Canada v. Gilbert et al
OPINION. Signed by Judge James P. Jones on 10/18/2016. (tvt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
KELVIN A. CANADA,
CHRISTOPHER GILBERT, ET AL.,
Case No. 7:16CV00190
By: James P. Jones
United States District Judge
Kelvin A. Canada, Pro Se Plaintiff.
The plaintiff, Kelvin A. Canada, an inmate proceeding pro se, filed this
prisoner civil rights action under 42 U.S.C. § 1983. Canada alleges that Virginia
prison officials misused body cavity searches and strip cell conditions and
destroyed his personal property items in retaliation for a petition he wrote to
administrators about prison conditions. He has also submitted a Supplemental
Complaint alleging imposition of an excessive fine. After review of Canada’s
submissions, I conclude that this action must be summarily dismissed.
Canada was incarcerated for several years at Red Onion State Prison (“Red
Onion”) in Pound, Virginia, where the constitutional violations alleged in his
Complaint allegedly arose. 1 He separates his allegations into four claims.
Denial of Recreation and Showers.
On January 7, 2016, Officers S. Patrick and N. Stephens came to Canada’s
cell for routine shower procedures that required Canada to place his shower items
in the tray box and submit to a visual body cavity search. After Canada did so,
Patrick ordered: “Turn around, face the back wall and spread your buttocks open
again.” (Compl. 7, ECF No. 1.) Canada said, “I’ve already spread my buttocks
once.” (Id.) Canada claims that Stephens then shut the tray box and denied
Canada a shower. When Canada asked why, Stephens allegedly replied, “Because
you shouldn’t of put my name in your damn Petition.”2 (Id. at 8.)
Canada alleges that he complained to Sargent Hall about missing his shower
and was told that he had been denied a shower for not spreading his buttocks.
Canada allegedly told Hall, “That’s a lie, I complied with the strip-search and
spread my buttocks. I’ve been at Red Onion for 17-years on segregation. I know
what the (strip search) protocol is.” (Id. at 9.) Hall allegedly placed Canada on
In June 2016, officials transferred Canada to a prison facility in Rhode Island.
Canada submits a copy of a “Supplemental Petition on Abuse in Virginia
Prisons” that he allegedly drafted, dated December 1, 2015. (Supp. Pet. 1, ECF No. 14.)
Among many other things, this document complains that officers in B3-Pod of Red
Onion routinely deny inmates recreation and showers for not following procedures or
being disruptive. The document indicates that a prior “Petition,” dated August 26, 2013,
was sent to Virginia state and federal legislators, the governor, and three Virginia
Department of Corrections (“VDOC”) administrators, and states Canada’s intention to
send the supplemental petition to the same individuals. (Id. at 22.)
“strip-cell for threatening staff,” which Canada denied doing. Canada claims that
Hall then said, “In my eyes and ears you did when you wrote that (petition).”
(Id. at 10.)
Investigator Jesse Wagner interviewed Canada on January 29 about his
grievances against officers at Red Onion. Wagner told Canada, “The policy of Red
Onion says prisoners must comply with the (strip-search) procedure” in order to
leave their cells, and “[i]f an officer tells you to spread your buttocks, and it’s not
to his approval you must do it again. If you don’t comply, you w[on’t] come out
[of] your cell for (rec) or (shower).” (Id. at 14, 15.) Canada claims that Wagner
misstated VDOC policy.
Canada also claims that on February 4, he asked Sargent Jordan Fleming
why he had denied recreation and showers to Inmates Rivera and Davis. Fleming
allegedly stated, “[Y]ou ain’t going to (rec) or (shower) either for speaking up for
[them] and for writing that petition. . . . As long as I’m taking up the (rec) [and]
(shower) list you will never come out [of] that cell for nothing.” (Id. at 19.)
