Carter v. Stith et al
Filing
175
MEMORANDUM OPINION. Signed by District Judge M. Hannah Lauck on 2/7/2024. (jpow, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
BENJAMIN F. CARTER,
Plaintiff,
Civil Action No. 3:22cv775
V.
MIRANDA STITH, etal.
Defendants.
MEMORANDUM OPINION
Benjamin F. Carter, a Virginia inmate proceeding pro se, filed this 42 U.S.C. § 1983
actionJ The action proceeds on Carter’s Third Amended Complaint. (ECFNo. 76.) Carter
names as defendants the following individuals and entity: Counselor Miranda Stith, Lt. Knight,
Warden Bailey, Hearing Officer Lawrence, Nurse Sykes, Zachary Davis of the VDOC Inmate
Discipline Unit (“VDOC IDU”), Correctional Officer (“CO”) H. Burrows, the Commonwealth of
Virginia, and five John Doe defendants. The matter is before the Court on the Motions for
Summary Judgment filed by the named Defendants. (ECF Nos. 105,111.) Because some of the
allegations in Third Amended Complaint that provide the background for Carter’s claims are
omitted from the parties’ evidence in support of support of their Motions for Summary Judgment
it is appropriate to briefly summarize those allegations and Carter’s claims.
1
The Court employs the pagination assigned by the CM/ECF docketing system to the
parties’ submissions. The Court corrects the spelling, punctuation, and capitalization and omits
excessive emphasis in quotations from the parties’ submissions. The Court omits any secondary
citations in the quotations from the parties’ submissions. The Court employs the spelling
Defendant Burrows’s name found in his Motion for Summary Judgment.
I. Summary of Allegations and Claims
A.
Summary of Allegations
1.
The First False Charge
Carter asserts that, while housed at the Greensville Correctional Center (“GCC”), he and
Counselor Stith would always disagree on matters pertaining to his annual review.^ (ECF
No. 76, at 3^.) Therefore, on July 15, 2019, Carter initiated a verbal complaint, which he
describes as part of GCC’s grievance procedure, to have Counselor Basketville conduct his
annual review. (ECF No. 76, at 4.) Carter’s complaint was approved to the extent that, on July
16, 2019, Counselor Basketville conducted Carter’s annual review. (ECF No. 76, at 4.) While
Carter and Counselor Basketville were conducting his annual review, Counselor Stith rushed into
the office and stated Carter “would get a charge for 'eating’ her popcorn, so that [he] ‘couldn’t
get transferred’ closer to home and for requesting another counselor do [his] annual review.
(ECF No. 76, at 4.) “Later that day, on July 16, 2019, Stith wrote [Carter] a false [charge]...
‘for stealing any persons property’ which was a 100 series offense (11 IB). ..
(ECF No. 76,
at 4-5.)
2.
The Second False Charge
On July 17, 2019, Counselor Stith became upset when she realized that Carter had not
been taken to solitary confinement. (ECF No. 76, at 5.) Accordingly, Counselor Stith wrote
another false charge against Carter, Case No. GCC-2019-3801, for approaching in a threatening
manner. (ECF No. 76, at 5.)
^ GCC is a Security Level 2/3 facility. {See ECF No. 76, at 14-15; ECF No. 137-1, ^ 8.)
2
3.
The Third False Charge and the July 18, 2019 Assault
On July 18, 2019, Counselor Stith contacted Lieutenant Stith^ and instructed him to take
Carter to solitary confinement. (ECF No. 76, at 5-6.) Thereafter, “roughly 5 John Doe(s)” came
to Carter’s cell and repeatedly punched him in the face and head in the process of moving him to
the Restrictive Housing Unit (“RHU’*). (ECF No. 76, at 6-7.) Thereafter, Counselor Stith wrote
another false charge against Carter for threatening to cause bodily harm against her, Case
No. GCC-2019-3803. (ECF No. 76, at 7.)
4.
Alleged July 26, 2019 Use of Excessive Force and the Flap Pod
On July 26, 2019 Warden Bailey ordered that Carter be brought to Unit Manager
Robertson’s office in full restraints. (ECF No. 76, at 8.) Warden Bailey and Defendant Sykes
were in the office when Carter arrived. (ECF No. 76, at 8.) Carter was seated in the office and
was “non-disruptive,” but Lt. Knight rushed into the office, grabbed Carter’s handcuffs, yanked
them up, and slammed Carter to the floor. (ECF No. 76, at 8.) Defendant Knight and Sgt.
Nelson continued to apply pressure to Carter causing shortness of breath. (ECF No. 76, at 8-9.)
Warden Bailey then ordered that Carter “be taken to the ‘flap’ pod in”** housing unit 10. (ECF
No. 76, at 9.)
Before being taken to the flap pod, Carter was placed in a second set of shackles. (ECF
No. 76, at 9.) Carter claimed that he was “in extreme pain in [his] wrist, chest, and legs,” and
begged Warden Bailey and Defendant Sykes for medical assistance. (ECF No. 76, at 9.)
^ Lieutenant Stith, a correctional officer at GCC, is not a named defendant in this case.
A “flap” cell
the inmate cannot see
ECF No. 112-3 113.)
(ECF No. 76 1122; .yee
is a cell that has a “‘metal flap’ over the window of the cell door so that
out [of] the cell to correspond w[ith] anyone.” (ECF No. 76 ^ 22; see also
These cells are “used for disruptive inmates within [housing unit] 10.”
also ECF No. 112-3 K 12.)
3
Upon arriving in the flap pod, Carter's wrists were bleeding and swollen. (ECF No. 76,
at 10.) Carter begged for medical attention, but Warden Bailey told prison personnel not to give
Carter anything until he said so. (ECF No. 76, at 10.) In the following days, Carter also
developed an abnormal lump in his leg that caused him pain. (ECF No. 76, at 10.)
The flap cell had a flap over the window in the cell door to prevent the inmate from
communicating with others. (ECF No. 76, at 9.) The flap cell lacks many amenities, such as a
table, storage or electrical outlets. (ECF No. 76, at 9.) Additionally, Warden Bailey ordered that
the water system in the cell be deactivated. (ECF No. 76, at 11.)
Carter did not receive medical care until July 29, 2019, when Lt. Conyers heard Carter's
complaints, saw his swollen wrists, and immediately ordered that Carter be examined by a nurse.
(ECF No. 76, at 11.)
5.
Various Institutional Infractions and Convictions
On July 30, 2019, and thereafter, Carter was taken before Hearing Officer Lawrence for a
variety of institutional infractions. (ECF No. 76, at 11-13.) Defendant Lawrence denied Carter
appropriate process before convicting him of these infractions. (ECF No. 76, at 11-13.)
Defendant Davis of VDOC ICU, responded to some of Carter's appeals. (ECF No. 76, at
17.) Defendant Davis acted negligently and failed to adequately investigate Carter’s appeal.
(ECF No. 76, at 17.)
For a variety of the convictions, CO Burrows failed to provide Carter with a \\xitten
report describing the evidence relied upon for his institutional convictions. (ECF No. 76, at 21.)
4
B.
Summary of Carter’s Claims
Based on the foregoing allegations, Carter makes the following claims:
Claim One
Defendant Stith violated Carter’s First Amendment^ rights when she
retaliated against him by filling three false institutional charges against
him on July 16, 2019 and July 17, 2019.
Claim Two
Defendants Lawrence and Defendant Burrows denied Carter
due process
for the following institutional infractions: “for case No. GCC-2019-3 763
on July 30, 2019 and case No. GCC-20I9-3814,” (ECF No. 76, at 20) and
“No. GCC-2019-3763, GCC-2019-3932, and GCC-2019-3803 . ..,” (ECF
No. 76, at 21).
Claim Three
(a) On July 18, 2019, five John Doe correctional officers violated Carter’s
Eighth Amendment^ rights by using excessive force against Carter.
(b) Defendant Knight used excessive force against Carter on July 26,
2019.
Claim Four
(a) Defendant Sykes and Bailey were deliberately indifferent to Carter’s
serious medical needs.
(b) Defendant Bailey subjected Carter to conditions of confinement that
violated the Eighth Amendment.
Claim Five
The Commonwealth of Virginia is liable for the negligent actions of
Defendants Burrows and Davis.
Claim Six
Defendants Stith and Davis are liable for the state
tort of abuse of legal
proeess.
Carter demands monetary damages, declaratory relief, and injunctive relief By Memorandum
Opinion and Order entered on December 7, 2023, the Court dismissed without prejudice Claim
3
Congress shall make no law .. . abridging the freedom of speech .. . .” U.S. Const.
Amend. I.
6 «
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” U.S. Const, amend. VIII.
5
3(a), against the five John Doe correctional officers because Carter failed to timely serve them.
(ECFNos. 140, 141.)
Nurse Sykes has moved for summary judgment and provided Carter with appropriate
Rosebor 0^ noXicQ. (ECFNos. 105, 107.) Additionally, Defendants Stith, Knight, Bailey,
Lawrence, Davis, Burrows, and the Commonwealth (collectively, “the VDOC Defendants’") have
moved for summary judgment and provided Carter with Roseboro notice. (ECF Nos. Ill, 113.)
