Rivera v. Mathena et al

Filing 62

OPINION & ORDER granting 21 Motion for Summary Judgment ; granting 35 Motion for Summary Judgment ; denying 39 Motion for Preliminary Injunction; denying 42 Motion for spoliation sanction; granting 53 Motion seeking to supplement count er affidavit; dismissing as moot 54 Motion requesting help; denying 55 Motion for Preliminary Injunction; granting 56 Motion seeking to supplement demand for interlocutory injunctive relief; stricken 59 Motion to Seal and is retained under seal; denying 61 Motion for Preliminary Injunction; denying 17 Motion for Preliminary Injunction. Signed by Judge James P. Jones on 8/14/2017. (tvt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION

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DENIS A. RIVERA,
Plaintiff,
v.
RANDALL C. MATHENA, ET AL.,
Defendants.

Case No. 7:16CV00346
OPINION AND ORDER
By: James P. Jones
United States District Judge

Denis A. Rivera, Pro Se Plaintiff; Mary Grace Miller and Richard Carson
Vorhis, Office of the Attorney General of Virginia, Richmond, Virginia, for
Defendants Mathena, Barksdale, Duncan, Clarke, Elam, Parr, Stacey Day,
Messer, Gilbert, Turner, Stephens, Williams, Dockery,1 Mullins, Christopher Deel,
Clinton Deel, and Ramey.
Denis A. Rivera, a Virginia inmate proceeding pro se, filed this civil
rights action under 42 U.S.C. § 1983, alleging that prison officials denied him
showers and outside recreation on several occasions during the summer of 2014
and the spring of 2016.

While I will grant Rivera’s motions seeking to

supplement the record on his original claims with additional exhibits and
argument, I must deny his pending motions for interlocutory injunctive relief as
without merit. After review of the record as supplemented, I conclude that the
defendants’ Motions for Summary Judgment must be granted.

1

In the Complaint, Rivera identified this defendant as Docketry. Because the
defendant’s submissions spell his name as Dockery, I will use that spelling and direct the
clerk to correct the court’s docket.

I.
Rivera has been assigned Security Level S, the highest security classification
in the Virginia Department of Corrections (“VDOC”).2 Because of his security
level, at all times relevant to his Complaint, Rivera has been incarcerated in a
special housing (or segregation) unit at Red Onion State Prison (“Red Onion”).
The policy governing conditions in a segregation unit is VDOC Operating
Procedure (“OP”) 861.3. Barksdale Aff. ¶ 4 and Enclosure A, ECF No. 22-1.
Inmates in this status are permitted limited out-of-cell activity. Whenever an
inmate leaves his Special Housing Unit cell for any reason, he undergoes a strip
search, is placed in restraints, is frisk searched outside his cell, and is escorted by
correctional officers.

Id. at OP 861.3(V)(D).

When an inmate is initially

transferred to a Level S housing unit, staff will orient him about the available
services and how to access them. OP 861.3(V)(E)(1).
Segregation inmates, like inmates in the general prison population, regularly
receive clean bedding and clothing and may possess personal hygiene items. See
gen. Id. at OP 861.3(V)(E)(8), (9). They are issued one towel and one wash cloth
and may sponge bathe in their cells. Id. at OP 861.3(V)(E)(8)(a), (13)(b). By
policy, segregation inmates are offered the opportunity to shower and shave no

2

This summary of undisputed facts is based on the documents in the record, taken
in the light most favorable to Rivera as required on summary judgment. Williams v.
Staples, Inc., 372 F.3d 662, 667 (4th Cir. 2004).
‐2‐ 

less than three times per week, unless security or safety considerations require
otherwise. Id. at OP 861.3(V)(E)(13)(b). Segregation inmates are allowed a
minimum of one hour of out-of-cell exercise on five separate days each week in a
supervised area, including three days of outside exercise, unless security or safety
considerations dictate otherwise.

Id. at Barksdale Aff. ¶¶ 4, 8.

