DePaola v. Clarke et al

Filing 8

OPINION. Signed by Judge James P. Jones on 7/13/2017. (slt)

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

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
HAROLD CLARKE, ET AL.,
Defendants.

Case No. 7:17CV00028
OPINION
By: James P. Jones
United States District Judge

Eric DePaola, Pro Se Plaintiff.
The plaintiff, Eric DePaola, an inmate proceeding pro se, filed this prisoner
civil rights action under 42 U.S.C. § 1983 and the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc to 2000cc-5.
DePaola alleges that more than two dozen prison officials have violated his rights
related to outdoor recreation, religious dietary beliefs, or disciplinary proceedings.
After review of DePaola’s submissions, I conclude that this action must be
summarily dismissed.
I.
DePaola is incarcerated at Red Onion State Prison (“Red Onion”) in Pound,
Virginia, where the alleged violations occurred.

Liberally construed, his

Complaint alleges four unrelated and improperly joined claims.

Outside Recreation.
DePaola first complains generally about outside recreation procedures and
conditions for segregation inmates like himself.

He alleges that Virginia

Department of Corrections (“VDOC”) and Red Onion policies call for officers
each morning “to make a verbal announcement that the rec/shower list is being
taken & make rounds at each prisoner’s cell to take up this list marking accept
and/or refuse.”

Compl. ¶ 34, ECF No. 1.

He contends that policy requires

approval from a supervisor to change this list.
Routine recreation procedures require the inmate to remove his clothes,
place them in the tray box to be searched, perform a visual body cavity search,
retrieve his clothes, and redress. Officers then handcuff and shackle the inmate
and escort him to a recreation cage. These cages do not include bathrooms,
drinking water, or recreation equipment. DePaola alleges that the cages are often
contaminated with feces, urine and other substances from previous inmates, birds
or insects. Poor drainage and maintenance of the cages often allegedly result in
standing water, snow or ice, and inmates allegedly do not always receive weatherappropriate outdoor clothing.
DePaola alleges that defendants Large, Messer, Hall, Dickenson and
Sheperd (“the Sergeants”) “rarely follow protocol in re to taking the rec list &
often engage in tactics to trick, extort &/or den[y] a prisoner’s rec (including pl.).”
-2-

Id. at ¶ 46. He asserts that he “has been extorted &/or denied (unjustifiably) via
other means his rec” by the Sergeants “at one point in time or another.” Id. at ¶ 47.
DePaola also complains that defendants Steavens, Stanley, Fleming, Lovell,
Hill, Vaughn, Dodson, and Gentry (“the Guards”) “also engage in tactics to trick,
extort or otherwise unjustifiably den[y] a prisoner his rec. (incl. pl.).” Id. at ¶ 48.
He asserts that these Guards “engage in harassment [sic] (sexual &/or other) while
conducting the pre rec. strip search &/or during escorting said prisoner to the rec.
area (including pl.).” Id. at ¶ 49.
Religious Diet.
DePaola states that his Muslim religious beliefs prohibit him from ingesting
animal or human waste and from ingesting any animal products that are not
prepared in a “halal” manner. Id. at ¶ 51. He complains that when the defendants
named above fail to clean the recreation cage before placing him in it, he
sometimes “ingests” the following items in violation of his religious beliefs:
“feces (human & bird), urine, snot, spit, dead & alive insects, spider webs [sic],
fungus, mold, etc.” Id. at ¶¶ 54, 53.
Disciplinary Proceedings.
VDOC policy allows inmates to be fined up to $15 when found guilty of
certain disciplinary infractions. Once such a penalty is imposed on an inmate,
officials immediately remove that amount from his trust account and place it in the
-3-

“General Commisary Trust Account (GCTA) which is used to purchase recreation
equipment (inter alia).” Id. at ¶ 58. DePaola’s current classification status does
not allow him to utilize recreation equipment.
On January 15, 2016, defendant Hall charged DePaola for possession of a
weapon (a sharpened piece of metal) found by another officer in a cell DePaola
had vacated three days earlier. On January 29, the hearing officer, defendant
Mullins, denied DePaola’s written requests for witness statements and
documentation from the investigation when the metal object was discovered.
During the hearing, Mullins refused to answer DePaola’s questions regarding his
impartiality and fitness to hear the charge. Mullins also refused DePaola’s request
to be cuffed in a manner that allowed him to take notes during the hearing and
denied his request for a staff advisor to take notes for use during an appeal.
Mullins found DePaola guilty based on Hall’s testimony about how the metal
object was found and imposed a $15 fine. The fine amount was immediately
removed from DePaola’s trust account that contained only money received from
his friends and family.