For the reasons articulated below, Defendant Sykes’s Motion for Summary Judgment (ECF
No. 105) will be GRANTED and the VDOC Defendants’ Motion for Summary Judgment (ECF
No. 111) will be GRANTED IN PART AND DENIED IN PART.
IL Summary Judgment Standard
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). The party seeking summary judgment bears the responsibility 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 dispositive
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 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)).
’’ Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).
6
In reviewing a summary judgment motion, the court ‘‘must draw all justifiable inferences
in favor of the nonmoving party.” United States v. Carolina Transformer Co., 978 F.2d 832, 835
(4th Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., All U.S. 242, 255 (1986)). However, a
mere scintilla of evidence will not preclude summary judgment. Anderson, All U.S. at 251
(citing Improvement Co. v. Munson, 81 U.S. 442, 448 (1872)). “[TJhere is a preliminary
question for the judge, not whether there is literally no evidence, but whether there is any upon
which a jury could properly proceed to find a verdict for the party . . . upon whom the onus of
proof is imposed.” Id. (quoting Munson, 81 U.S. at 448). Additionally, “Rule 56 does not
impose upon the district court a duty to sift through the record in search of evidence to support a
party’s opposition to summary judgment.” Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)
(quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n.7 (5th Cir. 1992)); see Fed. R. Civ.
P. 56(c)(3) (“The court need consider only the cited materials ... .”).
The VDOC Defendants ask the Court to dismiss Claims
One, Three (b). Four (a), and
Four (b) because Carter failed to exhaust his administrative remedies as required by 42 U.S.C.
§ 1997e(a). Because the exhaustion of administrative remedies is an affirmative defense, the
VDOC Defendants bear the burden of pleading and proving lack of exhaustion. Jones v. Bock,
549 U.S. 199,216(2007).
In support of her Motion for Summary Judgment, Defendant Sykes submitted: her
affidavit (ECF No. 106-1); and Carter’s medical records and pertinent grievance material (ECF
No. 106-2). In support of their Motion for Summary Judgment, the VDOC Defendants
submitted: (1) the affidavit of E. Witt, the Institutional Ombudsman at Greensville Correctional
Center (“GCC”), (ECF No. 112-1, at 1-11); (2) a copy of Operating Procedure 866.1-Offender
Grievance Procedure, (“Operating Procedure 866.1,” ECF No. 112-1, at 12-25); and, (3) a copy
7
of Carter’s grievance-related documents, (ECF No. 112-1, at 26-52). Additionally, the VDOC
Defendants submitted the affidavit of Defendant Davis, who is employed in the Inmate
Discipline Unit of the VDOC (ECF No. 112-2); and the affidavit of Warden Bailey (ECF
No. 112-3).
In response, Carter has offered a host of documents, including his own affidavits, which
the Court refers to by their CM/ECF designation. Additionally, the Court granted Carter’s
Motion to Compel discovery with respect to video footage and directed the VDOC Defendants to
provide a copy of the relevant video footage to the Court. (ECF No. 142.)^ Thereafter, the
VDOC Defendants provided to the Court a copy of the relevant video footage and a written
description of what the video portrays. The Court refers to this evidence by its corresponding
CM/ECF designation.
The Court notes that none of the video evidence is
of significant utility in resolving the
Motions for Summary Judgment. The VDOC provided a total of seven videos to the Court.
(ECF No. 173, at 2-4.) The first five videos relate to the alleged use of excessive force against
Carter’s person on July 18, 2019, that was the subject of Claim Three (a) against five John Doe
correctional officers. {Id. at 2-3.) As previously noted, Claim Three (a) was dismissed without
prejudice because Carter failed to timely serve the five John Doe correctional officers.
^ In a separate Memorandum Order entered contemporaneously with this Memorandum
Opinion and Order, the Court addresses a number of outstanding motions and requests filed by
Carter. The Court has not addressed Carter’s Motion for Sanctions. The Motion for Sanctions
pertains to the alleged existence of video evidence of Defendant Knight’s use of excessive force
against Carter, Claim Three (b). This Memorandum Opinion does not address the merits of
Claim Three (b).
8
The two remaining videos are relevant to Claim Three (b), wherein Carter contends
Lieutenant Knight used excessive force against his person in the Unit Manager’s Office on July
26, 2019. {Id. at 3-4.) The VDOC Defendants accurately explain:
The first video shows Plaintiff being taken from his pod before the incident with
Defendant Knight and the second video is the Plaintiff entering the [Restricted
Housing Unit (“RHU”)] pod after the Knight incident. There is no video footage
of the incident with Defendant Knight because Plaintiff was escorted to the Unit
Manager’s Office which is on the second floor. The second floor does not have
surveillance footage—there are no surveillance cameras in the stairwell or on the
route to the Unit Manager’s Office (or in the office itself). No handheld camera
was used since, unlike a cell extraction (where force is likely to be used), the VDOC
defendants were not envisioning the likelihood of an incident occurring. Therefore
the only footage ever available was the surveillance footage of the lower pod from
just before the incident and after the incident. (The incident occurred at
approximately 12:15 p.m.on July 26, 2019).
(ECFNo. 173, at 3.)
The most relevant video, labelled GRCC 1020 HU 10 2 Lower, depicts Carter being
escorted to his cell in the RHU immediately after the incident in the Unit Manager’s Office. (ECF
No. 167.) Although grainy, the video shows Carter walking without apparent difficulty and does
not depict any individual using excessive force against Carter’s person. {Id.) Lieutenant Knight
appears in the video. (ECF No. 173, at 4.) Nurse Sykes is in the rear of the group of individuals
shown, wearing blue scrubs, escorting Carter to his cell,. (ECF No. 167; ECF No. 172, at 8; ECF
No. 174, at 3-4.)
Of course, the facts offered by an affidavit or sworn declaration must be in the form of
admissible evidence. See Fed. R. Civ. P. 56(c)(4). The sworn statement “must be made
on
personal knowledge, set out facts that would be admissible in evidence, and show that the affiant
or declarant is competent to testify on the matters stated.” Id. At the conclusion of his Third
Amended Complaint, Carter includes the following verification:
9
I have read the foregoing complaint and hereby verify that the matters
alleged are true, except those matters alleged on information and belief, and, as to
those, I believe them to be true. I verify under penalty of perjury that the
foregoing is true and correct.
(ECF No. 76, at 27.) Carter’s verification is virtually identical to one that this Court previously
rejected in Hogge v. Stephens, No. 3:09CV582, 2011 WL 2161100, *2-3 (E.D. Va. June 1,
2011), and is substantially similar to one that the United States Court of Appeals for the Fourth
Circuit found to be lacking in Walker v. Tyler Cnty. Comm ’n, 11 F. App’x 270, 274 (4th Cir.
2001).^ As such, the Court must consider the contents of Carter’s Third Amended Complaint as
mere pleading allegations.” Hogge, 2011 WL 2161100, at *3 (quoting Walker, 11 F. App’x at
274). Consequently, the Third Amended Complaint fails to constitute admissible evidence.
United States v. White, 366 F.3d 291, 300 (4th Cir. 2004).
In light of the foregoing principles and submissions, the following facts are established
for the purposes of the pending Motions for Summar}-' Judgment. All permissible inferences are
drawn in favor of Carter.
^ Where a verification is made “upon information and belief,” it “is insufficient for
the purposes of opposing a motion for summary judgment because such verification avoids
the possibility of perjury.” Price v. Rochford, 947 F.2d 829, 832 (7th Cir. 1991); see also
Causey v. Balog, 162 F.3d 795, 803 n.4 (4th Cir. 1998) (citations omitted) (“Because [the
court] cannot assess whether [the plaintiff] had first-hand knowledge of [the alleged] facts or
whether he is competent to testify to them, [the court] cannot consider them in [its summary
judgment] review.”).
10
III. Relevant Facts
Carter was incarcerated at GCC from July 24, 2018 until August 16, 2019. (ECF
No. 112-3^3.)
A.
Facts Relevant to Carter^s Exhaustion of Remedies
1.
The Grievance Procedure
Offenders receive an orientation to the grievance procedure system when they arrive at a
VDOC facility. See Operating Procedure § 866.1.IV.A.4. Generally, most matters are grievable
including, as pertinent here:
a.
b.
c.
Actions of individual employees and/or offenders which affect the grievant
personally, including any denial of access to the grievance procedure
Reprisals against the grievant for filing a grievance or grievance appeal
{Id. § 866.1.IV.M.1.) However, inmates may not file grievances regarding “[djisciplinary
hearing decisions, penalties and/or procedural errors, which may be appealed in accordance with
Operating Procedure 861.1, Offender Discipline, Institutions!' {Id. at § 866.1.IV.M.2.a.)