During an

institutional lockdown, all outside recreation and showers may be suspended for
segregation units. Id. at ¶ 4.
Documents in the record, including two video clips that Rivera has asked me
to consider, indicate the procedure that segregation inmates must follow to accept a
shower or recreation session. Between about 6:15 and 7:15 every morning, a
supervisory officer will announce that the shower and/or recreation list is being
taken. Resp. to Mot. Compel, 16, ECF No. 46-3. The supervisor then goes to each
cell in the unit and each inmate must verbally respond whether or not he wants the
offered shower and/or outside recreation that day. Id., at 27. If the inmate fails to
do so, because he is asleep or responds in some nonverbal manner, the supervisor
marks on the list that the inmate has refused the offered activity. See id. at 47,
ECF No. 46-2.

An inmate may also be marked as refusing the activity for

noncompliance with other procedures, such as his cell being out of compliance,
asking to postpone the activity, or not following directions during the strip search.
See, e.g., id. at 34-35, 74, ECF No. 46-1.
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Staff document each segregation inmate’s daily activities, from meals to
mental health assessments, on the special housing individual log sheet located on
his cell door. Barksdale Aff. ¶ 5, ECF No. 22-1. This log indicates if the inmate
refused, or was provided, a shower or outside recreation. Id. at ¶ 6.
Rivera has been continuously assigned to segregation since April 2014 and
has been repeatedly advised of the need to comply strictly with the shower and
recreation procedure. For example, he filed a grievance complaining that on April
5, an officer did not take him to the shower. The written, Level I response to his
grievance stated:
Offenders who fail to follow/comply with procedure and practice or
become disruptive during recreation/shower times are refusing to
accept the offered recreation/shower.
You are housed as a security level “S” offender . . . . Due diligence
will be placed on control of disruptive or abusive behavior. Dates and
times that you do not accept recreation/showers either by your own
volition or non-compliance are decisions and choices that you make.
There is no evidence of procedure violation.
Resp. to Mot. Compel 2, ECF No. 46-3. Copies of other administrative remedy
forms in the record include similar responses from officials, reminding Rivera that
he will be marked as refusing a shower or outside recreation if he fails to verbally
accept the offered activity at the time the list for the day is being created or if he
fails to comply with other procedures. See, e.g., Counter Aff. Exs., at 26, 28, 38,
ECF No. 52-1.
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In July 2016, Rivera filed this § 1983 Complaint, alleging that various
supervisory officials and corrections officers had denied him outside recreation
and/or a shower on numerous occasions “for no reason.” Compl. ¶ 25, ECF No. 1.
Specifically, he states that defendants Messer, Brewer, Day, Stephens, Williams,
Dockery, Christopher Deel, Clinton Deel, and Ramey “denied/refused to provide
[him] with outside recreation (i.e. fresh air and exercise) and shower(s)/sanitation”
as required by OP 861.3, id. at ¶ 21, on the following dates in 2014: June 27, 28,
and 29; July 1, 3, 4, 5, 6, 8, 10, 11, 12, 13, 15, 17, 18, 19, 20, 22, 24, 25, 26, 27, 29,
and 31; and August 2, 3, 5, 7, 8, 9, 10.3 On some of these days, he complains that
the officer(s) did not take him to shower or to outside recreation, while on other
days, he complains only that the officer(s) did not take him to one activity or the
other.
Rivera also complains that in 2016, Messer, for no reason denied him a
shower on March 19, May 1, 13, 15, and 18, and June 24; denied him outside
recreation on March 20 and 23, April 1 and 3, and June 25; and denied him both a
shower and outside recreation on March 24 and 29, and on June 26 and 29.
Finally, Rivera complains that in 2016, Mullins denied him outside recreation and

3

Rivera also alleges that Officers Miller and Baker denied him outside recreation
and/or a shower on June 20, 21, 22, 24, and 26, 2014. He does not name these

officers as defendants, however.
‐5‐ 

a shower on April 12; defendant Ramey denied him a shower on April 16; and
Christopher Deel denied him a shower on April 29.
Rivera alleges that “for years [he] has had an ongoing Medical problem with
skin infection bacteria that requires him to take a shower so that it goes away and
not spread.”

