Welty v. Meletis et al

Filing 113

MEMORANDUM OPINION. See Opinion for details Signed by District Judge John A. Gibney, Jr. on 4/11/2019. (sbea, )

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

JERRY WELTY, JR.,
Plaintiff,
Civil Action No. 3:16CV659

v.

PETE MELETIS, et al.,
Defendants.

MEMORANDUM OPINION
Jerry Welty, Jr., a Virginia inmate proceeding prose and informa pauperis, filed this 42
U.S.C. § 1983 action. 1 The matter is proceeding on Welty's Fourth Particularized Complaint
("Complaint," ECF No. 94) against Pete Meletis, George Hurlock, and Glendell Hill
("Defendants"). Meletis is the Superintendent of the Prince William Manassas Regional Adult
Detention Center ("ADC"). (ECF No. 1, at 2.) Hurlock is the Director of Security at the ADC.
(Id at 3.) Hill is the Chairman of the Prince William-Manassas Jail Board. (Id. at 4.) The matter

is before the Court on Defendants' Motion to Dismiss and the Court's obligation to review prisoner
actions pursuant to 28 U.S.C. § 191S(e)(2). Welty has responded. For the reasons set forth below,
the Motion to Dismiss (ECF No. 98) will be GRANTED IN PART and DENIED IN PART.

I. STANDARD FOR MOTION TO DISMISS
Pursuant to the Prison Litigation Reform Act ("PLRA") this Court must dismiss any action
filed by a prisoner if the Court determines the action (1) "is frivolous" or (2) "fails to state a claim

1

Defendants contend that Welty has failed to allege facts, such as diversity of the parties,
that would support diversity jurisdiction under 28 U.S.C. § 1332 and seek dismissal under Federal
Rule of Civil Procedure 12(b)(l). It does not appear that Welty has sought to invoke this Court's
diversity jurisdiction. Therefore, the Rule 12(b)(l) Motion warrants no further discussion.

on which relief may be granted." 28 U.S.C. § 1915(e)(2); see 28 U.S.C. § 1915A. 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 of NC. 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, 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

2

"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, 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, 514 F.2d 1147, 1151 (4th Cir. 1978), it will not act
as the inmate's advocate and develop, sua sponte, statutory and constitutional claims that 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); Beaudet! v. City of Hampton, 775 F.2d 1274, 1278 (4th
Cir. 1985).
II. SUMMARY OF PERTINENT ALLEGATIONS

A. The Assault
On January 5, 2015, Welty was incarcerated in the ADC. (Compl. 1.) Welty was detained
in the main jail of ADC ("MJ"), block 31. (Id.)2 At approximately 9:45 p.m., Welty was standing
in the middle of the dayroom when he was assaulted by an unknown inmate or inmates. (Id) The
beating went on for roughly 45 minutes, until Welty's unconscious body was discovered by ADC
staff. (Id)

2

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

Welty was awoken by ADC staff. (Id. at 2.) Welty was transported to a local hospital.
(Id. at 3.) Welty required in excess of a dozen stitches and sustained deep bruising to his pubic

area and penis. (Id. at 1-2.)
When he was returned to ADC, Welty was placed in cell 25. (Id at 4.) "The two inmates
that were in cell 25 were moved to 26. One of the inmates was Patterson, AKA Beast, a known
Blood gang member. Patterson was in 31 at the time of the attack." (Id. at 4.) Sergeant Delany
asked Welty if "any inmates tried to help him from the floor. Patterson was said to have a fresh
wound with blood all over his hands. [Patterson] claimed they came from helping Welty up.
Patterson was in jail for murder." (Id.)
B. Security in the ADC Dayrooms

According to Welty:
There was/is no reasonable security within MJ 31 ... i.e., no security
cameras, intercoms, staff presence, staff does not enter dayrooms on security walks,
only 3 (three) small observation windows (one 2' x 3' and two 2' x 2') whose size
and positioning "hinder" visibility, dim lights in the dayroom(s) while hall lights
are kept bright creating a mirror effect preventing staff vision, extreme architectural
design flaws preventing visibility, inmates see staff coming long before being seen.

