberty Interest in Avoiding Ambulatory
Restraints and Diet Loaf

"The Due Process Clause standing alone confers no liberty interest in freedom from state

action taken 'within the sentence imposed.'" Sandin v. Conner, 515 U.S. 472, 480 (1995)

(quoting Hewitt v. Helms, 459 U.S. 460, 468 (1983)). "[C]hanges in a prisoner[']s location,
variations of daily routine, changes in conditions of confinement (including administrative

segregation), and the denial of privileges [are] matters which every prisoner can anticipate [and
which] are contemplated by his [or her] original sentence to prison . ..." Gaston v. Taylor, 946
F.2d 340, 343 (4th Cir. 1991). Thus, the Constitution itself does not give rise to a liberty interest
in avoiding either ambulatory restraints or diet loaf.
B.

Analysis of State-Created Liberty Interests

Demonstrating the existence of a state-created liberty interest requires a "two-part

analysis." Prieto v. Clarke, 780 F.3d 245, 249 & n.3 (4th Cir. 2015) (quoting Tellier v. Fields,
280 F.3d 69, 80 (2d Cir. 2000)).

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, 515 U.S. at 484, 487; see Puranda v. Johnson,
No. 3:08CV687, 2009 WL 3175629, at *4 (E.D. Va. Sept. 30, 2009) (citations omitted). If the

nature of the restraint the plaintiff challenges meets either prong of this threshold, the plaintiff
12

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 (alteration in original) (quoting Abed v. Armstrong, 209 F.3d 63, 66 (2d Cir. 2000)).
1.

Ambulatory Restraints

Here, James's Complaint fails to allege facts indicating that the conditions he endured

while in ambulatory restraints were significantly harsher than those he enjoyed at other times.

While James alleges that he was kept in the ambulatory restraints for a lengthy period of time, he
admits that Defendants Bailey, Cain, and Lewis decided to use the restraints after James had

thrown a liquid substance onto an officer. Moreover, James fails to allege any facts suggesting
that he was unable to partake in ordinary activities, such as sitting, eating, and using the toilet,
while in ambulatory restraints. See Holley v. Johnson, No. 7:08CV00629, 2010 WL 2640328, at

*16 (W.D. Va. June 30, 2010) (concluding that "the additional, temporary restriction of
ambulatory restraints, which cause no physical injury and allow extensive freedom of movement,
is [not] so atypical as to 'impose a significant hardship in relation to the ordinary incidents of
life'" (quoting Beverati, 120 F.3d at 504)); Moore v. Miller, No. 7:08CV00614, 2009 WL
113258, at *3 (W.D. Va. Jan. 15, 2009) (concluding that "application of ambulatory restraints

did not trigger any federal due process right to a pre-restraint hearing"), affd by 349 F. App'x
815 (4th Cir. 2009); Madison v. Kilbourne, No. CIVA 7:04CV00639, 2006 WL 2037572, at *7
(W.D. Va. July 18, 2006) (concluding that inmate did not have protected liberty interest in

avoiding ambulatory restraints), affd in relevant part by 228 App'x 293 (4th Cir. 2007).
Because James has failed to allege facts that suggest he enjoyed a protected liberty interest in
avoiding the use of ambulatory restraints. Claim One (b) will be DISMISSED.

13

2.

Diet Loaf

Likewise, James's Complaint fails to allege facts indicating that the conditions he

endured during the seven-day period when he received diet loaf for his meals were significantly
harsherthan those he enjoyed at other times. "Prison is hardly known for its fine dining; in such

a setting [the Court] cannot say that a temporary diet of a meatloaf-like substance is an atypical
and significant hardship in relation to the ordinary incidents of prison life." Gates v. Huibregtse,
69 F. App'x 326, 328 (7th Cir. 2003) (citations omitted) (internal quotation marks omitted); see

Griffis V. Gundy, 47 F. App'x 327, 328 (6th Cir. 2002) (concluding that "being fed food loaf does
not implicate a due process liberty interest"); Tyler v. Lassiter, No. 5:13-CT-3139-FL, 2016
WL 866325, at *6 (E.D.N.C. Mar. 3, 2016); Blount v. Johnson, No. Civ.A. 7:05CV00556, 2006

WL 335606, at *3 (W.D. Va. Feb. 14, 2006). Because James has failed to allege facts that

suggest he enjoyed a protected liberty interest in avoiding being restricted to diet loaf for seven

days, Claim Two (b) will be DISMISSED.^
V.

NO PERSONAL INVOLVEMENT BY DEFENDANT CLARKE

In order to state a viable claim under 42 U.S.C. § 1983, a plaintiff must allege that a

person acting under color of state law deprived him or her of a constitutional right or of a right
conferred by a law of the United States. See Dowe v. Total Action Against Poverty in Roanoke

Valley, 145 F.3d 653, 658 (4th Cir. 1998). Furthermore, "[b]ecause vicarious liability is

^In his Response, James asserts, for the first time, a claim that he has a protected liberty
interest in the diet he receives because, as a follower of Judaism, he receives the Common Fare

diet to satisfy his kosher dietary needs. (Resp. 6, ECF No. 19.) James suggests that diet loaf is
not kosher-approved and that his inability to receive the Common Fare diet for seven days
violated his right to free exercise of religion under the First Amendment. (Jd, at 6-7.) "[I]t is
axiomatic that the complaint may not be amended by the briefs in opposition to a motion to
dismiss."

Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984).

"[0]therwise ... a party could unilaterally amend a complaint at will. .. even without filing an
amendment, and simply by raising a point in a brief" Morgan Distrib. Co. v. Unidynamic Corp.,
868 F.2d 992, 995 (8th Cir. 1989) (internal citation omitted). Therefore, the Court will not
consider James's new claims in this action.
14

inapplicable to ... § 1983 suits, a plaintiff must [allege] that each Government-official
defendant, through the official's own individual actions, has violated the Constitution." Ashcroft

V. Iqbah 556 U.S. 662, 676 (2009); Vimedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (noting
that the doctrine of respondeat superior is inapplicable to § 1983 actions). Accordingly, the

plaintiff must allege facts that affirmatively show "that the official charged acted personally in
the deprivation of the plaintiff[']s rights." Vinnedge, 550 F.2d at 928.
In Claim Three, James alleges that Defendant Clarke violated his rights because his
"subordinate staff unconstitutionally placed James in ambulatory restraints for ten hours and 45
minutes and restricted him to "diet loaf for seven days. (Compl. ^ 7.) James, however, fails to

allege any facts suggesting that Defendant Clarke had any direct involvement or personal

responsibility in the alleged deprivation of his constitutional rights. Instead, James seeks to hold
Defendant Clarke responsible under a theory of respondeat superior, which fails to provide a
basis for relief under § 1983. See Vinnedge, 550 F.2d at 928. Accordingly, Claim Three will be
DISMISSED.
VI.

CONCLUSION

For the foregoing reasons. Defendants' Motion to Dismiss (ECF No. 12) is GRANTED.
James's claims and the action will be DISMISSED for failure to state a claim. The Clerk will be

DIRECTED to note the disposition of the action for purposes of 28 U.S.C. § 1915(g).

An appropriate Order will accompany this Memorandum Opinion.

Date:

1

Richmond, Virginia

/St
John A. Gibney, Jr. / /

United States Distrin Ju^ge

15