His disciplinary appeals to defendants Duncan and

Barksdale were unsuccessful.
On January 13, 2016, an official charged DePaola for disobeying a direct
order. Mullins granted DePaola’s requests for written witness statements, and the
reporting officer answered many of DePaola’s 43 questions in writing. Mullins
-4-

gave DePaola these forms on February 27, and waited only “approx. 10-15
minutes” before sending defendant Steavens to bring DePaola to the hearing. Id. at
¶ 85. DePaola asked Steavens to allow him more time to review the documents,
speak to his staff advisor, and finish eating lunch. Steavens agreed, left DePaola’s
cell, and started talking to Mullins at the pod table. DePaola’s staff advisor was
also present. Mullins and the advisor went into an office for a short while and then
left the pod. When Steavens later came by DePaola’s cell during his rounds, he
said he had told Mullins that DePaola had refused to go to the hearing. DePaola
later learned that Mullins had conducted the hearing in his absence, found him
guilty, and imposed a fine of $8, taken from his trust account funds received from
family and friends. DePaola’s appeals of the charge and the fine to Duncan and
Barksdale were unsuccessful.
Claims, Injuries and Relief Requested.
Liberally construed, DePaola’s Complaint alleges that the defendants’
actions and policies regarding outside recreation have deprived him of a
constitutionally protected liberty interest without due process and subjected him to
hazardous conditions, in violation of the Eighth Amendment. The Complaint also
alleges that he was denied due process during the challenged disciplinary
proceedings.

-5-

As a result of these alleged constitutional violations, DePaola alleges that he
has suffered the following injuries: “loss of potentially earned physical health”
and possible future health issues, present physical and mental deterioration, nausea,
“freezing pains in wet &/or winter times,” headaches, mental anguish and
humiliation, and a loss of possible spiritual growth (related to his second claim).
Id. at ¶ 96. As relief, he seeks monetary damages and declaratory and injunctive
relief to abolish the use of recreation cages; to provide segregation inmates access
to drinking water, bathrooms, recreation equipment, and adequate clothing during
their outside recreation time in a sanitary area; to expunge the challenged
disciplinary infractions, and to stop imposing fines for such infractions.
II.
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 on which relief may be granted. 28
U.S.C. § 1915A(b)(1). A “frivolous” claim is one that “lacks an arguable basis
either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989)
(interpreting “frivolous” in former version of 28 U.S.C. § 1915(d)). To state a
claim and survive dismissal under § 1915A(b)(1), an inmate’s complaint must
present “enough facts to state a claim to relief that is plausible on its face.”
-6-

Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). 1

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, unreasonable conclusions, or arguments.” Id.
B. Misjoinder of Claims and Defendants.
The present complaint is not consistent with Rules 18 and 20 of the Federal
Rules of Civil Procedure, regarding joinder of claims and parties. Rule 18(a)
allows a plaintiff to join either “as independent or alternative claims, as many
claims as it has against an opposing party.” Rule 20 allows the joinder of several
parties only if the claims arose out of the same transaction or occurrence, or series
thereof, and contain a question of fact or law common to all the defendants. See
6A Charles Alan Wright, et al., Federal Practice and Procedure § 1583 (3d ed.
1998) (noting that, under Rules 18(a) and 20, if the claims arise out of different
transactions and do not involve all defendants, joinder should not be allowed).
Under these rules, “a plaintiff may name more than one defendant in a multiple
claim lawsuit only if the claims against all defendants arose out of the same
incident or incidents and involve a common factual or legal question.” Green v.
Denning, No. 06-3298-SAC, 2009 WL 484457, at *2 (D. Kan. Feb. 26, 2009).
These procedural rules apply with equal force to pro se prisoner cases. Indeed,
1

I have omitted internal quotation marks, alterations, citations throughout this
opinion, unless otherwise noted.
-7-

