Hurd v. Robichaux et al

Filing 33

OPINION. Signed by Judge James P. Jones on 11/7/2017. (slt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
LIONEL THOMAS HURD,

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Plaintiff,
v.
DARA ROBICHAUX, ET AL.,
Defendants.

Case No. 7:16CV00550
OPINION
By: James P. Jones
United States District Judge

Lionel Thomas Hurd, Pro Se Plaintiff.
Plaintiff Lionel Thomas Hurd, a Virginia inmate proceeding pro se, has filed
an Amended Complaint under the Civil Rights Act of 1871, 42 U.S.C. § 1983. He
asserts that prison officials failed to protect him from an assault by another inmate.
I conclude that Hurd’s Amended Complaint must be summarily dismissed with
prejudice for failure to state a claim upon which relief may be granted.
I.
Hurd’s initial Complaint was dismissed without prejudice upon my finding
that his allegations failed to state a claim because he did not allege personal
involvement by any prison official. See 28 U.S.C. § 1915A(b)(1). Hurd appealed.
The United States Court of Appeals for the Fourth Circuit held that “[b]ecause
Hurd may be able to remedy the pleading deficiencies identified by the district
court by filing an amended complaint, we conclude that the order Hurd seeks to

appeal is neither a final order nor an appealable interlocutory or collateral order.”
Hurd v. Robichaux, 696 F. App’x 122 (4th Cir. 2017) (unpublished) (citing Goode
v. Cent. Va. Legal Aid Soc’y, Inc., 807 F.3d 619, 623-24 (4th Cir. 2015) and
Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67
(4th Cir. 1993)). The court of appeals thus dismissed the appeal for lack of
jurisdiction, but remanded the case to permit Hurd to file an amended complaint.
Accordingly, following the issuance of its mandate by the court of appeals, I
directed Hurt to submit an amended complaint,
clearly titled as such, identifying all defendants, and making a full and
complete statement of all of his claims, the facts in support thereof,
and the relief requested. Such an Amended Complaint will replace all
of Hurd’s previous submissions, and I will not consider those prior
submissions in deciding his claims.
Order, Oct. 18, 2017, ECF No. 31. Hurd then filed an Amended Complaint,
alleging the following facts.1
In the fall of 2016, Hurd was incarcerated at Marion Correctional Treatment
Center (the “prison” or “MCTC”). He had a prison job as a barber. On November
3, Hurd entered the secured wing of the prison to cut inmates’ hair. D. Bowler, an
inmate committed for mental health treatment, punched Hurd in the face. Hurd
filed an assault charge against Bowler with the local state court, with unspecified
results.

Hurd’s submissions indicate that as a result of Bowler’s assault, he

1

Hurd attached copies of his various prison administrative grievances, amplifying
his factual allegations, which I have also considered.
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suffered a bruise on his cheek and headaches. The medical staff provided him with
ice for his cheek and pain medication for the headaches.
According to Hurd, Bowler is serving a life sentence and had been
committed to MCTC by court order for mental health treatment.

State law

authorizes the Director of the Virginia Department of Corrections or his designee
to petition a state court judge for commitment of a prisoner for treatment. Va.
Code Ann. § 53.1-40.1(A). The court may order such commitment if clear and
convincing evidence shows that the inmate “is incapable, either mentally or
physically, of giving informed consent to such treatment” and such treatment is in
his best interests. Id. Hurd contends that Bowler’s commitment under this section
put the MCTC medical staff and warden on notice that Bowler was dangerous.
Bowler was also a high security inmate, while Hurd was a low security inmate.
The MCTC staff failed to place Bowler in handcuffs or shackles before allowing
Hurd to enter the secured area to cut his hair.
As defendants to his § 1983 claims, Hurd has named the warden of the
prison, Dara Robichaux, MCTC, and “staff.” Am. Compl. 1, ECF No. 32. He
contends that the warden and the staff should be liable to him for monetary
damages because Bowler was committed to their care when the assault occurred.2

2

Hurd also seeks Extraordinary Good Conduct Time under Virginia Code § 53.1191 to reduce his prison sentence to time served, based on the bodily injury he suffered.
Mot. for Leave to Modify 1, ECF No. 16; Mot. Amend. 4, ECF No. 29. Such relief is not
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II.
I am required to dismiss any action or claim filed by a prisoner against a
governmental entity or officer if I determine 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). To state a cause of action under §1983, a plaintiff must establish
that he has been deprived of rights guaranteed by the Constitution or laws of the
United States and that this deprivation resulted from conduct committed by a
person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
As an initial matter, Hurd has no legal basis for § 1983 claims against
MCTC. “[N]either a State nor its officials acting in their official capacities are
‘persons’ under § 1983,” and this rule also applies to “governmental entities that
are considered ‘arms of the State’ for Eleventh Amendment purposes.” Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 70-71 (1989). Because the prison is
properly considered an arm of the Commonwealth of Virginia, it cannot be sued
under § 1983.
While the warden and individual prison staff members are persons subject to
suit under § 1983, Hurd has failed to state any claim against any of them for other
reasons. In a § 1983 action, “liability will only lie where it is affirmatively shown

available in a § 1983 action. Preiser v. Rodriguez, 411 U.S. 475, 507 (1973) (holding
that claim affecting length of “actual confinement in prison” may not be presented
through § 1983 action).
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that the official charged acted personally in the deprivation of the plaintiff[’s]
rights.” Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (internal quotation
marks, citations and alterations omitted).