Id. at ¶ 39.

He states that he “has to appl[y] the medication

prescribed (i.e. Selenium Sulfide) by the doctor for washing in showers” on
Tuesdays, Thursdays, and Saturdays. Id. at ¶ 33; Compl. Ex. 4, at 29, ECF No. 11. Rivera alleges that as a result of being denied outside recreation and showers
on multiple occasions in the summer of 2014 and the spring of 2016, he suffered
the “re-appearance of fungal infection (i.e. skin infection/bacteria),” emotional and
mental deterioration, depression, lack of energy and sleep, loss of appetite, and
headaches. Compl. ¶ 43. He believes that washing himself in his cell instead of
showering may cause the infection to spread.
Rivera contends that the officers who denied him outside recreation and
showers violated his rights under the Eighth and Fourteenth Amendments. He
also asserts that the defendant officials who serve in supervisory or administrative
positions violated his rights by failing to enforce the VDOC policy requirement
for segregation inmates to receive three showers and three hours of outside
recreation per week and by refusing to act on his grievances and appeals about
being repeatedly denied showers and outside recreation. As relief, Rivera seeks
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monetary damages and preliminary and permanent injunctive relief ordering that
he receive the number of showers and recreation periods required by VDOC
policy every week.
Defendants Mathena, Barksdale, Duncan, Clarke, Elam, Parr, Lt. S. Day,
Messer, Gilbert, Turner, Stephens, Mullins, Christopher Deel, Clinton Deel,
Ramey, Williams, and Dockery have filed Motions for Summary Judgment.4 The
defendants do not dispute that Rivera did not receive a shower and/or outside
recreation on the dates that he asserts. Rather, they contend that he was offered
showers and recreation regularly as required by policy. Their evidence is that
“[o]n the dates that Rivera did not receive recreation or a shower, he was not
scheduled for the activity, the institution was on lockdown or he refused to attend
on his own free will.” Gilbert Aff. ¶ 5, ECF No. 36-2.
Rivera has responded to these motions, and I find them ripe for disposition.
For reasons discussed herein, I conclude that the defendants are entitled to
summary judgment.

I also conclude that Rivera’s separate motions seeking

4

The court was unable to accomplish service of process one defendant,
Correctional Officer Day, see ECF No. 33, 44. Correctional Officer Brewer, although
served, has not responded to the Complaint. For the reasons discussed in this Opinion
with regard to the other defendants, however, I find that Rivera has not stated any
actionable constitutional claim against Day or Brewer. Accordingly, I will summarily
dismiss such claims without prejudice under 28 U.S.C. § 1915A(b)(1) (authorizing
summary dismissal of prisoner complaint against governmental officials for failure to
state a claim). As such, I will deny as moot Rivera’s motion seeking additional court
assistance regarding service of process on these defendants.
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preliminary injunctive relief based on events that occurred after the period at issue
in the Complaint must be denied.
II.
A court should grant summary judgment “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). “As to materiality . . . [o]nly disputes over
facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”5 Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. I must draw all reasonable inferences from the facts in favor of Rivera,
the nonmoving party.

Williams, 372 F.3d at 667.

Section 1983 permits an

aggrieved party to file a civil action against a person for actions taken under color
of state law that violated his constitutional rights. See Cooper v. Sheehan, 735
F.3d 153, 158 (4th Cir. 2013).
A. No Hazardous Conditions Claim.
The Eighth Amendment, which applies to the states under the Due Process
Clause of the Fourteenth Amendment, “protects inmates from inhumane treatment
and conditions while imprisoned.” Williams v. Benjamin, 77 F.3d 756, 761 (4th

5

I have omitted internal quotation marks, alterations, and citations throughout this
Opinion, unless otherwise noted.
‐8‐ 

Cir. 1996). “[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, 347-49 (1981). It is well established that “only the unnecessary and
wanton infliction of pain implicates the Eighth Amendment.” Wilson v. Seiter, 501
U.S. 294, 297 (1991).
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). 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).