(Id. at 2.) Welty contends that because of the lack of monitoring in the dayrooms, inmates know
they are "free to commit acts of violence" as "the only form of inmate monitoring is through
'listening."' (Id.)
C. Defendants' Knowledge Regarding the Security in the ADC Dayrooms

Welty contends that Defendants "Hurlock and Meletis have had 20 (twenty) plus years [of]
prior knowledge" of the above conditions. (Id) Welty contends that Defendant "Hill's knowledge
has been for an unknown amount of years .... " (Id.)
D. Allegations Pertaining to Grievances

Welty presents the following allegations regarding grievances that he filed after the assault:
4

In July 2016, ADC Major Osborne and Defendant Hurlock visited
Welty in protective custody concerning a large number of grievances he was
filing and to discuss their nature. Each pertained to a specific part of the
attack on Welty. After learning the information was going to be used for
litigation they said they were all being voided and not to file anymore.
For this Obsome told Welty via memo that in order to file a
grievance he must request permission to do so from Sgt. Fenner only by
written request. Sgt. Fenner is then to view the grievance and decide
whether to allow the grievance to be filed. This is gross abuse of policy
which is located in the inmate handbook. This has been threatening and
intimidating violating Due Process.
(Id. at 5.)

III. WELTY'S CLAIMS FOR RELIEF
Claim 1

Defendants violated Welty's rights under the Fourteenth Amendment by
creating an unsafe environment in the ADC dayroom that allowed Welty to
be beaten for forty-five minutes. (Compl. 7.)

Claim2

Defendants violated Welty's right to due process under the Fourteenth
Amendment because they (a) "retaliated against, threatened and intimidated
[Welty] for using the grievance system for gathering information for
litigation," and (b) hindered the criminal investigation into the assault on
Welty's person. (Id. at 7-8.)

Welty demands monetary damages and declaratory and injunctive relief.

IV. PRELIMINARY MATTERS
Prior to addressing the substance of Claim 1, it is appropriate to dispense with some
ancillary matters.
A. Moot Issues

As explained in the Memorandum Opinion and Order entered on June 19, 2018 (ECF
Nos. 87, 88), as Welty is no longer incarcerated at the ADC, his demands for injunctive and
declaratory relief are moot.

Accordingly, Welty's demands for injunctive relief will be

DISMISSED AS MOOT.

5

B. Documents Attached to the Fourth Particularized Complaint

In moving to dismiss the Complaint, Defendants rely upon documents attached to the
Complaint and documents they attached to the Motion to Dismiss.

The "exhibit-prevails

rule ... provides that 'in the event of conflict between the bare allegations of the complaint and
any exhibit attached ... , the exhibit prevails."' Goines v. Valley Cmty. Servs. Bd, 822 F.3d 159,
166 (4th Cir. 2016) (second alteration in original) (quoting Fayetteville lnv'rs v. Commercial

Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991)). Under this rule, "if a plaintiff 'attaches
documents and relies upon the documents to form the basis for a claim or part ofa claim, dismissal
is appropriate if the document negates the claim." Id. (emphasis added) (quoting Thompson v. Ill.

Dep 't ofProf/ Regulation, 300 F.3d 750, 754 (7th Cir. 2002)).
Nevertheless, as recently explained by the United States Court of Appeals for the Fourth
Circuit:
The "exhibit-prevails" rule is based on "the presumption that the plaintiff, by basing
his [or her] claim on the attached document, has adopted as true the contents of that
document." [Goines, 822 F.3d] at 167. However, "before treating the contents of
an attached or incorporated document as true, the district court should consider the
nature of the document and why the plaintiff attached it." Id "[I]n cases where the
plaintiff attaches or incorporates a document for purposes other than the
truthfulness of the document, it is inappropriate to treat the contents of that
document as true." Id. "The purpose for which the document is offered is
particularly important where the document is one prepared by or for the
defendant. Such unilateral documents may reflect the defendant's version of
contested events or contain self-serving, exculpatory statements that are unlikely to
have been adopted by the plaintiff." Id. at 168.