Operating Procedure § 866.1 requires that, before submitting a formal grievance, the
inmate must demonstrate that he or she has made a good faith effort to resolve the grievance
informally through the institutional procedures available to secure institutional services or
resolve complaints. See id. at § 866.1.V.A. Generally, a good faith effort requires the inmate to
submit an informal complaint form. See id. at § 866.1.V.A.1-2.
“The original Regular Grievance (no photocopies or carbon copies) should be submitted
by the offender through the facility mail system to the Facility Unit Head’s Office for processing
by the Institutional Ombudsman/Grievance Coordinator.” See id. at § 866.1.VI.A.2.b. The
offender must attach to the regular grievance a copy of the informal complaint or other
11
documentation demonstrating their attempt to informally resolve the issue. Id. at
§ 866.1.VI.A.2.a. Additionally, “[i]f 15 calendar days have expired from the date the Informal
Complaint was logged without the offender receiving a response, the offender may submit a
Grievance on the issue and attach the Informal Complaint receipt as documentation of the
attempt to resolve the issue informally.” Id. at § 866.1.V.A.3. A formal grievance must be filed
within thirty days from the date of the incident or occurrence, or the discovery of the incident or
occurrence, except in instances beyond the offender’s control. Id. at § 866.1.VI.A. 1.
a.
Grievance Intake Procedure
Prior to review of the substance of a grievance, prison officials conduct an “intake'
review of the grievance to assure that it meets the published criteria for acceptance. Id. at
§ 866.1.VLB. For example, as pertinent here, “[o]nly one issue per grievance form will be
addressed. The offender is to write the issue in the
space provided on the Regular Grievance,
preferably in ink.” Id. at § 866.1.VI.A.2.a. A grievance meeting the criteria for acceptance is
logged in on the day it is received, and a “Grievance Receipt” is issued to the inmate within two
days. Id. at § 866.1 .VI.B.3. If the grievance does not meet the criteria for acceptance, prison
officials complete the “Intake” section of the grievance and return the grievance to the inmate
within two working days. Id. at § 866.1.VI.B.4. If the inmate desires a review of the intake
decision, he or she must send the grievance form to the Regional Ombudsman within five
calendar days of receipt. Id. at § 866.1.VLB.5. “If a Regular Grievance does not meet the
criteria for acceptance and review by the Regional Ombudsman does not result in intake into the
grievance process, the issue must be resubmitted in accordance with the criteria for acceptance.
Id. at § 866.1 .IV.O(b). Finally, “[t]he exhaustion of remedies requirement will be met only when
12
the Regular Grievance has been accepted into the grievance process and appealed through the
highest eligible level without satisfactory resolution of the issue.” Id.
b.
Grievance Appeals
Up to three levels of review exist for a regular grievance. Id. at § 866.1. VI.C. The
Facility Unit Head of the facility in which the offender is confined is responsible for Level I
review. See id. at § 866.1. VI.C.l. If the offender is dissatisfied with the determination at Level
L he or she may appeal the decision to Level II, which is conducted by the Regional
Administrator, the Health Services Director, the Superintendent for Education, or the Chief of
Operations for Offender Management Services. See id at § 866.1.VI.C.2. The Level II response
informs the offender whether he or she “qualifies for” an appeal to Level III. Id. at
§ 866.1.VI.C.2.g.
2.
Facts Pertaining to Carter^s Efforts at Exhaustion for Claim One
a.
Grievance Material Possibly Related to First False Charge
Carter filed two informal complaints on July 26, 2019. In the first informal complaint.
Carter stated, “On 4-16-19, Counselor Stith gave me a charge for eating popcorn along with
another inmate, but the other inmate wasn’t charged with a 111 for stealing.” (ECF No. 112-1, at
26.)^*^ Carter suggested that Stith filed this charge in retaliation for Carter “not being at her
liking during [his] annual” review. (ECF No. 112-1, at 26.) Counsel Stith responded on July 31,
2019; “Yes, a charge was writing for you coming into my office .... You reached in my
10
Carter states that “[tjhe grievances and complaints that I dated ‘4-16-19 4pm-5pm’ and
‘4-18-19 12:30’ . .. were a mistaken date as to the incident date, and was meant to be ‘7-16-19’
and‘7-18-19.’” (ECF No. 121-7 If 11.)
13
popcorn bag got popcorn out and started to put in your mouth. That is why the charge was
written.
?rll
(ECFNo. 112-1, at 26.)
Thereafter, on August 15, 2019, Carter filed a regular grievance regarding Counselor
Stith concerning this incident, which Carter stated took place “4-16-19: 4pm-5pm.” (ECF No.
112-1, at 27.) Carter explicitly stated, “I am not grieving the disciplinary offense . . ..” (ECF
No. 112-1, at 27.) Rather, he stated he was grieving the fact that during his annual review.
Counselor Stith said “she wasn’t of my liking.” (ECF No. 112-1, at 27 (some quotation marks
omitted).) Carter asserted that “Counselor M. Stith needs to be disciplined for her personal
vendetta against me as my behavior log will show and abusing her authority by giving me a
charge afterwards. So Fm grieving her comments and not the disciplinary charge for eating
popcorn.” (ECF No. 112-1, at 27.) The grievance was rejected at intake because, based on the
April date of the offense Carter gave, it was not filed within thirty days of the date the incident
allegedly occurred. (ECF No. 112-1, at 28.) Carter did not file an appeal of that decision or
indicate that he had written the incorrect date on
b.
his original grievance.
Grievance Material Possibly Related to the Second
False Charge
In his second informal complaint filed on July 26, 2019, Carter stated:
On 4-18-19, Counselor M. Stith told the Unit Manager Springs to take me to the
hole without any paperwork being filed at 12:30. There was a 129 charge that
Springs didn’t approve due to insufficient reasoning. I was extracted by force . . .
without any reason for strike force to restrain me other than Counselor M. Stith
using “friendships” to have what she wanted ... .”
II
Mr. Carter’s ire about being charged for stealing—and later taking any other person’s
property—for grabbing and eating popcorn out of another person’s bag seems understandable.
Nonetheless, Mr. Carter’s frustration does not provide license to break or disregard other prison
rules.
14
(ECFNo. 112-1, at 29.)^^ Unit Manager Spring responded: “After review, the 129 infraction
was not processed, and it was rewritten as a 212 infraction.” (ECF No. 112-1, at 29.)
In a grievance dated August 9, 2019, Carter stated, in pertinent part:
On 4-18-19,1 was extracted by force w/o any reason charge being approved
to do so. I was extracted by force at 12:30 p.m. on 4-18-19. There was no charge
even written and approved to so and the paperwork will show. . . . There was no
charge written until 2:37 p.m. by Counselor M. Stith and it wasn’t approved until
It was
3:20 p.m., so why was force used 3 hours prior to any offense report?
because Counselor M. Stith has a personal vendetta against me and used
“friendships” to get [Officer-in-Charge] to approve bogus charges .. ..”
(ECF No. 112-1, at 30.) The grievance was rejected at intake because, again based on the April
date Carter listed, it was not filed within thirty days of the date the incident allegedly occurred.
(ECF No. 112-1, at 31.) Carter did not file an appeal of that intake decision or indicate to prison
officials that he had written the incorrect date on
3.
his grievance material.
Facts Pertaining to Carter’s Efforts at Exhaustion of Claim Three (b)
On July 29, 2019, Carter submitted three informal complaints. In the first informal
complaint filed on that date, Carter stated that Lt. Knight had applied his handcuffs too tightly
and that he was “slammed to the floor for nothing.” (ECF No. 112-1, at 39.) Lt. Knight
responded, “I did not grab[] this offender or slam[] him to the floor. This is false information.
(ECFNo. 112-1, at 39.)
In a grievance dated August 2, 2019, Carter complained that he “was taken to the floor
with force” by Lt. Knight. (ECF No. 112-1, at 43.) After an investigation, on August 22, 2019,
Assistant Warden Putney responded that, inter alia, “You were not slammed to the floor.. . .
you were charged with a code 218/298B, Attempting to commit/Fighting with any Person.
12
Once again, Carter states he made a mistake on his grievance material that the incident
took place in April of 2019, but that they actually occurred in July of 2019. (ECF No. 121-7
nil.)
15
(ECF No. 112-1, at 41.) Prison personnel sent their response to Carter on August 23, 2019.
(ECFNo. 112-1, at 40.)
Carter contends that he received that response on August 28, 2019, six days after the
decision was made, and filed his appeal to the Regional Ombudsman that same day. (ECF No.
4-1, at 40;^^ ECF No. 121-7 | 9.) Nevertheless, the Regional Ombudsman rejected the appeal as
untimely and stated: “Your appeal receipted in this office on September 6, 2019, exceeded the
five (5)-calendar day time limit. It was sent to you on August 23, 2019.” (ECF No. 112-1,
at 40.)
4.
