Hunter v. Fairfax County Adult Detention Center et al
Filing
72
MEMORANDUM OPINION. Signed by District Judge John A. Gibney, Jr on 8/26/19. (Copy mailed to plaintiff).(jtho, )
nr
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
AUG 2 7 JOB
CHARLES C. HUNTER,
CLERK U S. DISTRICT COURT
RICHMOND, VA
Plaintiff,
V.
Civil Action No. 3:18CV153
DIRECTOR RAUF,et al..
Defendants.
MEMORANDUM OPINION
Charles C. Hunter, a Virginia inmate proceeding pro se and informa pauperis, filed this
42 U.S.C. § 1983 action.'
The action proceeds on Hunter's Particularized Complaint
("Complaint," ECF No. 18)." Hunter names as defendants: Director Rauf,^ Supervisor Malike,
and Supervisor Osafo. The matter is before the Court on the Motion to Dismiss filed by Supervisor
Malike and Supervisor Osafo. (ECF No.42.) Hunter has responded. (ECF Nos. 47,52.)'' For the
'The statute provides, in pertinent part:
Every person who, under color ofany statute...ofany 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.
^ The Court employs the pagination assigned to the parties' submissions by the CM/ECF
docketing system. The Court corrects the capitalization, punctuation, and spelling in the
quotations from Hunter's submissions.
^ Defendant Director Rauf has not yet appeared in this action.
'* Hunter initially filed a Response in Opposition ("Response") to Defendants Supervisor
Malike and Supervisor Osafo's Motion to Dismiss on November 21, 2018. (ECF No. 47.) After
Defendants Supervisor Malike, and Supervisor Osafo filed their Reply(ECF No. 49), Hunter filed
an "Opposition to Defendants' Motion to Dismiss - Reply by Plaintiff ("Second Response").
reasons stated below, the Motion to Dismiss (ECF No. 42) 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 (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. § 19I5A. 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
v. Williams, 490 U.S. 319, 327(1989)), aff'd, 36 F.3d 1091 (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 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
(ECF No. 52.) Hunter did not seek leave of Court prior to filing his Second Response. See E.D.
Va. Loc. Civ. R. 7(F)(1)(explaining that after a non-moving party files a brief in opposition to an
opposing party's motion, and the moving party files its reply brief, "[n]o further briefs or written
communications may be filed without first obtaining leave of Court"). Nevertheless, the Court
will consider Hunter's Second Response in its analysis of the Motion to Dismiss.
In addition to filing his Second Response, Hunter filed numerous submissions with the
Court, which consist of letters to the Court, as well as copies of various inmate request forms and
other documents related to his medical treatment. To the extent that Hunter seeks to add vague
new claims in his Response, Second Response, and various submissions, the Court notes that
Hunter cannot add new claims by a passing reference in these filings. See Snyder v. United States,
263 F. App'x 778, 779-80(I Ith Cir. 2008)(refusing to consider petitioner's statement in a reply
brief as an attempt to amend his § 2255 motion to add a new claim); E.I. du Poni de Nemours cfe
Co. V. Kolon Indus., Inc., 847 F. Supp. 2d 843, 851 n.9(E.D. Va. 2012); Equity in Athletics. Inc.
V. Dep't ofEduc., 504 F. Supp. 2d 88, III (W.D. Va. 2007)(citations omitted)(explaining that
"new legal theories must be added by way of amended pleadings, not by arguments asserted in
legal briefs"). Accordingly, to the extent that Hunter seeks to add any new claims in his Response.
Second Response, and various submissions, the new claims will receive no further consideration
in this action.
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. Maikari, 7 F.3d II30, 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, arc
not entitled to the assumption of truth." Ashcrofi 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 ... elaim is and the grounds upon which it rests.'" Bell All. Corp. v. Twombly, 550 U.S.
544,555(2007)(second alteration in original)(quoting Conleyv. 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 elaim that is "plausible on its faee," id. at 570, rather than merely
"conceivable." Id. "A elaim 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 misconduet
alleged." Iqbal, 556 U.S. at 678 (citing Bell All. 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 Nemoitrs & 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
construes pro se complaints, Gordon v. Leeke, 574 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 Brock v. Carroll, 107 F.3d 241,243
{4th Cir. 1997)(Luttig, J., concurring); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th
Cir. 1985).