Given this requirement to show

individual involvement, Hurd cannot proceed with any § 1983 claim against
MCTC’s medical staff as a group. He has not identified any individuals in this
group with particular responsibility for Bowler’s care in November 2016 or stated
facts about actions any such individual personally took that, in any way, caused
Hurd’s injuries. Moreover, even if Hurd could show that some medical staff
member erred in failing to order restraints for Bowler, the warden cannot be held
liable under § 1983 for that error merely by virtue of her supervisory position. Id.
(“The doctrine of respondeat superior has no application” under § 1983).
Furthermore, Hurd’s allegations do not suggest that the warden or anyone
else at the prison deprived him of his constitutional rights.
The Constitution does not mandate comfortable prisons, but
neither does it permit inhumane ones. Prisons house persons with
demonstrated proclivities for antisocial criminal, and often violent,
conduct, and at the same time strips inmates of virtually every means
of self-protection. The government and its officials are not free to let
the state of nature take its course, and gratuitously allowing the
beating or rape of one prisoner by another serves no legitimate
penological objective.
Prison officials are, therefore, obligated to take reasonable
measures to guarantee inmate safety. In particular, prison officials
have a duty to protect prisoners from violence at the hands of other
prisoners.
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That being said, not every injury suffered by a prisoner at the
hands of another translates into constitutional liability for prison
officials responsible for the victim’s safety. Rather, liability attaches
only when two requirements are met. First, a prison official’s act or
omission must result in the denial of the minimal civilized measure of
life’s necessities. For a claim based on a failure to prevent harm, the
plaintiff must show that he was incarcerated under conditions posing a
substantial risk of serious harm.
Makdessi v. Fields, 789 F.3d 126, 132-33 (4th Cir. 2015) (internal quotation
marks, citations and alterations omitted). In this case, Hurd must show objectively
that he has suffered a “significant physical or emotional harm” as a result of the
hazardous condition at issue. Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995).
The second requirement in the constitutional standard is to show that,
subjectively, the official knew facts indicating a substantial risk of serious harm,
recognized the existence and seriousness of that risk, and failed to respond
reasonably to alleviate it. Makdessi, 789 F.3d at 133-34.
A prison official’s subjective actual knowledge can be proven
through circumstantial evidence showing, for example, that the
substantial risk of inmate attacks was longstanding, pervasive, welldocumented, or expressly noted by prison officials in the past, and the
circumstances suggest that the defendant-official being sued had been
exposed to information concerning the risk and thus must have known
about it. Direct evidence of actual knowledge is not required.
Id. at 133 (internal quotation marks and citations omitted). On the other hand,
while prison officials are constitutionally “obligated to take reasonable measures to
guarantee inmate safety” against attacks from other inmates, they cannot be liable

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under § 1983 for failing to prevent such an attack through mere inadvertence or
negligence. Id. at 132.
Hurd has not stated facts supporting either prong of the Eighth Amendment
standard. First, he has not shown that he was confined under conditions posing a
“substantial risk of serious harm.” Id. at 133. At the most, he alleges suffering
temporary bruises and headaches from Bowler’s attack. I cannot find that these
injuries qualify as “significant physical or emotional harm” so as to satisfy the
objective prong of the standard. Shakka, 71 F.3d at 166.
Second, Hurd states no facts showing that any prison official knew that
Bowler posed a substantial risk of harm to other inmates, as required to satisfy the
subjective prong of the standard. Contrary to Hurd’s contention, the mere fact of
Bowler’s commitment or security level does not show, or even suggest, that he is
dangerous to other inmates. As indicated, the state court may order commitment
upon finding that the inmate “is incapable, either mentally or physically, of giving
informed consent” to mental health treatment that would be in his own best
interests. Va. Code Ann. § 53.1-40.1. Hurd does not allege that Bowler had
attacked or threatened to attack other inmates at MCTC or at any other prison
facility where he had been incarcerated. Thus, he fails to forecast any evidence
showing a documented pattern of dangerous behavior from Bowler putting MCTC

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officials on notice that without restraints, he posed a substantial risk of serious
harm to others.
III.
Based on Hurd’s failure to plead necessary facts supporting the elements of
his deliberate indifference claim, after he was granted an opportunity to do so
through amendment, I must summarily dismiss his § 1983 claims under
§ 1915A(b)(1) with prejudice for failure to state a claim upon which relief may be
granted. For the same reason, I must deny Hurd’s Motion for Summary Judgment.
Finally, pursuant to 28 U.S.C. § 1367(c), I decline to exercise supplemental
jurisdiction over any related state law claim Hurd may be attempting to raise in this
action and will dismiss such claims without prejudice.
A separate Final Order will be entered herewith.
DATED: November 7, 2017
/s/ James P. Jones
United States District Judge

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