Facts Pertaining to Carter^s Efforts at Exhaustion for Claim Four (a)
On July 29, 2019, Carter submitted a second informal complaint in which he complained
that he had cuts on his wrists, and his wrist were still swollen from restraints placed on him on
July 26, 2019. (ECF No. 112-1, at 33.) Carter further complained that Warden Bailey had told
Lt. Knight “to not let medical see” Carter. (ECF No. 112-1, at 33.) Nurse Sykes responded that
[d]ue to your aggressive behavior, you were assessed at the cell.... There were no visible
marks noted at that time [and] you had go[od] range of motion.” (ECF No. 112-1, at 33.)
In a regular grievance, dated August 2, 2019, Carter complained that he did not receive
proper medical attention from when he was restrained on July 26, 2019. (ECF No. 112-1, at 37.)
Carter asserted that he did not receive medical attention, because Warden Bailey instructed Lt.
Knight and his fellow officers not to provide medical attention. (ECF No. 112-1, at 37.) Carter
asserted that Nurse Sykes lied when she said she provided medical attention. (ECF No. 112-1, at
37.) On August 21, 2019, after an investigation, Assistant Warden Putney, responded to the
13
At one point. Carter states that he received the Level I response on August 29, 2019.
(ECF No. 4-1, at 40.)
16
grievance and deemed it unfounded. (ECF No. 112-1, at 35-36.) The response to the grievance
was sent to Carter on August 22, 2019. (ECF No. 112-1, at 34.)
Carter contends that he received that response on August 27, 2019, six days after the
decision was made, and filed his appeal to the Regional Ombudsman that same day. (ECF No.
4-1, at 37; ECF No. 121-7 ^ 9.) Nevertheless, the Regional Ombudsman rejected the appeal as
untimely and stated: “Your appeal receipted in this office on September 6, 2019, exceeded the
five (5)-calendar day time limit. It was sent to you on August 22, 2019.” (ECF No. 112-1,
at 34.)
5.
Facts Pertaining to Carter’s Efforts at Exhaustion for Claim 4(b)
In his third informal complaint submitted on July 29, 2019, Carter stated: ‘T was left in
my cell for 3 days without a mattress because Warden Bailey told the crew team not to give me
anything until he said so. I didn’t get a mattress until Lt. Conyers brought me one on 7-29-19.
(ECF No. 112-1, at 45.) Unit Manager Robinson responded to the informal complaint and
stated, “you never asked or said anything about a mattress. You were combative and aggressive,
reason for placement on lower 200 pod from lower 300 pod....” (ECF No. 112-1, at 45.)
Thereafter, on August 5, 2019, Carter submitted a regular grievance asserting:
[Issue One] I was restrained on 7-26-19 at 12:30 p.m. by Lt. Knight and Sgt.
Nelson for nothing. UM Robertson says I was combative as the charge states, but
the charge doesn’t state what I did combative, because I did nothing. [Issue Two]
Warden Bailey instructed the crew team, “not to give me anything, unless he said
so,” and he never did. I went 3 days without a mattress from 7-26-19-7-29-19. I
asked every C.O. that signed their log for rounds and never received one, until 729-19 when Lt. Conyers pulled me from my cell to use the phone. I wasn’t
combative from 7-26-19-7-29-19 so why wasn’t I given a “required” mattress?
This was cruel and unusual punishment to me by Greensville staff because of the
orders of Warden Bailey.
(ECF No. 112-1, at 46.) That same day, this grievance was rejected at intake by the Institutional
●resubmit with only one issue.” (ECF No. 112-
Ombudsman and marked, “More than one issue
17
I,at47.) Carter appealed the intake decision rather than resubmitting anything. (ECFNo. 1121, at 47.) On August 19, 2019, the Regional Ombudsman rejected the appeal and marked the
appeal, “[t]he intake decision is being returned to you because the 5-day time limit for review
has been exceeded.” (ECFNo. 112-1, at 47.)
B.
Facts Pertaining to the Alleged Denial of Adequate Medical Care
On July 26, 2019, Warden Bailey requested that Carter to be brought to the Unit
Manager’s Office to meet with him due to a phone call from his family about Carter’s medical
care.
(ECF No. 112-3
5.) Warden Bailey had requested that Carter come to this office because
he “cannot discuss an inmate’s personal business on the pod in front of other inmates.” (ECF
No. 112-3 ^ 5.) Nurse Sykes was present at that meeting, with Carter’s medical chart, to discuss
Carter’s family’s concerns. (ECF No. 112-3 ^ 5.) Unit Manager Robertson also was present.
(ECF No. 112-3 n 5, 6.) “There was no security staff present at the meeting.” (ECF No. 112-3
15.)
As per standard practice for an inmate like Carter, who was confined in the Restrictive
Housing Unit (“RHU”), Carter was restrained in handcuffs. (ECF No. 112-316-) Carter
became agitated when the staff refused to agree with him. (ECF No. 112-31 ^-) After Warden
Bailey finished talking to Carter, Carter refused to leave the Unit Manager’s Office. (ECF
No. 112-3 16.)
At that point. Unit Manager Robertson called for assistance via radio to remove
Carter from the office and to escort him back to his cell. Lt. Knight and Sgt. Nelson
responded to the call for assistance. As inmate Carter was being escorted out of the
office, he became combative and refused to walk. At that time, he had to be lowered
to the floor by Lt. Knight and Sgt. Nelson. Leg irons were placed on his left leg
and right leg to gain control over him.. . . Carter had to be removed from the office
and escorted to cell 208.
18
(ECF No. 112-3 ^ 6.) According to Warden Bailey, “[njeither Lt. Knight nor Sgt. Nelson used
any unnecessary force to lower Carter to the floor.
I was present and saw Lt. Knight attempt to
escort Carter out of the office. Lt. Knight did not yank Carter’s handcuffs or punch or strike
Carter at any time.” (ECF No. 112-3 | 7.) Warden Bailey asked Nurse Sykes “to follow Lt.
Knight and Sgt. Nelson as they escorted Carter to his cell to ensure that Carter was not injured
and to document her assessment accordingly.” (ECF No. 112-3 f 10.)
Carter swears that “Warden Bailey was physically present while I yelled for medical
treatment on July 26, 2019, the entire escort from [the Unit Manager’s] Office to cell 208 and
ordered me not to receive ‘anything’ including medical treatment in front of Sykes . ...” (ECF
No. 121-7 ^ 1.)'‘* Carter contends that Lt. Knight’s use of force “caused my wrist, hand, and leg
to swell, be cut[] by metal cuffs, and cause loss of blood circulation to my wrist, and deformity
in my leg (left).” (ECF No. 121-7^1.)
Carter contends that he “never committed any acts of aggression on July 26, 2019, towards
anyone.” (ECF No. 121-7,120.)’^ Nevertheless, Carter does not dispute that he refused to leave
14
Warden Bailey swears that he “did not accompany the group to the cell and continued
with [his] duties as Warden.. . . Inmate Carter did not request medical attention while in [his]
presence.” (ECF No. 112-3^ 10.) Warden Bailey further swears that he never interfered with or
impeded Carter’s access to health care. (ECF No. 112-3 f 27.) Nurse Sykes also swears that
Carter “did not beg for medical attention during the transfer, although he did curse and make
threats ....” (ECF No. 106-1114.) Warden Bailey also acknowledges that he “did instruct
staff not to give Carter any of his personal property until his disruptive behavior had subsided.”
(ECF No. 112-3 ^ 12.) Given these competing statements, for purposes of the Motions for
Summary Judgment, the Court assumes Warden Bailey accompanied Carter to his new cell and,
Carter yelled for medical care. Furthermore, given Carter’s use of quotation marks and Warden
Bailey’s sworn statements, the record reflects that Carter heard Warden Bailey instruct staff not
to give Carter “anything,” but did not hear Warden Bailey specifically instruct staff not to
provide Carter with medical care.
15
Conclusory statements that Carter was or was not “aggressive” are of little value in
assessing the propriety of summary judgment. See United States v. Roane, 378 F.3d 382, 400-01
(4th Cir. 2004) (internal quotation marks omitted) (citations omitted) (“[a]iry generalities.
19
the Unit Manager’s Office and this refusal required security personnel to transfer him to the RHU.
(ECFNo. 106-lfll2-14.)
Due to the security risk presented by [Carter’s] aggressive behavior, [Nurse Sykes]
conducted [her] medical assessment of [Carter] at his cell after the transport had been complete.
(ECF No. 106-1 115.)'^ Nurse Sykes contends that Carter’s “threatening and aggressive
behavior prevented further assessment at that time.” (ECFNo. 106-1^15.) Nurse Sykes
asserts that, on July 26, 2019:
No visible marks, scrapes, redness, or bruising on [Carter’s] hands or wrists
were present, he moved all extremities, and displayed good range of motion.
[Carter] did not complain about any injuries at the time, but he continued to act
aggressively. There was no indication of any need for additional medical attention.
[Nurse Sykes] informed [Carter] that he would be checked on again during the next
medication pass.
(ECFNo. 106-1 ^ 16.)
At the next scheduled medication pass on July 26, 2019, Nurse Sykes accompanied the
nurse for the distribution of medication at Carter’s
cell. (ECF No. 106-1117.)