Rivera must also show that each

defendant was deliberately indifferent — that each one knew of and disregarded an
excessive risk to his health or safety. See Farmer, 511 U.S. at 837.
The defendants contend that Rivera has not established the necessary
elements of a hazardous conditions claim arising from denial of showers or outside
recreation. I agree.

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First, Rivera has not demonstrated that the defendants deprived him of any
necessity of life by not providing him with every scheduled shower or recreation
period. He does not deny that at all times, he retained the ability to wash himself
in his cell. See, e.g., Shakka, 71 F.3d at 168 (finding no constitutional violation
when plaintiff was not given a shower for three days after having human feces
thrown on him, because he had access to water with which to clean himself). I also
find no evidence that Rivera is prevented from performing some forms of body
movement and exercise in his cell, such as stretching and situps, or during other
out-of-cell activities besides outside recreation.
Second, Rivera has not presented evidence to persuade a reasonable fact
finder that the denial of the scheduled showers and outside recreation sessions has
caused him “significant physical or emotional harm.” Id. at 166. As stated, he
vaguely alleges that lack of these activities has caused the reappearance of his skin
infection, emotional and mental issues such as depression, lack of energy, sleep,
and appetite, and headaches. He offers no medical evidence to support a finding
that any of these alleged conditions threatened him with significant harm. His
submissions indicate that he has been receiving medication for the infection for
years and for headaches, see, e.g., Counteraff. ¶ 29, ECF No. 52; that the mental
health staff would not treat his reported sleep disorder with medication, Counteraff.
Ex. 11, at 17, ECF No. 53-2; that QMHP Huff considered his mental health
‐10‐ 

condition to be “stable” throughout 2016, id., at 25; and that QMHP Trent did not
note any concerns regarding Rivera’s mental health status or identify a need to
refer him to the psychiatrist. Mot. for Inj. Ex. 4, at 8, ECF No. 55-2.
Third, Rivera has failed to prove causation, a critical element of his claim:
[T]o demonstrate that a deprivation is extreme enough to satisfy the
objective component of an Eighth Amendment claim, a prisoner must
“produce evidence of a serious or significant physical or emotional
injury resulting from the challenged conditions,” Strickler [v. Waters],
989 F.2d [1375,] 1381 [(4th Cir. 1993], or demonstrate a substantial
risk of such serious harm resulting from the prisoner’s unwilling
exposure to the challenged conditions, see Helling [v. McKinney], 509
U.S. [25, 36 (1993).]
Shakka, 71 F.3d at 166 (emphasis added). More specifically, to show a need for
injunctive relief, Rivera must prove “the seriousness of the potential harm and the
likelihood that such injury to health will actually be caused by” the occasional
denial of showers or outside recreation and that the risk of the condition causing
such harm is “so grave that it violates contemporary standards of decency to
expose anyone unwillingly to such a risk” Helling, 509 U.S. at 36 (emphasis
added). Rivera presents no evidence, other than his speculative generalizations,
that any of the health-related conditions he claims to suffer has been, or is likely to
be, triggered or aggravated to any significant extent by the occasional inability to
shower or exercise outdoors.
Fourth, Rivera fails to establish any defendant’s deliberate indifference. He
presents no evidence that any of the defendants knew facts showing them that
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denial of a shower or outdoor exercise session now and again created an excessive
risk to Rivera’s health or safety. Rivera contends that he told officers, supervisory
officials, and administrators, verbally and through grievances and appeals, of the
medical need for him to shower to control the spread of his skin infection and
promote its healing. He similarly complained that lack of outside recreation had
adverse effects on his health. Rivera’s submissions indicate, however, that at no
time during the periods at issue in this lawsuit did he have a doctor’s order for him
to receive showers or outside recreation for medical or mental health reasons, even
if he failed to comply with procedures related to these activities.
The defendants Rivera has named are not medically trained and are not
required to take Rivera’s self-diagnosis — that he required showers for medical
reasons – as true. See Green v. Senkowski, 100 F. App’x 45 (2d Cir. 2004)
(unpublished) (finding that plaintiff’s self-diagnosis without any medical evidence
was insufficient to defeat summary judgment on a deliberate indifference claim).
Rather, these defendants could rightfully rely on Red Onion’s medical staff to
determine and inform them definitively if Rivera had, in fact, a medical need for
regular showers, regardless of policies for security and order. See Shakka, 71 F.3d
at 167; see also Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977) (“the essential
test is one of medical necessity and not simply that which may be considered
merely desirable”).
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Rivera asserts that he was not “disruptive,” that he did not “in any way
violate[] any prison policy,” and that the defendants refused to provide him
showers and outside recreation “for no reason.” Compl. ¶ 25, ECF No. 1. The
record as a whole does not support these assertions, however. The many copies of
Rivera’s informal complaints and grievances that he or the defendants have
submitted to the court indicate that Rivera has lost his shower and recreation
opportunities on most occasions because he has failed to comply with the activities
list procedure. Because Rivera has often failed to make a verbal response during
the morning activity list procedure, the supervisors have marked him as having
refused the activity, and their subordinate officers have refused to make exception
to the list when providing the activity to other inmates who properly requested it.
Similarly, the supervisory and administrative personnel who reviewed Rivera’s
grievances and appeals about these events have found the loss of showers and
recreation to be Rivera’s choice — expressed through his lack of compliance with
procedures.
Rivera contends that the supervisor should blow a whistle before taking the
list and make more effort to find out Rivera’s preference while making the list (by
waking him if he is asleep, ensuring communication with him, or allowing him to
accept a shower or outdoor recreation by leaving a note on his door).