II. HUNTER'S ALLEGATIONS
In his Complaint, Hunter alleges that Defendants Supervisor Malike and Supervisor Osafo
"are head or supervisor nurses," and "[t]hese two nurses report to Director Rauf." (Compl. 1.)
Hunter further alleges:
...[Defendants] are the heads of Fairfax Detention Center['s] medical department
that I know of and the only names given [to] me. Rauf, Malike, and Osafo knew 1
wasn't or didn't receive meds and they took no actions in getting my meds. I wrote
a number of medical request forms stating my concerns for missing meds (blood
thinner) which my primary care doctor stress[ed] that I shouldn't miss a day of
meds. My medical request forms state[] time and time again asking what danger
was I in due to missing meds. I never received an answer which cause[d] me
MAJOR mental stress and many sleepless nights thinking the blood elot would
break off and kill me.
Constitution violation. My 8"* Amendment under cruel and unusual punishment.
A reply would have not cause[d] mental stress and sleepless nights and days
worrying if the clot would break off.
Since being at Fairfax Detention Center, 1 have misse[d] a number of days oftaking
meds,again with no reply from staff. Only reply I receive was- we ran out of your
meds. Again days and nights with no sleep concerning whether or not the clot
would break off. I explain to medical I have an extensive blood clot which I had to
fight for my life for months. Malike [and] Osafo knew just how extreme my clot
is. They knew a small piece already broke off and went to my lung and 1 was
already afraid for my life. Missing five days of meds wasn't an option for me.
Constitution violation. My 8"' Amendment under cruel and unusual punishment.
Knowing my mental state from missing meds before due to medical not giving me
my meds. Once again I go into a state of depression.
Just recently, I missed six days of meds and the staff, Malike and Osafo, on the
six[th] day wanted to switch my meds without contacting my doctor or taking any
tests (blood or urine) to see how or if the new meds would work for me. I
explain[ed] that they should reach out to my doctor and ask [him] could I switch
medication. I explain that my primary care doctor [gave] me Xarelto and to change
it after a year might not be the right thing to do. Especially when you haven't taken
any tests. These events cause lead [sic] me to seek forensic staff(Mental Health)
which said they couldn't help because I wasn't hearing voices in my head.
Constitution violation. 8"'' Amendment under cruel and unusual punishment. 1 was
being force[d] to change meds which made me mentally depress[ed] and once again
I had many sleepless nights praying my clot won't break off.
{Id. (paragraph numbers omitted).)
Additionally, Hunter alleges:
...[Mjedical once again disregard[ed] my medical needs, I take moming meds for
my(DVT)blood clot in my left leg. This is a medical fact that my meds should be
taken every day around the same time, not only have 1 miss[ed] meds due to the
medical staff, who the supervisor is at fault. Team leader(supervisor)Nurse Osafo
who reports to Nurse (Sgt) Kent never informed Nurse Kent of the many issues, at
least that's what Nurse Kent claims. My times are constantly altered by Nurse
Osafo. I ask for a grievance form time after time in order to get help, I'm only
provided request forms. 1 have never been provided a grievance form to address
this matter. On 7-27-18, 1 received my meds at 4:10 p.m. after Deputy Roberts
called main medical concerning my mods. Deputy Roberts was inform[ed] that due
to me going to Bible study(programs)1 wasn't given meds. If I want meds, 1 would
have to cancel my Bible study class 1 attend [which] the jail provides. In short, 1
was ask[ed] to make a choice between getting meds or my faith. According to my
P' Amendment this is a violation, why should I have to choose between life and
faith. Finally, I was sent to main medical and Nurse Osafo mention[ed] the same
thing to me in the presence of Mr. Andrew who works in the office. Nurse Osafo
was verbally abusive towards me concerning me going to programs. Regardless of
my incarceration, 1 shouldn't have to deal with this emotional stress concerning
refusal of meds and[/]or delay (seven hours) of meds. Please keep in mind 1 was
force[d] to miss meds for six days and was pressured to change my meds after
medical [had] been [giving] me the same meds for the better part of eight months.