On February 9, 2016, Officers J. Lovell and J.T. Fleming allegedly denied
Canada a shower “for the same typical bogus reason that was used on Jan. 7,
2016.” (Id. at 20.) Canada alleges that various officers denied him showers or
recreation in this manner on February 12, 13, 23, and 28, and March 12, 2016.
Each time, the officer(s) allegedly cited Canada’s failure to comply with some
Canada contends that officers retaliated against him using false accusations
of failure to comply with search procedures to deny him showers and recreation.
He also claims that the strip search procedures at Red Onion were dehumanizing
and degrading, in violation of the Fourth Amendment.
Retaliatory Placement in Strip Cell.
In his complaint, Canada also alleges that on January 7, 2016, Sargent Hall
placed Canada on strip cell for eight and a half hours “with nothing but a pair of
‘boxers’ on,” after accusing him of stating, “I’m going to fuck your staff up.”
(Id. at 31.) Canada allegedly denies making any such threat. While on strip cell,
Canada was denied sheets, blankets, a mattress, soap, toilet paper, socks, and
toothpaste, and could not wash his hands before eating his lunch. He alleges that
he had to exercise to keep warm.
Canada contends that Hall placed him on strip cell to retaliate against him
for writing the petition. Canada also argues that strip cell was cruel and unusual
punishment for a minor infraction, such as a verbal threat, and that Hall’s actions
denied him due process and violated VDOC policy.
Retaliatory Destruction of Property.
Canada alleges that on February 9, 2016, an officer refused him a shower,
stating that he had not complied with strip search procedures. Canada complained,
and Sargent Hall allegedly placed him on strip cell “for no reason.” (Id. at 38.) In
frustration, Canada threw feces at the officers, who then placed him in restraints in
a nearby cell. Canada insists that when he left his cell, his personal property was
packed up in bags on his bottom bunk. When he was released from ambulatory
restraints, however, the property inventory sheet indicated that “2 bags of Canada’s
property had feces at the bottom of them and had to be red-bagged in a ‘biohazard’ bag.” (Id. at 41.) The items in these bags allegedly included five family
photo albums, a battery charger, eight rechargeable batteries, a prayer rug, a pair of
Reebok shower shoes, a medical therapy ball, and six books. Canada values the
property at $60,878. (Id. at 49.)
Canada denies that his property bags could have been exposed to the feces
that landed inside his tray box and in front of his cell door. He contends that the
officers purposely placed his property on the floor in retaliation so they could
falsely claim that it had been contaminated by the feces.
In his Supplemental Complaint (ECF No. 18), Canada asserts that according
to video evidence of the February 9, 2016, incident when Canada threw feces at
officers, no feces landed on Officer Tyler Bray; yet Canada was ordered to pay
restitution for destroying Bray’s state-issued uniform, utility belt, and boots.
Canada admits that he soiled two other officers’ uniforms, belts, and boots with
feces, and that he was properly found guilty of a disciplinary charge related to that
conduct. As a result of the disciplinary conviction, the hearing officer ordered
Canada to pay $332.00 in restitution for the cost of three officers’ clothing items,
and Canada has done so.3 His claim here is that he must be reimbursed $184.00
for the portion of the restitution he paid for Bray’s clothing items, because this
amount constituted an excessive fine in light of the video footage.
Canada alleges that, in person or in complaint forms, he has communicated
the issues in each of his claims to administrative officials, including Defendants
Clarke, Robinson, Barksdale, Tate, Hamilton, Gallihar, Gilbert, and Ponton, who
have failed to take corrective action.4
Canada contends that the alleged
constitutional violations have caused him emotional distress, mental anguish,
insomnia, and anxiety, as well as physical discomforts from the chilled strip cell
Canada states that criminal charges brought against him related to the February
9, 2016, incident have been dismissed. The disciplinary hearing officer did not view the
video footage, but it was preserved as part of the criminal investigation, and Canada
viewed it in that context.
In addition to these administrative officials, Canada names as defendants the
following Red Onion officers: J. Lovell, F. Calabro, Sgt. Johnny Hall, and Investigator
and from not having his therapy ball.