[Carter] was standing at the door of his cell, continued to move all extremities, and
again no visible marks, scrapes, redness, or bruising were present on [Carter’s]
hands or wrists. [Carter] was provided and accepted medications at that time.
[Carter] made no complaints or requests for additional care and there was no
indication of any need for further medical attention at that time.
(ECFNo. 106-1 ^ 17.) Carter swears that.
1 did report my injuries from the July 26, 2019 use of force verbally to A. Sykes at
pill pass that evening to my left leg, wrists, and the severe pain I was in, but she
conclusory assertions and hearsay statements [do] not suffice to stave off summary judgment”).
Nevertheless, from the fact that Carter cursed and refused reasonable demands, the Court has no
difficulty in concluding that the record demonstrates that Carter was belligerent and that the
prison staff perceived Carter to be aggressive.
16
Carter swears that “Sykes never assessed me at my cell.” (ECF No. 120-2 ^ 1.)
Nevertheless, Carter does not dispute that Nurse Sykes accompanied him to his cell and was able
to observe his injuries or lack thereof
20
ignored me.... I did report my injuries from July 26, 2019 in a written request
form on August 2, 2019 and I was placed on sick call at GCC on August 3,
2019....
(ECFNo. 120-2^^2,3.)
Carter “was also seen by medical providers during medication passes on July 27
and 28. He made no complaints to medical personnel during that time and began refusing his
medications on July 27,2019. He did not make any sick call requests, or other requests for medical
attention, from July 26 through July 29.” (ECF No. 106-1 ^ 19.)''' Nurse Sykes again saw Carter
on July 29, 2019, and recommended 75 mg of Effexor XR and 600 mg of Advil. (ECF No. 106-1
^20.) Carter again refused medications. (ECF No. 106-1 ^ 20.)
On July 29, 2019, Carter filed an informal complaint wherein he alleged that “he had not
been treated for cuts and swelling on his wrists from the restraint done on July 26, 2019.” (ECF
No. 106-1 H 21.) On July 30, 2019, Nurse Sykes responded:
Due to your aggressive behavior, you were assessed at the cell. Use of force
incidents were made by Security. There were no visible marks noted at that time
& you had go[od] range of motion. You were told that medical would check on
you again during pill call. Medical has made rounds since 7/26/19 & you have not
17
On summary judgment the Court is “not required to assume the truth of testimony ‘so
replete with inconsistencies and improbabilities that a reasonable jury could not [base a favorable
finding on it].’” Sadi v. Chautauqua Cnty., NY, 36 F.4th 445, 457 (2d Cir. 2022) (alteration in
original) (quoting Jeffreys v. City of New York, 426 F.3d 549, 553-55 (2d Cir. 2005)). Carter
makes several statements that run afoul of this principle.
For example, Carter swears that, “I never intended to refuse my medication between July
26, through July 29, 2019, purposefully, I was in pain and could barely move to the door fast
enough to get the pills before the nurses would move to the next cell doing pill pass.” (ECF
No. 120-2 ^ 7.) Nevertheless, during this same time period Carter vaguely suggests that he was
“daily verbally reporting” his alleged injuries to someone. (ECF No. 120-213.) By his own
admission he was not reporting them to the nurse on pill call. In any event, it is difficult to
square Carter’s statements above with Carter’s own statement that he attended pill pass at his cell
door on July 26, 2019 and spoke to Nurse Sykes. Further, Carter offers no evidence to contradict
the evidence from Nurse Sykes reflecting that, from her observations, Carter had no visible
injuries and a good range of motion.
21
offered any complaint or submitted a sick call request to be seen. Also, you began
refusing your medication on 7/27/19.
(ECFNo. 106-2, at 19.)
On August 2, 2019, Carter submitted an offender request wherein he requested a medical
appointment for “a lump in [his] leg” which he had had since the “strike force” had restrained
him on July 18,2019. (ECFNo. 120-1,at 1.) Carter complained that the lump had gotten worse
since he was restrained on July 26, 2019 and deprived of a mattress. (ECF No. 120-1, at 1.) On
August 3, 2019, medical staff responded that Carter would be scheduled for sick call. (ECF No.
120-1, at 1.) Staff also noted, “you failed to mention this concern about a bone sticking out
during pill pass today, you only discussed wanting a tetanus shot.” (ECF No. 120-1, at 1.)
On August 7, 2019, Carter was seen by Nurse Practitioner (“NP”) Alexander. (ECF
No. 123-1, at 1-2.) Carter complained to NP Alexander that he had been experiencing right
hand pain for two months and admitted to having swelling in his left leg since an altercation two
weeks ago. (ECF No. 123-1
10.) NP Alexander noted Carter was in no acute distress, had no
bruises, and had a full range of motion. (ECF No. 123-1 110.) Because Carter complained of
hand and leg pain, his right hand and left leg were x-rayed. (ECF No. 123-1 ^ 10.) Both x-rays
were normal. (ECF No. 123-1 ^ 10.)
C.
Facts Pertaining to Carter^s Institutional Charges in July and August of 2019
The record reflects that of all of the charges Carter received in July and August of 2019,
while confined at GCC were never served or “were dismissed, or were overturned on appeal.”
.18
(ECF No. 112-2 ^ 4.) Specifically, the charges and dispositions were as follows:
18
The Court has bolded those charges that Carter claims are false and initiated by
Defendant Stith (Claim One). The Court has underlined those charges for which Carter claims
Defendants Lawrence and Burrows denied him due process.
22
a.
b.
c.
July 1, 2019 - GCC-2019-3462 - Offense Code 137B Indecent Exposure.
Carter was found not guilty for this charge. He received no penalty.
July 14, 2019 - GCC-2019-4557 - Offense Code 129 Gathering around or
approaching any person in a threatening manner. This charge was not
processed, and Carter received no penalty.
July 16. 2019 - GCC 2019-3763 - Offense Code lllB Stealing state or
any personas property. While Carter was mitiallv found guilty of this
charge, VDOC records reflect that the charge was overturned on
appeal because Carter’s appeal paperwork was mistakenly given to
another inmate with a similar name. Carter was not punished with any
fine or any loss of good time credits for this charge. [This is the popcorn
charge.]
d.
e.
f.
July 17, 2019 - GCC 2019-3782 - Offense Code 222 Vulgar/insolent
language directed toward an employee. This charge was dismissed because
of a failure to follow policy. Carter received no penalty.
July 17,2019 - GCC-2019-3801 - Offense Code 129 - Gathering around
or approaching any person in a threatening manner. This charge
shows PENDING PENALTY OFFER, suggesting that it was approved
by the OIC and subsequently was never served. Carter received no
penalty.
July 18. 2019 - GCC-2Q19-3814 - Offense Code 102 - Possession or Use of
a Weapon. This charge was ORDERED REHEARD on appeal because it
was found at the first level of appeal that the Hearing Officer had failed to
read a document into the record. Carter received no penalty.
g-
July 24.2019 - GCC - 2019-3932 - Offense Code 122D - Refusal to Submit
to a Drug Test. Carter was initially found guilty of this charge, but the
charge was overturned on appeal for policy violations and because the
reporting officer no longer worked for VDOC. Carter was not punished
with any fine or any loss of good time credits for this charge.
h.
July 17,2019 - GCC 2019-3803 - Offense Code 212 - Threatening bodily
harm to any person verbally, by gesture, by action ... This charge was
overturned because it appears that Carter’s appeal paperwork may
have been accidentally given to another inmate with a similar name.
Carter received no penalty.
1.
July 17, 2019 - GCC-2019-4556 - Offense Code 129 Gathering around or
approaching any person in a threatening manner. This charge was not
processed, and Carter received no penalty.
23
J-
July 18, 2019 - GCC-2019-5121 - Offense Code 102 Possession/Use of a
Weapon. This charge was meant to be the rehearing for Case Number GCC2019-3814 (4f), but the IHO dismissed the charge because the serving
officer wrote conflicting dates of service on the DOR and Penalty Offer.
Carter received no penalty.^^^^
k.
July 26, 2019 - GCC-2019-3983 - Offense Code 218/298B - Attempting to
commit/fighting with any person. This charge was dismissed by facility
staff because Carter’s actions did not meet the criteria for the charge issued.
Carter received no penalty.
(ECF No. 112-2^ 4. (omission in original).)
Following this spate of charges, in August of 2019, the Institutional Classification
Authority (“ICA”) conducted a review of Carter’s status. (ECF No. 137-1 ^ 4.) During the
review.
an inmate is assessed in a number of categories to determine an appropriate security
level, appropriate good time earning level and whether the inmate meets the criteria
for a transfer to another facility. The ICA reviews relevant records pertaining to the
inmate and makes recommendations for a final decision regarding the inmate’s
status and assignments. The criteria that the ICA may consider when reviewing an
inmate includes, but is not limited to[,] disciplinary infractions, employment,
programming opportunities, attitude, etc.
The ICA does not base its recommendation solely on an inmate’s
disciplinary infractions. While they are important and are a criteria that is
considered, the ICA also considers a host of other criteria and factors, including the
inmate’s institutional adjustment, behavior and adjustment to his housing
assignment. All of these factors, and others, affect the irsk that an inmate may pose
to a facility.