This was mention[ed] without contacting my primary care doctor which 1 asked
them to do....
Constitution violation. 8'*' Amendment under cruel and unusual punishment. 1
worry every day concerning what's the next thing medical staff will do, when 1
mention medical staff, the nurses are Osafo and the supervisor he reports to which
is Nurse (Sgt) Kent and Director Rauf. 1 find it difficult to sleep due to concerns
of death. 1 have many sleepless nights.
(EOF No. 18-3, at 1.)'
^ When Plaintiff filed his Particularized Complaint(ECF No. 18,at 1), he included a second
page to his Particularized Complaint, titled: "PARTICULARIZED[] COMPLAINT FOR CIVIL
Based on the foregoing allegations, the Court construes Hunter to raise the following
claims for relief:
Claim One:
Director Rauf, Supervisor Malike, and Supervisor Osafo violated
Hunter's Eighth Amendment^ rights when "they took no actions in
getting [Hunter's] meds," despite knowing that he had not received
his blood thinner medication. (Compl. 1.)
Claim Two:
Supervisor Malike and Supervisor Osafo violated Hunter's Eighth
Amendment rights when they "wanted to switch [Hunter's] meds
without contacting [Hunter's] doctor or taking any tests (blood or
urine)to see how or ifthe new meds would work for [Hunter].'" {Id.)
Claim Three: Hunter "ask[ed] for a grievance form time after time in order to get
help," and was never provided with a grievance form; he was "only
provided request forms." (ECF No. 18-3, at 1.)
Claim Four: Hunter's First Amendment' rights were violated when "[he] was
ask[ed] to make a choice between getting meds or [his] faith." {Id.)
Hunter demands "2 million dollars due to repeated neglect and mental stress." (Compl. 1.)
III. ANALYSIS
A. Alleged Eighth Amendment Violations
To state an Eighth Amendment claim, an inmate must allege facts showing "(1) that
objectively the deprivation of a basic human need 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
Seller, 501 U.S. 294,298 (1991)).
Under the objective prong, the inmate must allege facts to suggest that the deprivation complained
ACTION NUMBER 3:18CV153 ADDITIONAL INFORMATION TO CONSIDER." (ECF
No. 18-3.at l.)
^ "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted." U.S. Const, amend. Vlll.
'
"Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof...." U.S. Const, amend. 1.
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 (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'Lonla v. Angelone, 330 F.3d 630, 634 (4th Cir.
2003) (quoting Strickler, 989 F.2d at 1381). With respect to claims of inadequate medical
treatment under the Eighth Amendment,"the objective component is satisfied by a serious medical
condition." Quinones, 145 F.3dat 167.
The subjective prong requires the plaintiffto allege facts that indicate a particular defendant
actually knew of and disregarded a substantial risk of serious harm to his 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). Thus, to survive
a motion to dismiss,the deliberate indifference standard requires a plaintiffto assert faets 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 [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 order to state an Eighth Amendment claim for denial of adequate medical care, "a
prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to
serious medical needs." Estelle,429 U.S. at 106. "To establish that a health care provider's actions
constitute deliberate indifference to a serious medical need, the treatment must be so grossly
incompetent, inadequate, or e.xcessive as to shock the conscience or to be intolerable to
fundamental fairness." Millier v. Beorn,896 F.2d 848,851 (4th Cir. 1990)(citing Rogers
Evans,
792 F.2d 1052, 1058 (11th Cir. 1986)), overruled in part on other grounds by Farmer, 511 U.S.
at 837. Furthermore, in evaluating a prisoner's complaint regarding medical care, the Court is
mindful that "society does not expect that prisoners will have unqualified access to health care" or
to the medical treatment oftheir choosing. Hudson,503 U.S. at 9(citing Estelle, 429 U.S. at 10304). In this regard, the right to medical treatment is limited to that treatment which is medically
necessarj' and not to "that which may be considered merely desirable." Dom ing v. Godwin, 551
F.2d44,48 (4th Cir. 1977).