Bell v. Landress, 708 F. App'x 138, 138-39 (4th Cir. 2018) (third alteration in original). In Bell,
the Fourth Circuit concluded that, in dismissing inmate Bell's complaint, the district court
improperly relied upon a document attached to the complaint prepared by a prison official. Id at
139.

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In their Memorandum in Support of the Motion to Dismiss the Fourth Particularized
Complaint, Defendants fail to adequately explain why the Court can consider any document
outside of the Complaint. Given this deficiency, the Court's analysis will be limited to the factual
allegations in the Fourth Particularized Complaint.
C. Claims Not Addressed in the Motion to Dismiss
Defendants fail to articulate why Claims 2(a) and 2(b) should be dismissed. See Booker v.

S.C. Dep't ofCorr., 855 F.3d 533,545 (4th Cir. 2017) (concluding that an inmate's "right to file a
prison grievance free from retaliation [is] clearly established"), cert. denied, 138 S. Ct. 755 (2018).
Nevertheless, in order to focus on those aspects of the action that are of central concern to Welty
and the Court, the Court dispenses with those aspects of these claims that are clearly lacking in
merit.
"[A] plaintiff must plead that each Government-official defendant, through the official's
own individual actions, has violated the Constitution." Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
Welty fails to mention Defendants Hill and Meletis in conjunction with the facts that support Claim
2(a). Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974) ("Where a complaint alleges no specific
act or conduct on the part of the defendant and the complaint is silent as to the defendant except
for his name appearing in the caption, the complaint is properly dismissed, even under the liberal
construction to be given prose complaints." (citing Brzozowski v. Randall, 281 F. Supp. 306,312
(E.D. Pa. 1968))). Accordingly, Claim 2(a), as it pertains to Defendants Hill and Meletis, will be
DISMISSED.
In Claim 2(b), Welty contends Defendants somehow violated his rights by interfering with
his ability to pursue a criminal action against his assailant or assailants. Welty, as "a private citizen
lacks a judicially cognizable interest in the [criminal] prosecution or nonprosecution of another."

7

Linda R.S. v. Richard D., 410 U.S. 614,619 (1973); see Lopez v. Robinson, 914 F.2d 486,494 (4th
Cir. 1990) ("No citizen has an enforceable right to institute a criminal prosecution."). Accordingly,
Claim 2(b) will be DISMISSED.

V. ANALYSIS

A. Claim 1
According to Welty, he was a pretrial detainee at the time of the assault. (Compl. 1.)
Therefore, Claim 1 is governed by the Fourteenth, rather than the Eighth Amendment. See

Westmoreland v. Brown, 883 F. Supp. 67, 71 (E.D. Va. 1995) (citations omitted). Thus, Welty
must allege facts that indicate he was unconstitutionally punished in violation of the Due Process
Clause of the Fourteenth Amendment. See Engel v. Francis, No. 3:09CV585, 2010 WL 5300888,
at *3 (E.D. Va. Dec. 20, 2010) (citations omitted).

The relevant precedent teaches that

"punishment, whether for a convicted inmate or a pretrial detainee, is the product of intentional
action, or intentional inaction, respecting known and substantial risks of harm." Westmoreland,
883 F. Supp. at 72 (emphasis omitted) (citing Farmer v. Brennan, 511 U.S. 825, 837-38 (1994)).
"The issue of constitutional import presented in this action is when the risk of harm becomes so
substantial that 'deliberate indifference to it, ... is the legal equivalent ofinflicting 'punishment."'

Id. at 74.
In Farmer, the Supreme Court of the United States did not address "[a]t what point a risk
of inmate assault becomes sufficiently substantial for [constitutional] purposes." 51_1 U.S. at 834
n.3. However, it is understood that, "prisons are dangerous places. Inmates get there by violent
acts, and many prisoners have a propensity to commit more." Riccardo v. Rausch, 375 F.3d 521,
525 (7th Cir. 2004). Thus, "[a]ny time an individual is incarcerated, there is some risk that he may
be a victim of violence at the hands of fellow inmates .... " Westmoreland, 883 F. Supp. at 74.

