Leonard v. Pixley et al

Filing 25

MEMORANDUM OPINION. Read Opinion for complete details. Signed by District Judge Henry E. Hudson on 05/16/2017. Copy mailed to Plaintiff.(ccol, )

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

is

Richmond Division

MAY IT2017

BOBBY JOE LEONARD,

CLERK, U.S. DiSTfliCT COURT

RICHMOND. VA

Plaintiff,

Civil Action No. 3:16CV119-HEH

V.

W.W. PIXLEY, et ai,
Defendants.

)
MEMORANDUM OPINION

(Granting Motion for Summary Judgment)

Bobby Joe Leonard, a Virginia inmate proceeding pro se and informa pauperis,
filed this 42 U.S.C. § 1983 action. Leonard's claims flow from theallegedly
unconstitutional treatment Leonard received after he sexually assaulted his cellmate in
Sussex II State Prison ("Sussex 11"). Specifically, Leonard contends that:

Claim 1

"I was stripped of my liberty and suffered the loss of my income and
property ... when I was removed from my ceil in general population and
was placed in administrative segregation where I have now been held for

over six(6) months without any procedural due process .. .." (Compl. 4,
ECFNo. 1.)'
Claim 2

The conditions in administrative segregation violated the Eighth
Amendment because "I have been denied any form of recreation outside of

the cell for more than (3) months, and because the portions of food being
served has caused me to lose forty-six (46) pounds ... in six months ...."
{Id.)

' The Court corrects the capitalization and punctuation in the quotations from Leonard's
submissions.

Defendants2 have moved for summary judgment on the grounds that Leonard has
failed to exhaust his administrative remedies and his claims lack merit. Leonard has
responded. For the reasons set forth below, Claim 2 will be dismissed for lack of
exhaustion and Claim 1 will be dismissed for lack of merit. Furthermore, Leonard's
complaints that he lost income and property because of his placement in segregation are
subject to summary dismissal under 28 U.S.C. § 1915(e)(2) and will not be considered
further. See Jordan v. Rodriguez, No. 3:1ICV193,2013 WL 4759247, at *3 (E.D. Va.
Sept. 4, 2013) (citing Wadhams v. Procunier, 772 F.2d 75, 78 (4th Cir. 1985));
Henderson v. Capital Constr., 3:08cv207-HEH, 2011 WL 977580, at *5 (E.D. Va. Mar.
15, 2011) (citing Backus v. Ward, No. 98-6331, 1998 WL 372377, at *1 (4th Cir. June 8,
1998); Altizer v. Paderick, 569 F .2d 812, 813 (4th Cir. 1978)).

I. STANDARD FOR SUMMARY JUDGMENT
Summary judgment must be rendered "if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law." Fed. R. Civ. P. 56(a). It is the responsibility of the party seeking summary
judgment to inform the court of the basis for the motion and to identify 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 dispositivc 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
2

Leonard names as Defendants W.W. Pixley, J. Koch, D. Peters, T. Birckhead, R. Hayes, and B.
Perkins. (Mem. Supp. Mot. Summ. J. I, ECF No. 21, ECF No. 23.)
2

properly supported, the nonmoving party must go beyond 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) and 56(e) (1986)).
Defendants asks the Court to dismiss Claim 2 because Leonard failed to exhaust

his administrative remedies as required by 42 U.S.C. § 1997e(a). As exhaustion of

administrative remedies is an affinnative defense, Defendants bear the burden of pleading
and proving lack of exhaustion. Jones v. Bock, 549 U.S. 199, 216 (2007).

In support of their Motion for Summary Judgment, Defendants submit, inter alia,:

(1) an affidavit from A. James, the Institutional Ombudsman at Sussex II (Mem. Supp.
Mot. Summ. J. Ex. 1 ("James Aff."), ECF No. 21-1); (2) a copy of Virginia Department
of Corrections ("VDOC") Operating Procedure § 866.1 {id. End. A. ("Operating
Procedure § 866.1")); (3) copies of grievance materials submitted by Leonard {id. Ends.
B-C); (4) an affidavit from Tracy Ray, the Warden of Sussex II (Mem. Supp. Summ. J.
Ex. 2 ("Ray Aff."), ECF No. 21-2); and (5) an affidavit from Natarcha Gregg, the
Dietician for the VDOC (Mem. Supp. Mot. Summ. J. Ex. 3 ("Gregg Aff."), ECF No. 21-

3). Leonard responded to the Motion for Summary Judgment by filing a largely unsworn

response^ and some grievance material.

^Leonard did swear under penalty of perjury to asingle statement in his Response. Specifically,
Leonard states, "Plaintiff, Bobby Joe Leonard, do hereby swear under penalty of peijury, that I
never appeared at any ICA hearings; 1 was nevergiven an opportunity to speak or make a
statement before an ICA tribunal; and I never received one copy of an ICA committee's
decisions concerning my case." (Resp. 4.)

In light of the foregoing submissions, the following facts are established for the
Motion for Summary Judgment. The Court draws all permissible inferences in favor of
Leonard.