1. Claim One
In Claim One, Hunter alleges that Director Rauf, Supervisor Malike, and Supervisor Osafo
violated his Eighth Amendment rights because they knew that Hunter had not received his blood
thinner medication, and "they took no actions in getting [his] mcds." (Compl. 1.) Supervisor
Malike and Supervisor Osafo argue that Hunter fails to state an Eighth Amendment claim against
them because Hunter fails to allege "that he suffered any adverse physical effects from any delay
in receiving his blood thinner medication" or "that either [Super\'isor] Malike or [Super\'isor]
Osafo acted with deliberate indifference." (Mem. Supp. Mot. Dismiss 6-7, ECF No. 43.)
Here, the Complaint indicates that Hunter requires daily medication for his "(DVT)[®]
blood clot in [his] left leg," and that "the blood clot [could] break off." (ECF No. 18-3, at 1.)
Supervisor Maliko and Supervisor Osafo argue that Hunter fails to allege facts suggesting that he
suffered an injury from this six-day period during which he did not receive his medication. (Mem.
Supp. Mot. Dismiss 6-7.) Although Hunter's allegations lack precision, at this stage. Hunter has
pled sufficient facts to plausibly suggest that his condition warranted daily medication, and that
his failure to receive such medication was "sufficiently serious." (Compl. 1); see Quinones, 145
F.3d at 167 (quoting Wilson, 501 U.S. at 298); see also Johnson v. Coleman, 506 F. App'x 125,
126-28 (3d Cir. 2012)(discussing that the plaintiff, who had deep vein thrombosis, had "alleged
a serious medical condition").
Further, although Hunter's allegations regarding the actions of each Defendant are vague,
considered in the light most favorable to Hunter,the Complaint alleges sufficient facts to plausibly
suggest that, despite knowing that Hunter's condition required daily blood thinner medication and
that Hunter had not received such medication for a six-day period, Defendants failed to provide
Hunter with his required medication. (Compl. 1.) Accordingly, Hunter's allegations plausibly
suggest that "the defendant officials knew of a constitutional deprivation and approved it, turned
a blind eye to it, failed to remedy it, or in some way personally participated." Vance v. Peters, 97
F.3d 987, 994 (7th Cir. 1996)(citation omitted). At this stage, such allegations are sufficient to
indicate that Defendants acted with deliberate indifference.
See id.-, {see
Compl. 1.)
Accordingly, the Motion to Dismiss filed by Supervisor Malike and Supervisor will be DENIED
with respect to Claim One.
^ "Deep vein thrombosis, or DVT, is a blood clot that forms in a vein deep in the body."
Deep Vein Thrombosis, https://medlineplus.gov/deepveinthrombosis.html (last visited Aug. 12,
2019).
2. Claim Two
In Claim Two, Hunter contends that Supervisor Malike and Supervisor Osafo violated his
Eighth Amendment rights when they "wanted to switch [Hunter's] meds without contacting
[Hunter's] doctor or taking any tests (blood or urine) to see how or if the new meds would work
for [Hunter]." (Compl. 1.) Supervisor Malike and Supervisor Osafo argue that Claim Two should
be dismissed because the "decision to change the type of blood thinner medication [Hunter] was
taking without consulting an outside physician is simply not an 'objectively sufficiently serious'
deprivation in and ofitself," and Hunter "wholly fails to allege any substantial harm resulting from
his medicine change." (Mem. Supp. Mot. Dismiss 8.) Supervisor Malike and Supervisor Osafo
also argue that Hunter fails to allege sufficient facts to plausibly suggest that they acted with
deliberate indifference when they changed Hunter's medication, {hi at 8-9.)
Generally,"the question whether an X-ray or additional diagnostic techniques or forms of
treatment is indicated is a classic example of a matter for medical Judgment. A medical decision
not to order an X-ray, or like measures,does not represent cruel and unusual punisliment." Estelle,
429 U.S. at 107. Nevertheless,"[w]hether a course oftreatment was the product ofsound medical
judgment, negligence, or deliberate indifference depends on the facts of the case." Chance v.