He

complains that the escorting officers should allow him the activity even if the list
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says that he refused it or that they should come back for him out of order if he is
eating or using the toilet. These disagreements with the procedures, however, do
not negate the fact that Rivera’s failure to comply with procedures appears to be
the primary cause for his missed opportunities for showers and outside recreation.
Thus, whatever discomfort he may have suffered resulted from his own behavioral
choices. Moreover, Rivera’s allegations that the officers themselves occasionally
violate these procedures do not state any § 1983 claim against them. See e.g.
Riccio v. Cty. of Fairfax, 907 F.2d 1459, 1469 (4th Cir. 1990) (finding that state
official’s “failure to abide by [state] law is not a federal due process issue”).
B. No Medical Treatment Claim.
If I construe Rivera’s Complaint as raising a separate claim alleging
inadequate medical care, he must show both a serious medical need and the
defendants’ deliberate indifference to that need. Estelle v. Gamble, 429 U.S. 97,
104 (1976). His claim fails on both facets of this standard.
Rivera must show that the medical condition at issue was objectively
serious, meaning, “one that 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 doctor’s attention.” Iko v. Shreve, 535 F.3d 225, 241 (4th Cir.
2008); Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (holding that medical
condition is sufficiently serious if it is “a condition of urgency, one that may
‐14‐ 