II. UNDISPUTED FACTS

Leonard was confined in Sussex II from March 14, 2012 through December 21,

2016, when he was transferred to Wallens Ridge State Prison. (Ray Aff. ^4.) "[0]n July
29, 2015, Leonard was removed from the general population at Sussex II and was placed

in investigative segregation after his cellmate reported to staff that he was raped by
Leonard." (Id ^ 5.) On August 23, 2015, Leonard's "housing status was changed from
investigative segregation to administrative segregation pending the conclusion of the

investigation. Leonard remained in segregation in Housing Unit 3B until he was
transferred to Wallens Ridge State Prison on December 21, 2016." (Id)

"During his confinement to segregation, Leonard's status was reviewed by the
[Institutional Classification Authority ("ICA")] on July 29, 2015, August 13, 2015,
September 9, 2015 (annual review), October 29, 2015, January 29, 2016, March 29,

2016, April 20, 2016, May 10, 2016, August 2, 2016, August 30, 2016 (annual review)
and December 19, 2016." (Id ^ 6.)

"Unless security or safety considerations dictate otherwise, offenders housed in

segregation are allowed a minimum ofone hour ofout ofcell exercise five separate days
each week in a supervised area

Offenders assigned to . .. segregation .. . receive the

same number and type of meals served to the general population." (Id. 7.)

On July 29, 2015, the Special Investigations Unit (SlU) and the VDOC Prison
Rape Elimination Act (PREA) analysts recommended

to continue with Leonard's segregation housing status until he went to

court. On or about March 15, 2016, the investigation was concluded by
SIU and the case was forwarded to the Sussex County Commonwealth
Attorney's Office. On March 29, 2016, Sussex II State Prison Institutional

Investigator Hayes charged Leonard with Disciplinary Offense code
#106B, sexual assault upon or making forcible sexual advances towards

another offender. During a disciplinary hearing on April 6, 2016, the

Inmate Hearings Officer found Leonard guilty based on the evidence

presented at the hearing to include the SIU report indicating that DNA
evidence and bruising were found to be consistent with rape. Leonard also
was administered a polygraph examination which showed deception when
he was asked whether he raped his cellmate.

{Id. ^ 9.) In October ot2016, Warden Ray and the Regional Administrator discussed
Leonard

and concluded that based on Leonard's history of sexual misconduct, prior
criminal convictions for rape and sodomy, his pending rape charges, and

for the protection [ofj other offenders, Leonard should not be released to
the general population. He remained in segregation at Sussex II until after
his trial in Sussex County Circuit Court on December 14, 2016 where
Leonard was convicted of sodomy against his cellmate.
{Id. t 10.)

The VDOC "Offender Grievance Procedure[] is a mechanism for offenders to

resolve complaints, appeal administrative decisions, and challenge the substance of

procedures." (James Aff ^4.) "[A]ll issues .... are grievable except those pertaining to

policies, procedures, and decisions of the Virginia Parole Board, disciplinary hearings,
State and Federal Court decisions, laws and regulations, and other matters beyond the

control of the [VDOC]. {Id. ^5.) "Leonard has not submitted any grievances regarding
the alleged denial of outside recreation and his allegedly small food portions." {Id. T| 10.)

III. ANALYSIS
A. Lack of Exhaustion
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). This language "naturally requires a
prisoner to exhaust the grievance procedures offered, whether or not the possible
responses cover the specific relief the prisoner demands." Booth v. Churner, 532 U.S.
731, 73 8 (2001 ). Generally, in order to satisfy the exhaustion requirement, an aggrieved
party 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). Exhaustion is mandatory, and courts lack discretion to

waive the exhaustion requirement. Porter v. Nuss le, 534 U.S. 516, 524 (2002).
Leonard has not filed any grievances regarding the allegedly inadequate food and
recreation that is the subject of Claim 2.4 Accordingly, Claim 2 will be dismissed.

B. Failure to Demonstrate a Due Process Violation
The Due Process Clause applies when government action deprives an individual of
a legitimate liberty or property interest. Bd. of Regents ofState Coils. 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
4

Leonard acknowledges this in his response and agrees the claim should be dismissed.
6

Constitution itself, or from state laws and policies. See Wilkinson v. Austin, 545 U.S.
209, 220-21 (2005).
"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 segregation. Id
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)

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

7

Leonard fails to demonstrate that he enjoys a liberty interest in avoiding
segregation. Chapman v. Bacon, No. 3:14CV641, 2017 WL 559703, at *13 (E.D. Va.
Feb. 10, 2017) ("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."' (quoting Sandin, 515
U.S. at 484)). Leonard has not submitted any evidence that indicates segregation
constitutes an "atypical and significant hardship" in relation to the ordinary incidents of
5

prison life." Sandin, 515 U.S. at 484. Furthermore, Leonard fails to direct the Court to
any Virginia statutory or regulatory language that gives rises to a protected liberty
interest in avoiding segregated confinement. Accordingly, Claim I will be dismissed as
lacking in merit.
Defendants' Motion for Summary Judgment (ECF No. 20) will be granted. The
action will be dismissed.

An appropriate Final Order shall accompany this Memorandum Opinion.

Isl
HENRY E. HUDSON
UNITED STA TES DISTRICT JUDGE

l•..Wrgiia
\/i>~Ol"l
Richmond,
Date:

5

Leonard does not suggest his confinement in segregation impacted the Jength of his sentence.

8