Armstrong, 143 F.Sd 698, 703(2d Cir. 1998). Here, Hunter contends that he had been taking his
preferred blood thinner medication for approximately one year, and that Supervisor Malike and
Supervisor Osafo decided to change his medication "without contacting [Hunter's] doctor or
taking any tests (blood or urine)." (Compl. 1.)
Despite Hunter's apparent desire to receive his preferred blood thinner medication. Hunter
simply lacks entitlement to the medical care of his choosing. See Wright v. Collins, 766 F.2d 841,
849 (4th Cir. 1985) (citing Gittlemacker v. Prasse, 428 F.2d 1, 6 (3d Cir. 1970)). Absent
10
exceptional circumstances, an inmate's disagreement with medical personnel with respect to a
course of treatment is insufficient to state a cognizable constitutional claim, much less to
demonstrate deliberate indifference. See id (citation omitted). Hunter alleges no such exceptional
circumstances. Instead, Hunter states nothing more than a disagreement with Supervisor Malike's
and Supervisor Osafo's professional medical opinions about the appropriate course of treatment,
and thus fails to state a cognizable constitutional claim, much less deliberate indifference.
{See Compl. 1; ECF No. 18-3, at 1.) Accordingly, the Motion to Dismiss filed by Supervisor
Malike and Supervisor Osafo will be GRANTED with respect to Claim Two. Claim Two will be
DISMISSED WITHOUT PRE.IUDICE.
B. Allegedly Inadequate Grievance Procedure
In Claim Three, Hunter contends that he "ask[ed] for a grievance form time after time in
order to get help," and was never provided with a grievance form; he was "only provided request
forms." (ECF No. 18-3, at 1.)
As an initial matter. Hunter fails to allege any facts suggesting that the named Defendants
had any direct involvement or personal responsibility with respect to "only provid[ing] request
forms," rather than grievance forms, as Hunter had requested. See Ashcrofl v. Iqbal,556 U.S.662,
676 (2009) ("[A] plaintiff must plead that each Government-official defendant, through the
official's own individual actions, has violated the Constitution."). Moreover, Hunter has no
constitutional right to participate in grievance procedures. Adams v. Rice,40 F.3d 72, 75 (4th Cir.
1994)(citing Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991)). Furthermore, a prison official's
failure to comply with grievance procedures is not actionable under § 1983. See, e.g.. Chandler
Cordova, No. 1:09CV483 (LMB/TCB), 2009 WL 1491421, at *3 n.3 (E.D. Va. May 26, 2009);
Bonks V. Nagle, 3:07CV419-HEH,3:09CV14, 2009 WL 1209031, at *3(E.D. Va. May 1, 2009).
Accordingly, Claim Three will be DISMISSED for failure to state a claim upon which relief may
be granted and as legally frivolous.
C. Alleged Violation of the First Amendment
In Claim Four, Hunter alleges that his First Amendment rights were violated when "[he]
was ask[ed] to make a choice between getting meds or [his] faith." (ECF No. 18-3, at 1.)
Specifically, Hunter contends:
On 7-27-18, 1 received my meds at 4:10 p.m. after Deputy Roberts called main
medical concerning my meds. Deputy Roberts was inform[ed] that due to me going
to Bible study (programs) 1 wasn't given meds. If I want meds, I would have to
cancel my Bible study class I attend [which] the jail provides. In short, I was
ask[ed] to make a choice between getting meds or my faith. According to my D*
Amendment this is a violation, why should I have to choose between life and
faith.. . . Regardless of my incarceration, 1 shouldn't have to deal with this
emotional stress concerning refusal of meds and[/]or delay (seven hours) of meds.
m
To state a Free Exercise claim. Hunter must allege facts that suggest "(1) that he holds a
sincere belief that is religious in nature" and (2) that Defendants imposed a substantial burden on
the practice of his religion. Whitehouse v. Johnson, No. 1:10CV1175 (CMH/JFA), 2011 WL
5843622,at *4(E.D. Va. Nov. 18,2011)(citing Hernandez v. Comm 'r Internal Revenue,490 U.S.