He seeks compensatory and punitive
A. Standard of Review.
The court is required to dismiss any action or claim filed by a prisoner
against a governmental entity or officer if the court determines the action or claim
is “frivolous, malicious, or fails to state a claim upon which relief may be granted.”
28 U.S.C. § 1915A(b)(1). An inmate’s complaint may be summarily dismissed
under this section if it fails to allege “enough facts to state a claim to relief that is
plausible on its face.” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In determining whether the
complaint states a claim, a court must view the factual allegations in the light most
favorable to the plaintiff, but “need not accept as true unwarranted inferences,
Canada’s Complaint also demanded injunctive relief to end the practice of strip
searches and strip cell placement at Red Onion. His claims for injunctive relief were
rendered moot by his transfer away from Red Onion, however, and must be summarily
dismissed. See Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (finding prisoner’s
claims for injunctive and declaratory relief as rendered moot by his transfer). On this
ground, I previously denied Canada’s separate motion seeking interlocutory injunctive
unreasonable conclusions, or arguments.” Giarrantano, 521 F.3d at 302 (internal
B. Retaliation Claims.
Claims of retaliation by prison inmates are generally treated with skepticism
because “[e]very act of discipline by prison officials is by definition ‘retaliatory’ in
the sense that it responds directly to prisoner misconduct.” Cochran v. Morris, 73
F.3d 1310, 1317 (4th Cir. 1996).
Thus, an inmate must present more than
conclusory allegations of retaliation. Adams v. Rice, 40 F.3d 72, 74 (4th Cir.
He must allege facts showing that his exercise of a constitutionally
protected right was a substantial or motivating factor to the alleged retaliatory
action. Wagner v. Wheeler, 13 F.3d 86, 90-91 (4th Cir. 1993). Mere “temporal
proximity” between the inmate’s protected activity and the official’s allegedly
retaliatory action “is simply too slender a reed on which to rest” a §1983 retaliation
claim. Id. at 91.
In addition to showing causation, an inmate alleging retaliation must also
state facts indicating that “that the conduct complained of adversely affected his
constitutional rights.” Daye v. Rubenstein, 417 F. App’x 317, 319 (4th Cir. 2011)
(unpublished) (citing ACLU v. Wicomico Cty., 999 F.2d 780, 785 (4th Cir. 1993)).
That a defendant’s conduct caused a mere inconvenience is not sufficient to satisfy
this element. Id.
Canada’s Supplemental Petition is essentially a prison grievance. Prisoners
do not have a constitutional right of access to a grievance process. Adams, 40 F.3d
at 75. Thus, Canada’s written expression of dissatisfaction about prison conditions
did not represent a constitutionally protected activity. Moreover, officers allegedly
mentioned Canada’s petition in relation to only one incident on January 7, 2016,
when he did not receive a scheduled shower. That day, Canada admits talking
back to the officers when they asked him to redo a portion of the strip search
procedure, and officers cited this noncompliant act as the basis for refusing Canada
a shower. Inmates clearly do not have a constitutional right not to comply with
prison security procedures and officers’ orders related to those procedures. For
these reasons, Canada’s allegations do not support a finding that his exercise of a
constitutional right caused officers to refuse him showers or recreation. Most
importantly, even if Canada could prove that his exercise of a constitutional right
motivated the officers’ actions in refusing him a shower or a recreation period, I
conclude that such deprivations are merely an inconvenience and not an adverse
action geared to chill Canada’s constitutional exercise.
Therefore, I will
summarily dismiss Canada’s first retaliation claim.
Canada also fails to state a retaliation claim concerning the use of strip cell
status on January 7, 2016. He alleges that Sargent Hall placed him in such status
for threatening staff. Canada also alleges, however, that Hall justified the strip cell
order by stating that Canada was possibly concealing contraband in his cell. This
motive for Hall’s action, unrelated to the exercise of a constitutional right, is
supported by Canada’s hesitance to comply with the order to redo the strip search
procedure. Because Canada fails to show that Hall’s imposition of strip cell status
was substantially motivated by any exercise of constitutional rights, I will
summarily dismiss Canada’s second retaliation claim.