(ECF No. 137-1 114,5.)
Here, there exists undisputed evidence that Carter repeatedly refused to obey the lawful
orders of correctional officials at GCC.
20
Specifically, the video footage of Carter’s cell
The VDOC Defendants fail to define the abbreviations “IHO” and “DOR.
20
In July of 2019, Carter had a total of eleven disciplinary charges placed against him.
(ECF No. 137-1 16.) As noted above, because the disciplinary infractions were not processed or
were eventually reversed, Carter did not suffer any institutional penalty. GCC’s numerous
procedural errors in processing these infractions should be of concern to prison officials. Here,
24
extraction, on July 18, 2019, shows, for an extended period of time, that Carter obdurately
refused officers’ reasonable requests to allow himself to be handcuffed so he could be moved.
These actions by Carter required prison officials to summon a team of correctional officers to
extract Carter from his cell. Additionally, on July 26, 2019, Carter refused to leave the Unit
Manager’s Office when asked to do so. This once again required GCC officials to summon
additional staff to make Carter comply with that command.
In August of 2019, the ICA approved Carter’s transfer from GCC a Level 2/3 facility to
River North Correctional Center (“RNCC”), a Level 4 facility. (ECF No. 137-1
8-10.)
Carter was transferred to RNCC on August 16,2019. (ECF No. 137-1 f 8.) Carter remained at
RNCC until January 24, 2020, at which time he was transferred to Red Onion State Prison.
21
(ECF No. 137-11 8.) “Red Onion State Prison is a Level 5/6 facility.” (ECF No. 137-1 ^ 8.)
“Carter was transferred to RNCC based on his continued
disruptive behavior, his inability
to follow the facility’s rules and regulations and his inability to adjust to a lower security level
facility at GCC.” (ECF No. 137-1 ^ 10.) “Central Classification Services (“CCS”) had the final
authority for approving Carter’s transfer.” (ECF No. 137-1 ^ 9.)
IV, Analysis
The Court will address Defendants’ arguments pertaining to exhaustion, prior to
addressing any arguments that Carter’s individual claims lack merit. For the reasons set forth
however, these mistakes cannot save his claim from Summary Judgment because his claims fail
on other grounds.
21
While Mr. Carter claims that his transfer to Red Onion State Prison was due to the
institutional charges at GCC, it appears that the transfer, in fact, was precipitated by an incident
in December 2019, at his Level 4 facility, RNCC. In December 2019, Mr. Carter, while
intoxicated, attacked his cellmate and “bit off’ approximately an inch and a half section of his
cellmate’s nose. (ECF No. 4-1, at 20-21.)
25
below, Claim One and Four (b) will be DISMISSED for lack of exhaustion. Material disputes of
fact exist that preclude the dismissal of Claims Three (b) and Claim Four (a) for lack of
exhaustion. However, Claim 4(a) cannot survive a merits analysis. Claims Two, Five, and Six
also falter on the merits. Therefore, Claims Two, Four (a), Five, and Six will be DISMISSED
for lack of merit and only Claim Three (b) survives the Motions for Summary Judgment.
A.
Exhaustion Analysis
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. Chiirner, 532 U.S. 731, 738 (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). The Supreme Court has instructed that
section 1997e(a) “requires proper exhaustion.” Id. at 93. The Supreme Court explained that
[pjroper exhaustion demands compliance with an agency’s deadlines and other critical
procedural rules,” id. at 90, “so that the agency addresses the issues on the merits.” Id. (quoting
Pozo V. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). The applicable prison rules “define
the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). Exhaustion is
mandatory, and courts lack discretion to waive the exhaustion requirement. Porter v. Niissle,
534 U.S. 516, 524 (2002).
26
Nevertheless “an administrative remedy is not considered to have been available if a
prisoner, through no fault of [their] own, was prevented from availing [themselves] of it.
Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (citing Aquilar-Avellaveda v. Terrell, 478
F.3d 1223, 1225 (10th Cir. 2007); Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006)). The
Supreme Court has explained that an administrative remedy is considered unavailable when: (1)
it operates as a simple dead end—with officers unable or consistently unwilling to provide any
relief to aggrieved inmates”; (2) it is “so opaque that it becomes, practically speaking, incapable
of use”; or (3) “prison administrators thwart inmates from taking advantage of a grievance
process through machination, misrepresentation, or intimidation.
Ross V. Blake, 578 U.S. 632,
643^4 (2016). The Supreme Court obser\^ed that, “[g]iven prisons’ own incentives to maintain
functioning remedial processes, we expect that these circumstances will not often arise.” Id. at
643 (citing Woodford, 548 U.S. at 102).
“When an administrative process is susceptible of multiple reasonable interpretations,
Congress has determined that the inmate should err on the side of exhaustion.” Id. at 644. The
United States Court of Appeals for the Seventh Circuit quoted the foregoing language to
conclude that, when “refiling” an initially defective grievance, “was available to [an inmate, the
inmate’s] failure to exhaust is not excusable.” Haywood v. Baylor, 804 F. App’x 401, 403 (7th
Cir. 2020) (citing Kaba, 458 F.3d at 684); accord Wall v. Stevens, No. 7:16-CV-00373, 2019
WL 1371858, at *4 (W.D. Va. Mar. 26, 2019), aff’d, 775 F. App’x 761 (4th Cir. 2019); see
Woodford, 548 U.S. at 90 (emphasis added) (internal quotation marks omitted) (emphasizing that
proper exhaustion entails “using all steps that the agency holds ouf’); Wilson v. Jamrog, No. 982281, 2000 WL 145455, at *2 (6th Cir. Feb. 1,2000) (observing that inmate could have
exhausted his claims “simply by following the direction[s]”).
27
1.
Carter Failed to Exhaust His Administrative Remedies for Claim One
In Claim One, Carter claims Defendant Stith retaliated against him by filing false
charges against him after he filed a verbal complaint in order to have someone else conduct his
annual review. Carter, however, failed to properly exhaust his administrative remedies with
respect to this claim. Although he filed two regular grievances related to Defendant Stith’s
alleged retaliation, the face of the grievances indicated that were file outside of the thirty-day
filing period and thus were rejected at intake. See Edwards v. Scarberry, No. 7:18CV373, 2019
WL 3797374, at *3 (W.D. Va. Aug. 12, 2019) (citations omitted) (observing that the “untimely
filing of a grievance is not ‘proper exhaustion’ of available administrative remedies under
§ 1997e(a)”). Carter did not refile. Because Carter never submitted a grievance that was
accepted in the grievance process as timely and proper, he has failed to exhaust his
administrative remedies with respect to Claim One.
Carter contends that because his complaint related to false and retaliatory disciplinary
charges his claim is not grievable. Carter is wrong. “[AJlthough disciplinary convictions
themselves are not grievable and have a separate appeal process, a claim that a particular officer
brought a disciplinary charge to retaliate against an inmate for engaging in protected activity is a
grievable issue.” Ofori v. Fleming, No. 7:20-CV-00345, 2022 WL 791645, at *5 (W.D. Va.
Mar. 11, 2022) (citation omitted).^^ Accordingly, Claim One will be DISMISSED because
Carter failed to properly exhaust his administrative remedies.
22
In the present action, unlike Ofori, Carter has not presented evidence that prison
officials told him he could not grieve his retaliation claims because they pertained to disciplinary
infractions.
28
2.
A Material Dispute of Fact Precludes Dismissal of Claims Three (b)
and Four (a) for Lack of Exhaustion
Lieutenant Knight contends that Claim Three (b), concerning his alleged use of
excessive force against Carter, on July 26, 2019, should be dismissed for lack of exhaustion.
Specifically, Lieutenant Knight contends that Carter failed to timely appeal the denial of his
regular grievance to Level II, during the five-day appeal period. (ECF No. 112, at 12.)
Similarly, Warden Bailey contends that Claim Four (a)^^ against him, should be dismissed
because Carter failed to timely appeal the denial of his regular grievance to Level II during the
five-day appeal period. (ECF No. 112, at 13.) Lieutenant Knight and Warden Bailey anchor
their claim on untimeliness on the date prison officials sent the Level I response to Carter and the
date prison officials received Carter’s Level II appeal.
24
Carter, however, has sworn that, in both
instances he filed his appeal on the same day that he received his Level I response. (ECF
No. 121-7, at 4; ECF No. 4-1, at 37, 40.)
23
Claim Four (a) does not survive on the merits. See infra Section IV.B.2.
