Brownlee v. Newcome et al

Filing 13

MEMORANDUM OPINION. READ for complete details. Signed by District Judge M. Hannah Lauck on 05/16/2017. Copy mailed to Plaintiff.(ccol, )

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

MAY

SEAN A. BROWNLEE,
Plaintiff,

v.

Civil Action No. 3:16CV680

JEFFERY NEWCOME, et al.,
Defendants.

MEMORANDUM OPINION
Sean A. Brownlee, a Virginia inmate proceeding prose and informa pauperis, filed this
42 U.S.C. § 1983 action. 1 The matter is before the Court for evaluation pursuant to 28 U.S.C.
§§ l 915(e)(2) and 1915A.

I. Preliminary Review
Pursuant to the Prison Litigation Reform Act ("PLRA") this Court must dismiss any
action filed by a prisoner if the Court detennines the action (I) "is frivolous" or (2) "fails to state
a claim 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)), aff'd, 36 F.3d 1091
1

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.

(4th Cir. 1994). 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 ofNC. v. Martin, 980 F.2d 943, 952 (4th Cir.
1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356
(1990)). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded
allegations are taken as true and the complaint is 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 shon 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,
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

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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.I. 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 pro se complaints, Gordon v. Leeke, 574 F.2d 114 7, 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 or her complaint.

See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir. l 997)(Luttig, J., concurring); Beaudett v. City
of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

II. Summary of Allegations and Claims
In his Complaint, Brownlee alleges:2
On March 21 51, 22"d, 23rd, and the 24th 2016, my 8th Amendment right was
violated by the Riverside Regional Jail staff that was assigned to Housing Unit 3.
The institution was on "lockdown" for an overall search, which is commonly
known as a "shakedown" by the inmates and jail staff. It is stated in the inmate
handbook that every 72 hours, we are able to take a shower, during these days we
were denied the opportunity to take a shower and [were] also totally confined to
our cell. On March 24th it was well past 72 hours, I asked Officer Sample if it
was possible to take a shower. He said "he would see what he could do, but don't
get your hopes up." Sgt. Givens came in to serve trays at lunch and I asked if it
was possible to serve and let us take a shower he said "sir take your tray to your
cell." Capt. Hendricks came with a VCU student who was conducting a survey, I
asked if it was possible to take a shower he said "no, after you finish the survey
go back to your cell." So night shift comes on, the housing unit was already
searched and we [were] still on lockdown, I and a few other inmates asked to
speak with Sgt. Jones to see if we could take showers, the officer making rounds
told us that Sgt. Jones refused to come into the housing unit. March 25th was
when we were able to take showers. 4 days without a shower, 4 days of total
confinement!
2

The Court utilizes the pagination assigned to Brownlee's Complaint by the CM/ECF
docketing system. The Court corrects the capitalization, punctuation, and spacing in quotations
from Brownlee' s Complaint.

3

(Compl. 5, ECF No. l .)
The Court construes Brownlee's Complaint to raise the following claim for relief:
Claim One:

Defendants3 violated Brownlee's rights under the Eighth Arnendment4 by
(a) denying him a shower for four days, and (b) keeping him on lockdown
in his cell for four days. (Id)

Brownlee seeks injunctive relief as well as monetary damages. (Id. at 6.)

III. Analysis
To make out 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.

Quinones, 145 F.3d 164, 167 (4th Cir. 1998) (quoting Wilson v. Seiter, 501 U.S. 294, 298
(1991 )). Under the objective prong, the inmate must allege facts that suggest 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 v. McMillian, 503 U.S. 1, 9 (1992)).
"In order to demonstrate such an extreme deprivation, a prisoner must allege 'a serious or
significant physical or emotional injury resulting from the challenged conditions.'" De 'Lonta v.

Angelone, 330 F .3d 630, 634 (4th Cir. 2003) (quoting Strickler, 989 F .2d at 1381 ).
The subjective prong of a deliberate indifference claim requires the plaintiff to allege
facts that indicate a particular defendant actually knew of and disregarded a substantial risk of
serious harm to his or her person. See Farmer v. Brennan, 511 U.S. 825, 837 (1994).
3

The named Defendants are: Jeffery Newcome, Superintendent for the Riverside
Regional JaiJ ("RRJ"); Sergeant Jones; Officer Sample; Ms. Gilley, a Mental Health Supervisor
at RRJ; Captain Hendricks; and Sergeant Givens. (Compl. 1-3.)
4

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted." U.S. Const. amend. VIII.
4