8

Accordingly, a baseline risk of assault inherent in prison life does not support a constitutional
claim. See Grieveson v. Anderson, 538 F.3d 763, 776-77 (7th Cir. 2008).
Courts have found prison officials to be actually aware of a sufficiently substantial risk of
assault ''where custodians know of threats to specific prisoners posed by a specific source, or place
prisoners in the same cell as an inmate known to have violent propensities." Whaley v. Erickson,
339 F. App'x 619, 622 (7th Cir. 2009) (citing Brown v. Budz, 398 F.3d 904, 914-15 (7th Cir.
2005)). Additionally, an inmate may satisfy the deliberate indifference standard by alleging facts
that indicate "the risk of serious harm [is} ... substantial even though the precise victim or
assailant [is] not ascertainable." Westmoreland, 883 F. Supp. at 75. 3 In this regard, ajailor cannot
escape
liability for deliberate indifference by showing that, while he was aware of an
obvious, substantial risk to inmate safety, he did not know that the complainant was
especially likely to be assaulted by the specific prisoner who eventually committed
the assault. . . . [I]t does not matter whether the risk comes from a single source or
multiple sources, any more than it matters whether a prisoner faces an excessive
risk of attack for reasons personal to him or because all prisoners in his situation

face such a risk.
Farmer, 511 U.S. at 843 (emphasis added) (citation omitted). Here, Welty contends that the lack
of active monitoring combined with the structural defects of the dayroom is such that all prisoners
in his situation faced a known substantial risk that an attack like the one upon his person would
occur. See Whitson v. Stone Cty. Jail, 602 F.3d 920, 926-27 (8th Cir. 2010). 4

3

For example, a constitutionally significant risk of assault exists if"rape was so common
and uncontrolled that some potential victims dared not sleep [but] instead ... would leave their
beds and spend the night clinging to the bars nearest the guard station." Westmore/and, 883 F.
Supp. at 75 (alteration and omission in original) (quoting Farmer, 511 U.S. at 843-44).
4

In Whitson, the plaintiff, a female inmate, was raped by a male inmate in the back of a
prison van. The plaintiff claimed the defendant jail officials were deliberately indifferent to the
substantial risk that such an attack would occur:
9

According to the Complaint, the dayrooms at the ADC are largely unmonitored by security
staff. 5 Further, inmates in the dayrooms are able to avoid detection of any wrongdoing by security
staff because the inmates can see the staff approaching through the three small windows before the
staff can see into the dayroom. Thus, in this instance, one or more inmates were able to beat Welty
for over a half an hour without any interference by security staff. Although thin, Welty has alleged
sufficient facts to indicate that he "was 'incarcerated under conditions posing a substantial risk of
serious harm."' Patterson v. Kelley, 902 F.3d 845, 856 (8th Cir. 2018) (Grasz, J., concurring in
part and dissenting in part) (quoting Smith v. Ark. Dep't of Corr., 103 F.3d 637, 644 (8th Cir.
1996)); see Castro v. Cty. ofLos Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016) (observing that "the
absence of frequent visual checks and the lack of audio monitoring clearly made the risk of serious
harm to such [unmonitored] prisoners substantial''); Marsh v. Butler Cty., Ala., 268 F.3d 1014,
1028 (11th Cir. 2001) (concluding that jail conditions which, inter alia, "fail to provide an ability

She claims that this rape was foreseeable: two inmates of the opposite sex were
isolated and placed next to each other in the back of a dark van; there was loud
music; and the officers did not adequately observe, nor were they particularly
concerned about, the nefarious goings-on in the second caged compartment, which
was accessible only from the rear of the vehicle. Whitson alleges that by failing to
provide adequate attention to security during transfers of this nature where male
and female inmates are placed in a remote compartment where the safety, security
and welfare of the female inmate were not and could not be adequately maintained,
the defendants were deliberately indifferent to a risk of harm to her. This claim
does not arise from Leach's attack per se, but arises from Whitson's "allegation that
defendants were deliberately indifferent to a known substantial risk that such an
attack would occur."