24
The Supreme Court of Virginia has rejected the VDOC’s interpretation of the relevant
procedures. See AlBritton v. Commonwealth, 853 S.E.2d 512, 517 (Va. 2021) (citation omitted)
(rejecting the VDOC’s argument that “grievance appeals are ‘submitted for purposes of
exhaustion when they are received by VDOC, not when they are sent'''). Specifically, the
Supreme Court of Virginia stated:
We believe that the most reasonable interpretation of these provisions is that
an inmate may timely send a Level II grievance appeal by placing it in the prison
mailing system and that by doing so, the inmate has “appealed]” the grievance “to
the next level.” The Commonwealth’s contrary interpretation — that the inmate
can only meet the five-day deadline when the DOC date-stamps its receipt of the
grievance on or before day five -— exposes the inmate to a risk over which he has
no control. Under this interpretation, an inmate could deposit his grievance in the
prison mailing system on day one and still be forever barred from pursuing the
claim further in either administrative or judicial forums if the grievance was, for
whatever reason, received on day six.
Id. (alteration in original) (citation omitted).
29
Prisoners are only required to exhaust administrative remedies that are available. “[A]n
administrative remedy is not considered to have been available if a prisoner, through no fault of
[their] own, was prevented from availing [themselves] of it.” Moore, 517 F.3d at 725 (citing
Aquilar-Avellaveda, 478 F.3d at 1225; Kaba, 458 F.3d at 684). That appears to be the case here.
According to Carter, an appeal to Level II was not available, because even though he filed his
appeals on the very same day he received his Level I response, the appeals were deemed to be
untimely. It is possible, from this record, that Carter did not receive the decision until near or
after the appeal period had passed. Accordingly, the Court denies the Motion for Summary
Judgment on the ground that Carter failed to exhaust his administrative remedies for Claims
Three (b) and Four (a).
3.
Carter Failed to Exhaust His Administrative Remedies for
Claim Four fb)
In Claim Four (b). Carter asserts that Warden Bailey subjected him to unconstitutional
conditions of confinement following the July 26, 2019 encounter in the Unit Manager’s Office.
Although Carter submitted a regular grievance related to this issue, it was rejected at intake
because he also complained about his alleged unnecessary restraint in the Unit Manager’s Office.
(ECF No. 112-1, at 46^7.) Carter was directed to “resubmit with only one issue.” (ECF No.
112-1, at 47.)
Because Carter failed to do so, his complaint was not addressed on its merits as is
required for proper exhaustion. See Nelson v. Ellis, No. 3:20CV803, 2023 WL 2226790, at *8
(E.D. Va. Feb. 24, 2023) (concluding inmate did not properly exhaust administrative remedies
when he failed to resubmit a grievance limited to a single issue); see also Woodford, 548 U.S. at
90 (emphasis in original) (explaining that an inmate must use administrative remedies "'properly
30
(so that the agency addresses the issues on the merits).”). Accordingly, Claim Four (b) will be
DISMISSED for lack of exhaustion.
B.
Merits Analysis
1.
Claim Two
In Claim Two, Carter maintains that he was denied due process in relation to a variety of
institutional charges. The VDOC Defendants assert that, ultimately, none of the charges resulted
in a penalty, so Carter never suffered the deprivation of a liberty interest. Carter responds that
these infractions resulted in an increased security level, a less favorable good-time level, and a
transfer to a higher security prison. As explained below, because Carter fails to demonstrate he
has protected liberty interest in his security level, his prospective good-time level, or remaining
at a particular prison, his claim must be dismissed.
The Due Process Clause applies when government action deprives an individual of a
legitimate liberty or property interest. See Bd. ofRegents ofState Colls, v. Roth, 408 U.S. 564,
569-70 (1972). Thus, the first step in analyzing a procedural due process claim is to identify
whether the alleged conduct affects a protected liberty or property interest. Beverati v. Smith,
120 F.3d 500, 502 (4th Cir. 1997) (citations omitted). A liberty interest may arise from the
Constitution itself, or from state laws and policies. See Wilkinson v. Austin, 545 U.S. 209, 22021 (2005).
’The Due Process Clause standing alone confers no liberty interest in freedom from state
action taken ‘within the sentence imposed.
5 99
Sandin v. Conner, 515 U.S. 472, 480 (1995)
(quoting Hewitt v. Helms, 459 U.S. 460, 468 (1983)). “[T]he Constitution itself does not give rise
to a liberty interest in avoiding transfer to more adverse conditions of confinement.
Wilkinson,
545 U.S. at 221 (citing Meachum v. Fano, All U.S. 215, 225 (1976)); PaoU v. Rally, 812 F.2d
31
1489, 1492 (4th Cir. 1987) (citations omitted) (“A transfer of a prisoner from one institution to
another, of course, does not implicate a liberty interest in the absence of a state statute or
regulation that creates such an interest.”). Further, “Virginia prisoners have no liberty interest in
any classification or good conduct time earning rate derived from the United States
Constitution.” Henderson v. Clarke, No. 1:21CV 672 (TSE/JFA), 2022 WL 16922818, at *7
(E.D. Va. Nov. 14, 2022) (citing Wolff v. McDonnell, 418 U.S. 539, 557 (1974); Mills v. Holmes,
95 F. Supp. 3d 924, 931-34 (E.D. Va. 2015)). Accordingly, Carter fails to demonstrate that the
Constitution confers a liberty interest in remaining in a particular prison, retaining a security
classification, or retaining a good-time level classification.
To establish a state-created liberty interest, Carter “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.
Piiranda v. Johnson, No. 3:08CV687, 2009 WL
3175629, at *4 (E.D. Va. Sept. 30, 2009) (alteration in original) (quoting Sandin, 515 U.S. at
484, 487). If Carter makes this threshold showing, he must then identify the state regulatory or
statutory language that creates a protected liberty interest in remaining in a particular prison.
retaining a particular security classification, or good time-level classification. See id. Here, the
Court proceeds directly to the second step of the analysis because Carter fails to demonstrate that
any state statutory or regulatory language creates a liberty interest in remaining a particular
prison, security classification, or good-time level classification. “Virginia inmates have no .. .
state-created right to be classified at a particular security level or to be housed in a specific penal
institution.” Carter v. Stith, No. 1:21CV307 (LO/IDD), 2022 WL 6167352, at *3 (E.D. Va. Oct.
6, 2022) iciXmg McKune v. Lile, 536 U.S. 24, 39 (2002); Meachum v. Fano, 427 U.S. 215, 225
32
(1976); Waters v. Bass, 304 F. Supp. 2d 802, 805 (E.D. Va. 2004); Blackv. Willis,
No. 2;02cv370, 2003 WL 23194275, at *4 (E.D. Va. Jan. 21, 2003)).
Further, “it is well established that Virginia inmates do not enjoy a protected liberty
interest in the rate at which they earn either Earned Sentence Credits or Good Conduct
Allowances.” Sydnor v. Mahon, No. 3:10CV780-HEFI, 2012 WL 604039, at *4 (E.D. Va. Feb.
23, 2012) (citing Sazynski v. Clarke, No. 2:10CV156, 2011 WL 586973, at *3 (E.D. Va. Feb. 8,
2011)); see also Piiranda, 2009 WL 3175629, at * 5; Martin v. Johnson, No. 7:08-cv-00249,
2008 WL 957869, at *4 (W.D. Va. Apr. 8, 2008); DeBlasio v. Johnson, 128 F. Supp. 2d 315, 330
(E.D. Va. 2000); Gaskins v. Johnson, 443 F. Supp. 2d 800, 805 (E.D. Va. 2006)). Accordingly,
Claim Two will be DISMISSED.
2.
Claim Four (a)
To survive a motion for summary judgment on an Eighth Amendment claim, a plaintiff
must demonstrate: “(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 v. Seiter, 501
U.S. 294, 298 (1991)). 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.3d at 167. A medical need is “serious” if it
“has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would easily recognize the
necessity for a doctors attention.” Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008) (quoting
Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir. 1999)); see Webb v. Hamidullah, 281 F.
App’x 159, 165 (4th Cir. 2008) (citing Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980)).
Furthermore, where, as here, an Eighth Amendment claim is predicated on a delay in the
33
provision of medical care, the plaintiff must allege facts that suggest ‘'that the delay resulted in
substantial harm.” Webb, 281 F. App’x 166-67 & n.l3 (quoting Sealockv. Colorado, 218 F.3d
1205, 1210 (10th Cir. 2000)). “[T]he substantial harm requirement may be satisfied by lifelong
Garrett v. Stratman, 254 F.3d 946, 950 (10th
handicap, permanent loss, or considerable pain.
Cir. 2001) (citation omitted).
The subjective prong of an Eighth Amendment claim requires the plaintiff to demonstrate
that 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 for summary judgment under the deliberate indifference standard, a plaintiff
“must show 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.’” Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004) (quoting
Rich V. Bruce, 129 F.3d 336, 340 n.2 (4th Cir. 1997)).
34
In Claim Four (a), Carter contends that he was denied medical care after Lieutenant
Knight used excessive force against him in the Unit Manager’s Office on July 26, 2019.
Although Carter swears that he demanded medical care, a fact disputed by Warden Bailey and
Nurse Sykes, Carter fails to adduce evidence that he had a serious medical need for medical
attention. Neither Warden Bailey nor Nurse Sykes observed any conduct that indicated Carter
required medical attention. According to Nurse Sykes, after Carter’s removal from the Unit
Manager’s Office:
No visible marks, scrapes, redness, or bruising on [Carter’s] hands or wrists
were present, he moved all extremities, and displayed good range of motion.