"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 hann exists, and he [or she] 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 ofhann 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 fonn an inference that "the official in question subjectively
recognized a substantial risk of harm" and "that the official in question subjectively recognized
that his [or her] actions were 'inappropriate in light of that risk."' Parrish ex rel. Lee v.
Cleveland, 372 F.3d 294, 303 (4th Cir. 2004) (quoting Rich, 129 F.3d at 340 n.2).
In Claim One (a), Brownlee contends that Defendants violated his Eighth Amendment
rights by refusing to allow him to shower during a four-day period. (Compl. 5.) Reading the
Complaint liberally, Brownlee plausibly alleges a violation of what he calls "the inmate
handbook." (See Compl. 5, ECF No. I; ECF 1-1 at I; and ECF 1-2 at 1.) However, despite
Brownlee's assertion to the contrary, '"[t]he denial of [Brownlee's] right to shower ... for four
days does not constitute an Eighth Amendment violation." Yarborough v. Robinson, No. 977603, 1998 WL 879660, at *2 (4th Cir. Dec. 17, 1998); see Shakka v. Smith, 71F.3d162, 16768 (4th Cir. 1995) (concluding that no Eighth Amendment violation occurred when inmate was

5

given water and cleaning supplies but denied a shower for three days after having human waste
thrown on him); Barnes v. Cty. ofMonroe, 85 F. Supp. 3d 696, 738 (W.D.N.Y. 2015) (finding
four-day shower and exercise deprivation did not violate Constitution, noting that "[e ]ven a twoweek suspension of shower privileges does not constitute a denial of 'basic hygienic needs"'
(quoting McCoy v. Goord, 255 F. Supp. 2d 233, 260 (S.D.N.Y. 2003))); Nally v. N. Reg'/ Jail,
No. 2:11CV85, 2012 WL 5494512, at *4 (N.D. W. Va. Oct. 15, 2012) (concluding that denial of
showers for four days did not violate the Eighth Amendment), R&R adopted by 2012 WL
5494611 (N.D. W. Va. Nov. 13, 2012).
Brownlee fails to allege sufficient facts to suggest that he suffered a serious or significant
physical or emotional injury from the temporary deprivation of showers. De 'Lonta, 330 F.3d at
634. Moreover, Brownlee fails to allege facts indicating that Defendants knew of a substantial
risk ofhann to Brownlee and ignored that risk by denying him showers during a four-day period.

Farmer, 511 U.S. at 837. Accordingly, Claim One (a) will be DISMISSED.
In Claim One (b), Brownlee asserts that Defendants violated his rights under the Eighth
Amendment by keeping him "totally confined [in his] cell" for four days. 5 (CompL 5.) While
Brownlee may plausibly allege a violation of "the inmate handbook," he has nevertheless failed
to allege facts suggesting that the four-day lockdown constituted "an extreme deprivation" that
caused him serious or significant injury. De 'Lonta, 330 F.3d at 634 (quoting Strickler, 989 F.2d
5

In support of his Eighth Amendment claim, Brownlee contends that "the inmate
handbook" provides that, "during a lockdown situation there is a 23-1 rule in [e ]ffect which
means we are confined to the cell for 23 hours and out for I hour." (Pl' s Resp. to 8-26-16
Memo. 0. 1, ECF No. 7.) Several aspects of Brownlee's complaint suggest that he was not kept
in "total confinement" in his cell during all four days. (See Compl.l (stating that when Sergeant
Givens arrived in the unit to serve lunch trays, Brownlee asked if he could take a shower, and
Givens replied, "'Sir, Take your tray to your cell"'); see also id. (alleging that when a VCU
student came into Brownlee's housing unit conducting a survey, Brownlee again asked jail
personnel if he could shower, and a staff member told Brownlee, "'[A]fter you finish the survey
go back to your cell."')). The Court nonetheless liberally construes Brownlee's complaint to
allege a 24-hour lockdown in his cell for four days.
6

at 1381); see Lowery v. Bennett, 492 F. App'x 405, 408-10 (4th Cir. 2012) (concluding that
inmate sentenced to a ten-day cell confinement did not state an Eighth Amendment claim);

Phillips v. Norris, 320 F.3d 844, 848 (8th Cir. 2003) (concluding that inmate locked down for 37
days did not state an Eighth Amendment claim); Lunsford v. Hall, No. 3:16-CV-00625, 2016
WL 4801626, at *3 (M.D. Tenn. Sept. 14, 2016) (concluding no Eighth Amendment violation
occurred where plaintiffs were denied recreation for a four-day period during an investigative
lock down); Washington v. Burks, No. 04-CV-10352, 2008 WL 8694601, at *7 (E.D. Mich.
Dec. 17, 2008) (citing cases for the proposition that "[c]ourts have held that much longer lock
down periods than one day or one week do not violate the Eighth Amendment"), R&R adopted

sub nom. Washington v. Johnson, 2011WL5375189 (E.D. Mich. Nov. 4, 2011). Moreover,
Brownlee fails to allege facts indicating that Defendants knew of a substantial risk of harm to
Brownlee and ignored that risk by keeping him on lockdown during a four-day period. Farmer,

511 U.S. at 837. Accordingly, Claim One (b) v.ill be DISMISSED.
IV. Conclusion
For the foregoing reasons, Brownlee's claim will be DISMISSED. The action will be
DISMISSED. The Clerk will be DIRECTED to note the disposition of the action for the
purposes of28 U.S.C. § 1915(g).

An appropriate Order will accompany this Memorandum Opinion.

M. HannahL
United States

Date: MA~ 1 6 2017
Richmond, Virginia

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