In his third retaliation claim, Canada alleges that officers soiled his property
to retaliate against him for throwing feces on February 9, 2016. Canada’s conduct
on that occasion cannot be characterized as exercise of a constitutionally protected
right. Accordingly, I will dismiss this retaliation claim as frivolous.
C. Fourth Amendment Claim.
As stated, Canada complains that the visual strip search procedure he
underwent every time he left his cell at Red Onion was degrading and humiliating,
in violation of his Fourth Amendment rights. He contends that during his twentythree years in prison, he “has never been accused, suspected, or caught ever
concealing anything in his ‘anal-cavity’ so there is no probable-cause or
reasonableness for [him] to have been subjected to” the visual body cavity searches
at Red Onion. (Compl. 29, ECF No. 1.) I find no merit to this claim.
The Fourth Amendment guards against unreasonable searches and seizures.
U.S. Const. amend. IV. While prisoners retain limited Fourth Amendment rights,
their interests must be balanced against the interests of state officials in
maintaining safe and secure prisons. Bell v. Wolfish, 441 U.S. 520, 557-60 (1979)
(rejecting Fourth Amendment claim that prison officials must have probable cause
to lawfully require visual body cavity search of detainee after contact visits). It is
well established that “correctional officials must be permitted to devise reasonable
search policies to detect and deter the possession of contraband in their facilities.”
Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 132 S. Ct. 1510, 1517
(2012) (upholding constitutionality of “close visual inspection while undressed”
for pretrial detainees, because procedure was reasonably related to legitimate
security interest in detecting and deterring possession of contraband in detention
facility). Thus, a prison regulation or policy that impinges on an inmate’s Fourth
Amendment right “is valid if it is reasonably related to legitimate penological
interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). In the Fourth Amendment
setting, this reasonableness inquiry considers “the scope of the particular intrusion,
the manner in which it is conducted, the justification for initiating it, and the place
in which it is conducted.” Bell, 441 U.S. at 559.
Under this standard, this court has upheld as constitutionally reasonable the
Red Onion procedures for visual body cavity searches each time a segregation
inmate leaves his cell. See, e.g., Douglas v. Johnson, No. 7:11-CV-00468, 2013
WL 1123849, at *7 (W.D. Va. Mar. 18, 2013) (finding procedure reasonable to
prevent high security inmate from possessing contraband) (citing Rickman v.
Avaniti, 854 F.2d 327 (9th Cir. 1988) (approving strip searches each time a
prisoner in administrative segregation left his cell)); DePaola v. Ray, No.
7:12CV00139, 2013 WL 4451236, at *11 (W.D. Va. July 22, 2013), report and
recommendation adopted as modified, No. 7:12-CV-00139, 2013 WL 4453422
(W.D. Va. Aug. 16, 2013) (rejecting Fourth Amendment challenge to Red Onion
policy requiring visual body cavity search for inmate to leave or reenter cell). For
the reasons stated in DePaola, 2013 WL 4451236, at *11-13, I find that the Red
Onion visual body cavity search procedure serves a legitimate prison security
function, while limiting the degree of intrusiveness on the inmate’s privacy.
Particularly for a long-term segregation inmate like Canada, who admits to
hoarding and throwing feces at multiple officers, any degradation or
dehumanization he may feel during a visual cavity search procedure is outweighed
by the obvious security interests furthered by that procedure.
For the stated
reasons, I will summarily dismiss Canada’s Fourth Amendment claims.
D. Eighth Amendment Claim.
Canada claims strip cell status for eight and a half hours constituted cruel
and unusual punishment, in violation of the Eighth Amendment, which “protects
inmates from inhumane treatment and conditions while imprisoned.” Williams v.
Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). This claim lacks merit.
“[T]he Constitution does not mandate comfortable prisons,” however, and
conditions that are “restrictive and even harsh . . . are part of the penalty that
criminal offenders pay for their offenses against society.” Rhodes v. Chapman,
452 U.S. 337, 347, 349 (1981). It is well established that “only the unnecessary
and wanton infliction of pain implicates the Eighth Amendment.” See Wilson v.
Seiter, 501 U.S. 294, 297 (1991) (internal quotation marks and citations omitted).
To sustain an unconstitutional conditions claim, a prisoner must show that: (1)
objectively, the deprivation was sufficiently serious, in that the challenged, official
acts caused denial of “the minimal civilized measure of life’s necessities”; and (2)
subjectively, the defendant prison officials acted with “deliberate indifference to
inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal
quotation marks omitted).
The prisoner must show “significant physical or
emotional harm, or a grave risk of such harm,” resulting from the challenged
conditions. Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995).
Canada does not state facts showing that he suffered any Eighth Amendment
violation while temporarily subject to strip cell conditions. Canada alleges a
deprivation of his personal property items in his cell. He does not allege that he
was deprived of any necessity for life, such as food, shelter, or medical care. He
also does not describe any serious mental or physical injury resulting from these
challenged conditions. 6 I will summarily dismiss Canada’s Eighth Amendment
E. Deprivation of Property Claim.
Although I have rejected Canada’s claims that officers destroyed his
property in retaliation for his exercise of constitutional rights, I liberally construe
his claim as also asserting the wrongful deprivation of that property without due
process. The claim has no merit, however.
“Because the protections of the Due Process Clause are not triggered by the
‘mere failure to take reasonable care,’ negligent deprivations are not actionable
under § 1983.” Lovelace v. Lee, 472 F.3d 174, 202 (4th Cir. 2006) (quoting Pink v.
Lester, 52 F.3d 73, 75 (4th Cir. 1995); see also Daniels v. Williams, 474 U.S. 327,
328 (1986) (“[T]he Due Process Clause is simply not implicated by a negligent act
of an official causing unintended loss of or injury to life, liberty, or property.”).
Thus, to the extent that prison officials’ negligent or inadvertent mishandling of
Canada also contends that during his term in strip cell status, the defendants
denied him federally mandated due process protections and violated VDOC policies. I
must summarily dismiss these claims as well. The short-term deprivation of property
items during his strip cell period did not “impose atypical and significant hardship . . .
in relation to the ordinary incidents of prison life” so as to trigger a constitutionally
protected interest related to that status. Sandin v. Connor, 515 U.S. 472, 484 (1995).
Moreover, state officials’ failure to abide by state procedural regulations is not a federal
due process issue, and is, therefore, not actionable under § 1983. Riccio v. Cty of Fairfax,
907 F.2d 1459, 1469 (4th Cir. 1990) (“If state law grants more procedural rights than the
Constitution would otherwise require, a state’s failure to abide by that law is not a federal
due process issue.”).
Canada’s property bags while searching or cleaning the areas in and around his cell
led to contamination of his property, he has not suffered a constitutional
deprivation that triggered any federally required procedural protections.
Canada asserts that the officers purposely caused his property bags to be
destroyed by claiming they had been contaminated by feces or by purposely
placing them in a contaminated area.
Because this conclusory allegation is
unsupported by facts, I need not accept it as true. In any event, “an unauthorized
intentional deprivation of property by a state employee does not constitute a
violation of the procedural requirements of the Due Process Clause of the
Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is
available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984) (emphasis added). The
unauthorized acts that Canada alleges triggered his procedural due process rights
only if he had no meaningful postdeprivation remedy for the loss. However, he did
have such remedies. Canada possessed remedies under Virginia state law to seek
recovery of his property or reimbursement for the value of his items. See, e.g., Va.
Code § 8.01-195.3 (Virginia Tort Claims Act).