produce death, degeneration, or extreme pain”). As stated, no one on the mental
health staff has diagnosed Rivera with emotional or mental conditions mandating
treatment. While the doctor has prescribed cream for Rivera’s skin condition,
Rivera presents no evidence that the doctor has extended that prescription to
include mandatory showers. Without such evidence, I cannot find that Rivera has
presented a material disputed fact on which he could prove that he has a serious
medical or mental health need for mandatory, regular showers and outside
recreation.
For his medical claim, Rivera must also show deliberate indifference. To act
with deliberate indifference, an official must have been personally aware of facts
indicating a substantial risk of serious harm, and also must have actually
recognized the existence of such risk. Farmer, 511 U.S. at 838. The indifference
must have been sufficiently egregious to offend “evolving standards of decency.”
Estelle, 429 U.S. at 106. For reasons discussed above, Rivera simply offers no
evidence of each defendant’s actual knowledge of a medical need to provide
mandatory showers and outside recreation to Rivera regardless of his lack of
procedural compliance. I cannot find that any defendants’ action to deny Rivera a
shower or an episode of outside recreation constituted “unnecessary and wanton
infliction of pain” or was “repugnant to the conscience of mankind” so as to
amount to a violation of the Eighth Amendment. Id. at 105-06.
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C. No Due Process Claim.
The Due Process Clause of the Fourteenth Amendment prohibits a state from
depriving “any person of life, liberty, or property without due process of law.” U.S.
Const. amend. XIV, § 1. “To state a procedural due process violation, a plaintiff
must (1) identify a protected liberty or property interest and (2) demonstrate
deprivation of that interest without due process of law.” Prieto v. Clarke, 780 F.3d
245, 248 (4th Cir. 2015). “A liberty interest may arise from the Constitution itself,
by reason of guarantees implicit in the word ‘liberty,’ . . . or it may arise from an
expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545
U.S. 209, 221 (2005). A state regulation may create a protected liberty interest
only if it provides “a basis for an interest or expectation” regarding a condition of
confinement, Prieto, 780 F.3d at 250, and involves a condition that “impose[]
atypical and significant hardship . . . in relation to the ordinary incidents of prison
life.” Sandin v. Conner, 515 U.S. 472, 484 (1995).
Rivera apparently believes that OP 861.3 concerning segregation conditions
creates for him a constitutionally protected liberty interest in having three showers
and three outside recreation sessions every week.

At the most, however, I

conclude that this regulation may create “a basis for an interest or expectation” for
segregation inmates to be offered an opportunity to accept participation in these
activities, when prison security and scheduling needs allow. Prieto, 780 F.3d at
‐16‐ 

250. I cannot find that the statute creates any expectation for Rivera to receive
these activities whether or not he requests one in the manner that officials require
and complies with related procedures.
I also cannot find that occasionally being denied showers and outside
recreation sessions constitutes an “atypical and significant hardship” for Rivera
compared to normal prison conditions. Sandin, 515 U.S. at 484. It is undisputed
that security needs in the prison setting sometimes call for lockdowns and
cancellation of these activities for several days at a time. See Barksdale Aff. ¶ 12,
ECF No. 36-1 (regarding lockdown at Red Onion from October 10 to 23, 2016,
when out-of-cell “offender movement was not permitted”). For these reasons, I
will grant the defendants’ Motions for Summary Judgment as to Rivera’s due
process claim.
D. No Equal Protection Claim.
The Equal Protection Clause of the Fourteenth Amendment “keeps
governmental decision makers from treating differently persons who are in all
relevant respects alike.” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002). To
prove an equal protection claim, an inmate “must first demonstrate ‘that he has
been treated differently from others with whom he is similarly situated and that the
unequal treatment was the result of intentional or purposeful discrimination.” Id. If