Whitson v. Stone Cty. Jail, 602 F.3d 920,925 (8th Cir. 2010) (quoting Krein v. Norris, 309 F.3d
487, 491 (8th Cir. 2002)).
5

Welty contends that the inmates in the dayrooms have "no fear of accountability as the
only form of inmate monitoring is through 'listening."' (Compl. 2.) Welty does not indicate that
there are audio monitors in the dayroom. So, it appears that the security staff must overhear any
disturbance from whatever remote location where they are located. Nevertheless, Welty notes that
inmates "know that so long as they are quiet," they are "free to commit acts of violence." (Id)
10

to lock down inmates, and fail to allow for surveillance of inmates pose a substantial risk of serious
harm to inmates"); Bradford v. City of Chicago, No. 16 C 1663, 2017 WL 2080391, at *3 n.4
(N .D. Ill. May 15, 2017) ("[T]here does seem to be a reasonable degree of consensus that at a

minimum, officers and others on duty in jails or lockups should have the ability to see or hear
inmates and respond promptly to dangerous situations and calls for help." (citations omitted)).
"Having incarcerated 'persons [with] demonstrated proclivit[ies] for antisocial criminal, and often
violent, conduct,' Hudson v. Palmer, [468 U.S. 517,526 (1984)], having stripped them of virtually
every means of self-protection and foreclosed their access to outside aid, the government and its
officials are not free to let the state of nature take its course." Farmer, 511 U.S. at 833 (first and
second alteration in original).
Furthermore, Welty has pied sufficient facts to indicate that Meletis and Hurlock were
aware of and indifferent to the lack of monitoring in the dayrooms that posed a substantial risk of
serious harm. Meletis is the Superintendent of ADC and Hurlock is the head of security. Both
allegedly had worked at ADC for twenty years. Given the length of their employment and their
security-oriented role at ADC, these allegations "suggest that [Meletis and Hurlock] had been
exposed to information concerning the risk and thus must have known about it." Id at 842 (internal
quotation marks omitted). The same, however, cannot be said of Defendant Hill.
Defendant Hill was the Chairman of the Jail Board for the ADC. That fact alone does not
support a reasonable inference that Hill would be aware of the specific circumstances regarding
the monitoring of inmate activities in the dayroom. See Myrick v. NaphCare, Inc., No. 3:16-CV952-JAG, 2017 WL 3234383, at *3 (E.D. Va. July 31, 2017). Accordingly, the Motion to Dismiss
Claim 1 with respect to Defendant Hill will be GRANTED.

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B. Qualified Immunity
Defendants assert that they are entitled to qualified immunity because, "Welty is claiming
a right to not be assaulted in a jail. No such general protection or right exists as this risk exists
almost anywhere. No court has ruled that inmates have such a right." (ECF No. 99, at 14.) This
argument is incorrect. As the above precedent reflects, a pretrial detainee has a clearly established
due process right to be protected from a substantial risk of an attack by other detainees. See Castro,
833 F.3d at 1067. That right is violated when a defendant official's deliberate indifference to such
a risk permits an attack to occur. Id.; see Toomer v. Willies, No. JKS 12-83, 2015 WL 9259315,
at *2 (D. Md. Dec. 18, 2015) (concluding that "qualified immunity would not apply because '[a]
pretrial detainee's right to be free from a prison official's deliberate indifference to serious assaults
by other inmates was clearly established as of the April 2010 attack"' (citation omitted)).
Accordingly, Defendants are not entitled to qualified immunity at this time, but are not foreclosed
from reraising the issue later in the litigation.
Defendants also have raised the issue of qualified immunity as a basis for staying all
discovery and issuing a protective order. 6 (ECF No. 108.) Given the Court's ruling on the Motion
to Dismiss, the Court will DENY Defendants' request for a protective order at this time. (ECF
No. 108). Defendants have failed to suggest a legal and factual scenario under which their defense
of qualified immunity would prevail. Poole v. Gaston Cty., No. 315-CV-00309-FDW-DCK,
6