Thus, he cannot prevail in a
constitutional claim for the alleged loss of his property items. Hudson, 468 U.S. at
535-36 (regarding the availability and adequacy of state court remedies under
Virginia law for alleged destruction of property).
Finally, Canada has no § 1983 claim that the defendants violated VDOC
policies. “[I]t is well settled that violations of state law cannot provide the basis
for a due process claim” under § 1983. Weller v. Dep’t of Social Services, 901
F.2d 387, 392 (4th Cir. 1990) (citation omitted). Accordingly, I will summarily
dismiss Canada’s claims regarding the deprivation of his property items.
F. Excessive Fine Claim.
Canada’s last claim, raised in his Supplemental Complaint, alleges that the
restitution ordered was an excessive fine because the video did not show any feces
on Bray’s clothing items. This claim is frivolous.
First, Canada was not excessively fined.
The Eighth Amendment, applicable to the states through the Due
Process Clause of the Fourteenth Amendment, provides that
“[e]xcessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.” U.S. CONST. amend.
VIII. The Excessive Fines Clause limits the government’s “power to
extract payments, whether in cash or in kind, as punishment for some
offense.” United States v. Bajakajian, 524 U.S. 321, 328 (1998)
(internal quotations omitted). By its plain language, the Excessive
Fines Clause of the Eighth Amendment is violated only if the disputed
fees are both “fines” and “excessive.” See id. “A punitive forfeiture
violates the Excessive Fines Clause if it is grossly disproportional to
the gravity of a defendant’s offense.” Id. at 324.
Canada v. Ray, No. 7:08CV00219, 2010 WL 2179062, at *2 (W.D. Va. May 28,
2010). Under these principles, the restitution imposed on Canada for destruction
of state property was neither a fine, imposed as punishment, nor excessive in
proportion to his offense conduct and its consequences. Rather, the financial
obligation imposed on Canada was narrowly tailored to reimburse the state for the
items that the hearing officer found had been soiled because of Canada’s actions.
Second, Canada cannot use the video footage to reverse or alter the
disciplinary hearing outcome and restitution order on due process grounds. A
prison disciplinary decision satisfies “the requirements of due process . . . if some
evidence supports the decision. . . .” Superintendent, Mass. Corr. Inst., Walpole v.
Hill, 472 U.S. 445, 456 (1985). On the disciplinary report for February 9, 2016,
Sargent Hall stated that he had “witnessed Offender Canada throw feces out the
tray slot striking three officers and destroying three state issued shirts, three state
issued pants, one pair of state issued strike force boots, and three state-issued
utility belts.” (Supp. Compl. Ex. 1, at 1, ECF No. 18-1.) Thus, the hearing
officer’s finding that Canada’s feces had contaminated three officers’ clothing
items was supported by some evidence in the record, as Hill requires.
Accordingly, I will summarily dismiss Canada’s claim regarding the restitution
Supervisory Liability Claim.
Canada seeks to draw supervisory officials into his lawsuit, but states no
facts to support § 1983 claims against them. First, by merely failing to investigate
Canada’s complaints to his satisfaction, the supervisory defendants did not
contribute in any way to the alleged violations committed by their subordinates.
See Ashcroft, 556 U.S. at 676 (“[A] plaintiff must plead that each Governmentofficial defendant, through the official’s own individual actions, has violated the
Constitution.”). Even assuming that prison policy required an investigation, state
officers’ violations of prison policies do not equate with constitutional violations,
and thus are not actionable under § 1983. Weller, 901 F.2d at 392. In any event,
for the reasons stated, Canada fails to allege facts stating a § 1983 claim against
any of the defendants.
In conclusion, I must summarily dismiss Canada’s Complaint as
supplemented. See 28 U.S.C. § 1915A(b)(1). His factual allegations do not state
claims actionable under § 1983 or are factually or legally frivolous.
A separate Order will be entered herewith.
DATED: October 18, 2016
/s/ James P. Jones
United States District Judge
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