Rivera v. Virginia Department Of Corrections et al

Filing 49

OPINION. Signed by Judge James P. Jones on 7/13/2016. (slt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
DENIS RIVERA,
Plaintiff,
v.
VIRGINIA DEPARTMENT OF
CORRECTIONS, ET AL.,
Defendants.

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Case No. 7:15CV00156
OPINION
By: James P. Jones
United States District Judge

Denis Rivera, Pro Se Plaintiff.
The plaintiff, Denis Rivera, a Virginia inmate proceeding pro se, recently
filed an Amended Complaint under 42 U.S.C. § 1983, alleging that classification
policies at Red Onion State Prison are unconstitutional.

The defendants are

currently scheduled to file any Motion for Summary Judgment in response to the
Amended Complaint by mid-July 2016. Now Rivera has filed motions to add
defendants and motions seeking interlocutory injunctive relief. After review of the
record, I will allow the addition of two defendants, but I will summarily deny
Rivera’s motions for injunctive relief.
Two of Rivera’s submissions (ECF Nos. 46 and 48) indicate his intention to
include the following Red Onion State Prison (“Red Onion”) officials as
defendants in this action: J. King and A. B. Duncan. He alleges that King and

Duncan were counselors during times relevant to his claims and served on the
teams that reviewed and made recommendations about his classification status. I
liberally construe these submissions as motions seeking to amend to add these
individuals as defendants to the claims alleged in the Amended Complaint, and I
will grant the motions.
Rivera also submits two pleadings seeking interlocutory injunctive relief
(ECF Nos. 45 and 47). First, in a “Motion for Court Order,” Rivera complains
about a Red Onion policy that only building supervisors can provide an inmate
with an informal complaint form; an informal complaint is a required first step in
the grievance procedures. He alleges that certain officials have been refusing to
provide him with such forms in retaliation for his lawsuit and other complaints he
has previously filed. (Mot. 2, ECF No. 45.) Rivera also alleges: that on June 21,
2016, an officer closed the tray slot before Rivera could get his finger out of the
way, injuring the finger; that in the last few weeks, Rivera has been unable to
obtain regular grievance forms and emergency grievance forms; that officers
denied him showers on four days at the end of June 2016, despite his medical need
for regular showers; and that officers refused to provide him with cleaning
materials to clean his toilet on June 27, 2016. (Id. at 3.) Rivera also refers to
numerous exhibits as further evidence of distressing events about which he has
allegedly been unable to file grievance forms, including the delay of a requested
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haircut and the lack of emergency grievance forms. (Id. at 2-3.) Rivera asks the
court to order officials to provide him with informal complaint and grievance
forms on which he can file complaints concerning these matters.
In his second motion, titled “Prohibitory/Permanent Injunction,” Rivera
references his “Motion for Court Order” and other exhibits as a basis for the
requested relief. Specifically, he asks the court to order the defendants to “stop
retaliating against Plaintiff for filing lawsuits and the violations that are being
committed against him.” (Mot. 1, ECF No. 47.)
I conclude that Rivera has not alleged facts warranting the interlocutory
injunctive relief he seeks. The party seeking a preliminary injunction must make a
clear showing “that he is likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the balance of equities
tips in his favor, and that an injunction is in the public interest.”1 Winter v. Natural
Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
Rivera’s factual allegations simply do not meet these four required elements.
Most importantly, he presents no facts showing that any of the adverse actions of
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Rivera requests a temporary restraining order and a preliminary injunction.
Temporary restraining orders are issued only rarely, when the movant proves that he will
suffer injury if relief is not granted before the adverse party could be notified and have
opportunity to respond. See Fed. R. Civ. P. 65(b). Such an order would only last until
such time as a hearing on a preliminary injunction could be arranged. As it is clear from
the outset that Rivera is not entitled to a preliminary injunction, I find no basis upon
which to grant him a temporary restraining order.
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which he complains were motivated in any respect by his pending or prior
lawsuits. Merely conclusory allegations of retaliation are not actionable under
§ 1983. Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994). Therefore, Rivera does not
show any likelihood of success on a retaliation claim or any imminent, irreparable
harm he is likely to suffer in the absence of court intervention.
Rivera’s allegations also do not meet the three other requirements for
interlocutory relief. He does not describe any irreparable harm he is likely to
suffer from merely being denied administrative remedy forms, from not receiving
cleaning materials or a haircut at the desired time, or from missing showers on
occasion. The fact that his finger was injured in the tray slot on one occasion is not
evidence that the harm suffered was irreparable or that he faces imminent danger
of a similar occurrence in the future that could be averted through a court order.
Finally, I cannot find that the balance of the equities or the public interest
weigh in Rivera’s favor so as to warrant the court’s interference in prison officials’
discretionary administrative decisions regarding such day-to-day living activities
as distribution of administrative remedy forms or cleaning or barbering supplies.
Rivera is reminded that § 1983 authorizes civil actions for violations of
constitutionally protected rights. His continued litigation over every minor adverse
event he encounters in prison will squander valuable court time and resources and

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slow the resolution of any potentially meritorious claims that he or other inmates
may be attempting to present.
For the stated reasons, I conclude that Rivera has not made the necessary,
four-factor showing that his situation warrants interlocutory relief. Therefore, I
will deny his motions seeking such relief.
A separate Order will be entered herewith.
DATED: July 13, 2016
/s/ James P. Jones
United States District Judge

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