[Carter] did not complain about any injuries at the time, but he continued to act
aggressively. There was no indication of any need for additional medical attention.
(ECF No. 106-1 ^ 16.) Accordingly, especially given his inconsistent “factual” allegations to the
contrary, Carter fails to demonstrate that he had a serious medical need for medical attention
immediately following his removal from the Unit Manager’s Office.
Furthermore, Carter fails to demonstrate that either Warden Bailey or Nurse Sykes acted
with deliberate indifference immediately after Carter was removed from the Unit Manager’s
Office. Warden Bailey instructed Nurse Sykes to accompany Carter to his cell to assure Carter
did not require any medical attention. Even though Carter may have yelled that he required
medical attention, absent plain evidence that he did. Warden Bailey was entitled to rely upon the
assessment of Nurse Sykes. Iko v. Shreve, 535 F.3d 225, 242 (4th Cir. 2008) (“If a prisoner is
under the care of medical experts . .., a nonmedical prison official will generally be justified in
believing that the prisoner is in capable hands.” (quoting Spruill v. Gillis, 372 F.3d 218, 236 (3d
Cir. 2004))). As noted above, Nurse Sykes’s assessment of Carter reflected that he did not have
visible injuries, limited movement, or required medical attention. Warden Bailey had no further
35
interaction with Carter in the immediate aftermath
of Carter’s removal from the Unit Manager’s
Office. Therefore, Claim Four (a) against Warden Bailey will be DISMISSED.
Nurse Sykes, however, continued to interact with Carter that evening and over the next
several days. On the evening of July 26, 2019, Nurse Sykes accompanied the nurse on duty to
Carter’s cell during pill call. According to Carter,at this time, he “did report [his] injuries
from the July 26, 2019 use of force verbally to A. Sykes at pill pass that evening to [his] left leg,
wrists, and the severe pain [he] was in, but she ignored [him].” (ECF No. 120-2 ^ 2.)
Nevertheless, at this time, “[Carter] was standing at the door of his cell, continued to move all
extremities, and again no visible marks, scrapes, redness, or bruising were present on [Carter’s]
hands or wrists.
(ECF No. 106-1
17.) Furthermore, the Nurse Practitioner’s examination of
Carter on August 7, 2019, indicated that Carter was in no acute distress, had no bruises, and had
a full range of motion. (ECF No. 123-1 ^ 10.) X-rays of Carter’s hand and leg did not reveal
any injury. (ECF No. 123-110.)
Based on this record. Carter fails to demonstrate he had serious need for medical
attention for any injuries allegedly sustained in his removal from the Unit Manager’s Office.
Moreover, at most. Nurse Sykes delayed Carter’s access to further medical care from other
individuals. Carter fails to demonstrate that this
delay resulted in any substantial harm to his
person. See Webb, 281 F. App’x 166-67 & n.l3 (quoting Sealock, 218 F.3d at 1210).
Accordingly, Carter fails to satisfy the objective component for this Eighth Amendment claim.
Further, Carter fails to demonstrate that, subjectively. Nurse Sykes acted with deliberate
indifference. The record bears out Nurse Sykes’s observations that Carter did not require
25
Nurse Sykes swears that Carter made no complaints or requests for care. (ECF
No. 106-1 f 17.)
36
medical treatment in the wake of his removal from the
Unit Manager’s Office. Therefore,
because Carter fails to demonstrate deliberate indifference. Claim Four (a) against Nurse Sykes
will be DISMISSED.
3.
Claim Five
In Claim Five, Carter contends that the Commonwealth of Virginia is liable for the
negligence of Defendants Burrows and Davis. The United States Supreme Court has said that.
pursuant to the Eleventh Amendment, “an unconsenting State is immune from suits brought in
federal courts by her own citizens as well as by citizens of another State.” PortAuth. Trans-
Hudson Corp. V. Feeney, 495 U.S. 299, 304 (1990) (quoting Pennhurst State School and
Hospital V. Halderman, 465 U.S. 89, 100 (1984)). Virginia has not waived sovereign immunity
for claims of negligence. See Patterson v. City of Danville, 875 S.E.2d 65, 75 (Va. 2022).
26
Accordingly, Claim Five will be DISMISSED.
26
In his Affidavit in Opposition to the VDOC Defendants’ Motion for Summary
Judgment, Carter appears to attempt to amend the relevant defendants for this claim. (ECF
No. 121-7 ^ 28.) Carter cannot amend his claim in this manner. “[I]t is axiomatic that [a]
complaint may not be amended by the briefs in opposition to a motion to dismiss.” Mylan Labs,
Inc. V. Akzo, N..V, 770 F. Supp. 1053, 1068 (D. Md. 1991) (quoting Car Carriers, Inc. v. Ford
Motor Co.,lA5 F.2d 1101, 1107 (7th Cir. 1984)).
37
4.
Claim Six
In Claim Six, Carter contends that Defendants Stith and Davis are liable for the state tort
of abuse of legal process. The Supreme Court of Virginia has described abuse of process as:
the misuse of a legal process to accomplish some purpose not warranted or
commanded by the writ, a malicious perversion of a regularly issued civil or
criminal process for a purpose and to obtain a result not lawfully warranted or
properly attainable thereby. It is the misuse of the power of the court, an act done
in the name of the court and under its authority for the purpose ofperpetrating an
injustice. Abuse of process, as distinguished from that of malicious prosecution,
involves the malicious misuse or perversion of the process, after its issuance, for
an end not lawfully warranted by it.
Eubank v. Thomas, 861 S.E.2d 397, 403 (Va. 2021) (first and second emphasis added) (citation
omitted). “To prevail in a cause of action for abuse of process, a plaintiff must plead and prove:
‘(1) the existence of an ulterior purpose; and (2) an act in the use of the process not proper in the
regular prosecution of the proceedings.’” Id. (quoting Donohoe Const. Co. v. Mount Vernon
Assocs., 369 S.E.2d 857, 862 (Va. 1988)). “The term ‘process’ in this context means specific
legal procedures enforced by judicial authority.” Id. “[AJbuse of process claims arise when
litigants misuse individual legal procedures, such as discovery, subpoenas, and attachment, after
a lawsuit has been filed.” Id. (citing Advanced Constr. Corp. v. Pilecki, 901 A.2d 189, 197
(Me. 2006)).
Here, Carter’s claim of abuse of process involves allegedly improper prison disciplinary
proceedings. These are not legal procedures enforced by a judicial authority covered by this tort.
See id.; Ubl v. Kachoiiroff 937 F. Supp. 2d 765, 770 (E.D. Va. 2013) (alteration in original)
(“[T]he process that is envisioned in the cause of action for abuse of process is one of a legal
nature and is one that might arise out of some kind of writ.” (quoting Atkins v. Ritchie, No. LC116, 1980 WL 143159, at *2 (Va. Cir. Ct. Nov. 6, 1980))); Neil v. Wells Fargo Bank, No. 1:13-
38
CV-0644, 2015 WL 4459090, at *4 (E.D. Va. July 20, 2015) (“‘Process,’ as used in this sense, is
synonymous with ‘legal process’ or ‘judicial process,’ and refers to a compulsory issuance by a
court.
(citing Ross v. Peck Iron & Metal Co., 264 F.2d 262, 267-68 (4th Cir.1959); Donohoe,
369 S.E.2d at 862; Glidewell v. Murray-Lacy & Co., 98 S.E. 665, 670 (Va. 1919))), affd, 686 F.
App’x 213 (4th Cir. 2017); Cent. Radio Co., Inc. v. Warwick Builders, LLC, CL20-8580, 2021
WL 8775677, at *2 (Va. Cir. Ct. June 28, 2021) (“In the absence of a suit to enforce, as in this
case, where a claimant has not served the other party with a complaint and summons, the mere
filing of a mechanic’s lien alone does not a constitute “process.”). Further, Carter fails to
demonstrate either Defendant Stith or Davis committed
an “act in the use of the process not
proper in the regular prosecution of the proceedings.” Eubank, 861 S.E.2d at 403 (citation
omitted). Accordingly, Claim Six will be DISMISSED.
V. Conclusion
Nurse Sykes’s Motion for Summary Judgment (ECF No. 105) will be GRANTED.
The VDOC Defendants’ Motion for Summary Judgment (ECF No. Ill) will be GRANTED IN
PART AND DENIED IN PART. Claims One, Two, Four (a), Four (b). Five, and Six will
be DISMISSED.
Carter has filed a request for injunctive relief related to Claim Two. (ECF No. 146.)
Carter’s asserts that he is entitled to a transfer, a change in his security level, and a change in his
good time earning level. This assertion lacks merit for the reasons stated above in conjunction
39
with the dismissal of Claim Two. Accordingly, Carter's request for injunctive relief, (ECF No.
146), will be DENIED.
An appropriate Order will accompany this Memorandum Opinion.
Date: 02/07/2024
Richmond, Virginia
40
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