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he makes these showings, he must also demonstrate that the challenged policy is
not “reasonably related to [any] legitimate penological interests.” Id. at 732.
Rivera’s equal protection claim fails on the first element. The lone fact that
other inmates received showers or recreation on days when he did not is
insufficient to show that Rivera was similarly situated to them in all relevant
respects. Inmates who verbally communicated to the supervisor that they wanted a
shower or recreation session during the morning list procedure and complied with
other cell and escort procedures were not similarly situated to River, if he did not
take any one or more of these required steps.
Rivera contends that video footage from the Rapid Eye surveillance camera
in his housing unit will prove his equal protection and other claims and that the
defendants should incur a spoliation sanction because they failed to preserve all of
this video footage as he requested. I find no basis for a spoliation sanction or proof
from the existing video of any of Rivera’s claims.
I have reviewed the two video clips that the defendants have provided,
showing the shower procedures in Rivera’s unit on April 29 and May 1, 2016.
Rivera has viewed both clips and states that he is not among the inmates whom the
video shows being escorted out of their cells and back. See Counter Aff. ¶¶ 45-46,
ECF No. 53-1. The video shows the supervisor making a leisurely round of the
cells on the top tier and marking on inmates’ door logs. Video footage does not
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include audio or show inmates’ activity inside the cell, however. As such, the
footage does not reflect whether or not Rivera and/or other inmates verbally
informed the supervisor that they wanted to shower or why Rivera was not
provided a shower on those days. Thus, I cannot find that the available footage
proves Rivera’s claims or that any the other requested video clips would do so.
Spoliation is “the destruction or material alteration of evidence or the failure
to preserve property for another’s use as evidence in pending or reasonably
foreseeable litigation.” Goodman v. Praxair Servs., Inc., 632 F. Supp. 2d 494, 505
(D. Md. 2009). Under Rule 37(e) of the Federal Rules of Civil Procedure,
If electronically stored information that should have been preserved in
the anticipation or conduct of litigation is lost because a party failed to
take reasonable steps to preserve it, and it cannot be restored or
replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the
information, may order measures no greater than necessary to
cure the prejudice; or
(2) only upon finding that the party acted with the intent to
deprive another party of the information’s use in the litigation
may:
(A) presume that the lost information was unfavorable to
the party;
(B) instruct the jury that it may or must presume the
information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
Fed. R. Civ. P. 37(e).
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At most, the video footage provided verifies that on April 29 and May 1,
2016, Rivera was not escorted to the showers or the recreation area, although other
inmates received these activities. The defendants failed to preserve similar video
footage from all the dates when Rivera did not receive these activities, as alleged in
the Complaint. The defendants admit that Rivera did not receive showers and/or
outside recreation on these dates, however. As such, I find no basis to believe that
the unavailable video footage would change the outcome on summary judgment.
Accordingly, I cannot find that Rivera was prejudiced by the video’s unavailability
or that any spoliation sanction is warranted. I will deny Rivera’s motion for such
sanctions and grant the defendants’ Motions for Summary Judgment as to his equal
protection claims.
E. No Ground for Interlocutory Injunctive Relief.
Since filing his § 1983 Complaint, Rivera has filed four separate motions
seeking interlocutory injunctive relief based on events that occurred months or
even years after the events at issue in this action (ECF Nos. 17, 39, 55, and 61).
He has also filed new pleadings (ECF No 56 and 60) with additional facts,
argument, and exhibits, many of which are already part of the record. These new
events also concern officials not named in the Complaint as defendants and allege
other types of adverse actions against Rivera unrelated to the claims in the
Complaint, including:

retaliatory denial of showers and outside recreation in
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December 2016 because of a prior lawsuit; delayed access to Step Down program
activities required to become eligible for less restrictive housing assignments;
denial of administrative remedy forms; denial of access to legal materials; denial of
outside recreation for six weeks in January and February 2017; transfer to a less
desirable cell (too cold and out of surveillance camera range) after Rivera wrote
and asked an outside activist to call a local radio station and mention the names of
Rivera and several Red Onion officials; receipt of smaller portions of food; denial
of a protective glove for toilet cleaning on one occasion; placement in a shower
with a defective mirror and lower lighting; omission from the Passover list because
his paperwork was not received; and uncomfortable living conditions, such as a
noisy inmate in a neighboring cell, cold air coming from his vent, and denial of
possession of certain authorized property items; verbal threats from an official late
at night; racial slurs from an official during a recreation session; officials’ failure to
do thirty-minute security checks as required by policy; and repeated denials of
showers and/or recreation in June and July 2017, despite his posting a written
request for one or both of these activities on his cell door. In deciding the claims
Rivera raised in the Complaint, I have also considered all of the documents Rivera
has submitted with these motions. I cannot find, however, that Rivera is entitled to
the extraordinary relief he seeks in these motions.