Discovery is generally not appropriate when Defendants have raised a defense of qualified
immunity. Siegert v. Gilley, 500 U.S. 226,232 (1991) (noting that "[u]ntil the threshold immunity
question is resolved, discovery should not be allowed" (alteration in original) (quoting Harlow v.
Fitzgerald, 451 U.S. 800, 818 (1982))). This is because "[d]ecision of this purely legal question
permits courts expeditiously to weed out suits which fail the [qualified immunity] test without
requiring a defendant who rightly claims qualified immunity to engage in expensive and time
consuming preparation to defend the suits on its merits." Id As explained above, Defendants
failed to demonstrate that as a purely legal matter they are entitled to qualified immunity at the
pleading stage.
12

2016 WL 4267792, at *7 (W.D.N.C. Aug. 11, 2016) (concluding that "because the immunity
defenses are so intertwined with the allegations of the case, the Court finds that normal discovery
protocol will assist the Court and the Court will revisit immunity if reasserted at summary
judgment"). Moreover, it appears any Motion for Summary Judgment will turn on evidentiary
grounds (i.e. whether a violation of Welty's rights occurred), rather than on the purely legal
"question of qualified immunity (i.e., whether the right(s) violated-assuming that violation(s)
occurred-were clearly established)." Delk v. Younce, No. 7:14CV00643, 2016 WL 1298389, at
*1 (W.D. Va. Mar. 31, 2016). Given the foregoing circumstances, Welty should be permitted to
engage in normal discovery. Id at *2 (noting that "[g]enerally, a court should not grant summary
judgment when, as here, outstanding discovery requests on material issues exist" (alteration in
original) (quoting Raynor v. Pugh, 817 F.3d 123, 130 n.5 (4th Cir. 2016))).
Welty has filed a "MOTION PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF
DOCUMENTS" (ECF No. 100). The parties are reminded that discovery is to be conducted on
an informal basis. No motion concerning discovery may be filed with the Court until the parties
have made a good faith effort to resolve all legitimate discovery disputes. See E.D. Va. Loe. Civ.

R. 37(E). The Court reminds Welty that discovery requests must be reasonable and relevant to the
issues presently before the Court. Welty must also certify that a good faith effort has been made
to resolve the discovery matter at issue by conferring with counsel for Defendants regarding the
resolution of such matters. Fed. R. Civ. P. 37(a)(l). As Welty's Motion (ECF No. 100) fails to
contain such a certification, it will be DENIED WITHOUT PREJUDICE. The parties are
encouraged to cooperate in discovery and avoid unnecessary motions regarding discovery.

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VI. CONCLUSION
A. The Remaining Claims
The Motion to Dismiss (ECF No. 98) will be GRANTED IN PART AND DENIED IN
PART. Welty's claims for injunctive relief will be DISMISSED AS MOOT. Claim 1 will be
DISMISSED with respect Defendant Hill.
Defendants Hill and Meletis.

Claim 2(a) will be DISMISSED with respect to

Claim 2(b) will be DISMISSED.

Defendants' request for a

protective order (ECF No. 108) will be DENIED. Welty's discovery motion (ECF No. 100) will
be DENIED WITHOUT PREWDICE.
Thus, the following claims remain before the Court:
Claim 1

Defendants Hurlock and Meletis violated Welty's rights under the
Fourteenth Amendment by creating an unsafe environment in the ADC
dayroom that allowed Welty to be beaten for forty-five minutes.

Claim 2

(a) Defendant Hurlock "retaliated against, threatened and intimidated
[Welty] for using the grievance system for gathering information for
litigation." (Compl. 8.)

B. Further Proceedings
Defendants shall file their answer within eleven ( 11) days of the date of entry hereof. Any
party wishing to file a dispositive motion must do so within forty-five (45) days of the date of entry
hereof. The matter will be set for trial before the undersigned on August 26, 2019.
An appropriate Order will accompany this Memorandum Opinion.

Isl
Date: /l ~ WI~
Richmond, \f irginia

John A. Gibney, Jr.

United States Distri t J

14