680, 699 (1989)). "Government officials impose a substantial burden on the free exercise of
religion by 'put[ting] substantial pressure on an adherent to modify his behavior and to violate his
beliefs.'" Massenburgv. Adams,\^o. 3:08cvl06,2011 WL 1740150,at *4(E.D. Va. May 5,2011)
(alteration in original)(some internal quotation marks omitted)(quoting Lovelace v. Lee,472 F.3d
174, 187 (4th Cir. 2006)). A mere inconvenience to the exercise of religion fails to give rise to a
First Amendment violation. McEachin v. McGuinnis, 357 F.3d 197, 203 n.6 (2d Cir. 2004)
("There may be inconveniences so trivial that they are most properly ignored.") Moreover,"[d]e
minimis burdens on the free exercise of religion are not of constitutional dimension." Rapier v.
12
Harris, 172 F.3d 999, 1006 n.4 (7th Cir. 1999)(citations omitted). Second, Hunter must allege
that the restriction fails to further a legitimate penological interest. See Turner v. Sqfley, 482 U.S.
78, 89-91 (1987).
Here, Hunter fails to allege any facts regarding the sincerity of his religious beliefs. {See
Compl. 1; ECF No. 18-3, at 1.) Furthermore, Hunter fails to allege any facts to plausibly suggest
that Defendants imposed a substantial burden on his ability to practice his religion. {See Compl. 1;
ECF No. 18-3, at 1.) Specifically, Hunter contends that on July 27, 2018, he received his
medication seven hours later than he would normally receive such medication because he had
attended Bible study classes. {See ECF No. 18-3, at 1.) Hunter wholly fails to allege any facts to
plausibly suggest that Defendants placed substantial pressure on him to modify and violate his
religious beliefs by changing the time at which he received his medication when he attended Bible
study classes. Instead, Hunter's receipt of his medication at a different time ofthe day amounts to
a di minimis burden on his free exercise of religion. Cf. Rapier, 172 F.3d at 1006 n.4 (citations
omitted)(discussing that the plaintiff"[had] not alleged a routine or blanket practice of denying
him pork-free meals," and "the unavailability of a non-pork tray for [the plaintiff] at 3 meals out
of 810 does not constitute more than a de minimis burden on [the plaintiffs] free exercise of
religion"). Accordingly, Claim Four will be DISMISSED WlTl lOU'f PREJUDICE.
IV. HUNTER'S MOTIONS
A. Motion to Change Venue
Hunter moves the Court to transfer this action to the Alexandria Division because after he
is released from incarceration,"[he has] no way of traveling to Richmond, VA for court." (ECF
No. 26, at 1.) At this time, no trial, hearing, or other court appearance has been scheduled. Thus,
13
Hunter's Motion to Change Venue(ECF No. 26) will be DENIED WITHOUT PREJUDICE. If a
trial, hearing, or other court appearance is scheduled, Hunter may file his motion again.
B. Motion for Appointment of Counsel
Hunter also moves the Court for the appointment ofcounsel. (ECF No. 27.) Counsel need
not be appointed in § 1983 cases unless the case presents complex issues or exceptional
circumstances. See Fowler v. Lee, 18 F. App'x 164, 166 (4th Cir. 2001)(citation omitted). This
action presents no complex issues or exceptional circumstances. Additionally, Hunter's pleadings
demonstrate that he is competent to represent himself in the action. Accordingly, Hunter's Motion
for the Appointment of Counsel(ECF No. 27) will be DENIED WITHOUT PREJUDICE.
V. CONCLUSION
The Motion to Dismiss (ECF No. 42) will be GRANTED IN PART and DENIED IN
PART. Claims Two and Four will be DISMISSED WITHOUT PREJUDICE. Claim Three will
be DISMISSED for failure to state a claim upon which relief may be granted and as legally
frivolous. Hunter's Motion to Change Venue (ECF No. 26) will be DENIED WITHOUT
PREJUDICE. Hunter's Motion for the Appointment of Counsel(ECF No. 27) will be DENIED
WITHOUT PREJUDICE. The action will proceed on Claim One. Any party wishing to file a
dispositive motion must do so within sixty (60) days of the date of entry hereof.
An appropriate Order will accompany this Memorandum Opinion.
Date:/-<^
United States Dls
Richmond, Virginia
14
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