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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.” Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 20 (2008). I have already held that Rivera’s claims in his Complaint
fail on the merits,6 and that he has not demonstrated how he has suffered, or is
likely to suffer, significant harm without mandatory, regular showers and outside
recreation. As such, I also cannot find that the balance of the equities or the public
interest weigh in favor of preliminary injunctive relief. On the contrary, I find that
prison officials’ strict enforcement of the activities procedure — by requiring
Rivera and other inmates to make a verbal request for a shower or outside
recreation while the supervisor is compiling the activities list for that day —
furthers the public interest in training such inmates to comply with rules.
Moreover, an interlocutory injunction can be warranted only where the
movant establishes a relationship between the injury claimed in the motion and the

6

I decline to consider Rivera’s motions seeking interlocutory injunctive relief as
motions seeking to supplement or amend the underlying Complaint. Rivera has never
expressly moved to amend or supplement his initially stated claims or to add defendants.
Furthermore, Rivera filed his interlocutory relief motions within days of the events at
issue in those motions. Thus, I find that that the chances of his having first fully
exhausted available administrative remedies are slim to none, leaving any possible
§ 1983 claims buried in these allegations barred from suit in this case by 42 U.S.C.
§ 1997e(a) (barring federal civil actions regarding prison conditions prior to exhaustion
of available administrative remedies).
‐22‐ 

conduct giving rise to the complaint itself. Omega World Travel, Inc. v. Trans
World Airlines, 111 F.3d 14, 16 (4th Cir. 1997). As stated, Rivera’s motions for
interlocutory relief rest on alleged incidents subsequent to the periods at issue in
the Complaint and, in most cases, not clearly connected to the named defendants.
For the reasons stated, I must deny Rivera’s motions for interlocutory injunctive
relief, ECF Nos. 17, 39, 55, 60 and 61.7
III.
For the reasons stated, it is hereby ORDERED as follows:
1.

The clerk shall CORRECT the spelling of defendant
Dockery’s name on the docket;

2.

Rivera’s motion seeking to supplement his Counter Affidavit
(ECF No. 53) is GRANTED;

3.

Rivera’s motion seeking a spoliation sanction (ECF No. 42) is
DENIED;

4.

The defendants’ Motions for Summary Judgment (ECF Nos.
21 and 35) are GRANTED;

7

Rivera’s most recent submission in this case, ECF No. 59, is a motion for
unspecified relief that he moves to file under seal. The allegations in this motion have no
bearing on the claims in the Complaint. It will be stricken pursuant to Rule 12(f)(1), and
retained under seal.
‐23‐ 

5.

Rivera’s claims against correctional officers Day and Brewer
are DISMISSED WITHOUT PREJUDICE, pursuant to 28
U.S.C. § 1915A(b)(1),8 and Rivera’s “Motion Requesting
Help” regarding these defendants (ECF No 54) is DISMISSED
as moot;

6.

Rivera’s motion seeking to supplement his demand for
interlocutory injunctive relief (ECF No. 56) is GRANTED, but
his motions seeking such relief (ECF Nos. 17, 39, 55, 60, and
61), as supplemented, are DENIED; and

7.

Rivera’s Motion to Seal (ECF No. 59) is STRICKEN and
retained under seal.

A separate Judgement will enter herewith for defendants Mathena,
Barksdale, Duncan, Clarke, Elam, Parr, Stacey Day, Messer, Gilbert, Turner,
Stephens, Williams, Dockery, Mullins, Christopher Deel, Clinton Deel, and
Ramey.
ENTER: August 14, 2017
/s/ James P. Jones
United States District Judge

8

Because Rivera’s submissions as a whole fail to support the constitutional
claims he asserts in the Complaint, I find it clear that his allegations fail to state any
constitutional claim against Day and Brewer. See 28 U.S.C. § 1915A(b)(1) (authorizing
summary dismissal of prisoner’s claims against governmental defendant for failure to
state a claim).
‐24‐