“[r]equiring adherence in prisoner suits to the federal rules regarding joinder of
parties and claims prevents ‘the sort of morass [a multiple claim, multiple
defendant] suit produce[s].’” Id.
I cannot allow DePaola’s Complaint to proceed as it is presently constituted,
because it improperly joins together multiple claims and defendants, regarding
unrelated incidents in different time periods, in a manner entirely inconsistent with
the rules. Because I conclude, however, that the Complaint also fails to provide
the factual or legal basis for any claim of constitutional significance, I will
summarily dismiss DePaola’s claims on that ground, pursuant to 28 U.S.C. §
1915A(b)(1). I will also decline to exercise supplemental jurisdiction over his state
law claims, pursuant to 28 U.S.C. § 1367(c), and dismiss them without prejudice.
C. No Personal Involvement.
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] plaintiff
must plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662,
676 (2009)). DePaola fails to meet this pleading standard. He states no facts about
any actions or omissions committed by the following administrative or supervisory
defendants in violation of his rights: Clarke, Robinson, Gilbert, Kiser, Wallace,
-8-

Crabtree, Turner, and Ponton. These officials cannot be held liable under § 1983
merely for being supervisors. See Vinnedge v. Gibbs, 550 F .2d 926, 928 (4th Cir.
1977).
At the most, DePaola states that while these defendants may not have
directly violated his rights, they allegedly “compounded/contributed to such via
Deliberate Indifference” to the actions of others. Compl. 5, ECF No. 1. For
supervisory prison officials to be held liable under § 1983 for constitutional
injuries inflicted by their subordinates, an inmate must state facts showing that: (1)
the supervisor had actual or constructive knowledge that his subordinate was
engaged in conduct that posed a “pervasive and unreasonable” risk of
constitutional injury; (2) the supervisor’s response to this knowledge was so
inadequate as to show “deliberate indifference top or tacit authorization” of the
offensive practices; and (3) there was an “affirmative causal link” between the
supervisor’s inaction and the particular constitutional injury suffered. Shaw v.
Stroud, 13 F.3d 791, 799 (4th Cir. 1994). DePaola makes no such factual showing,
and cannot use the label “deliberate indifference” to build actionable claims against
these defendants. Ashcroft, 556 U.S. at 678 (“A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action will not
do.”). Moreover, for reasons I will discuss, DePaola has not demonstrated that his
constitutional rights were violated or will be violated in the future by the actions
-9-

and policies of which he complains. There can be no supervisory liability under §
1983 without a viable constitutional claim at stake.
D. No Liberty Interest in Outside Recreation.
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).
DePaola contends that Virginia Code Ann. § 53.1-32 creates a protected
liberty interest for inmates to receive outside recreation. This section states that,
among other things, “The Director [of the VDOC] shall provide a program of
recreation for prisoners.” Va. Code Ann. § 53.1-32(C). This provision places all
the particular aspects of inmates’ recreation, including type, place, and frequency,
squarely within the discretion of the Director and his designees. Thus, I cannot
find that it creates a protected liberty interest for inmates to receive outside
recreation with specific frequency, equipment, or other amenities. Accordingly, I
-10-

will dismiss

DePaola’s due process claim regarding recreation under

§ 1915A(b)91) as legally frivolous.
To the extent that DePaola faults prison officials for violating prison
regulations or other state laws governing prisoner recreation, his claims fail. A
state official’s violation of state procedural regulations is not a federal due process
issue and is not actionable under § 1983. Riccio v. Cty. of Fairfax, 907 F.2d 1459,
1469 (4th Cir. 1990).
E. No Eighth Amendment Violation.
The Eighth Amendment protects prisoners from cruel and unusual living
conditions, but “restrictive and even harsh” conditions that do not inflict harm “are
part of the penalty that criminal offenders pay for their offenses against society.”
Rhodes v. Chapman, 452 U.S. 337, 347 (1981). 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 objective component of this
standard is met only by conditions that cause “significant physical or emotional
harm, or a grave risk of such harm.” Shakka v. Smith, 71 F.3d 162, 166 (4th Cir.
1995).
-11-

DePaola’s complaints about his outside recreation do not present any claim
of constitutional proportions under this standard. He does not allege that he is
always or with any particular frequency denied outside recreation. At the most, he
alleges that the defendants sometimes deny him a scheduled outside recreation
period without justification, in his opinion. He makes no showing that he has been
deprived of the minimal measure of recreation necessary for life.
DePaola also fails to show that conditions during recreation periods are
unconstitutional. The strip search, restraints, and escort procedures are onerous,
the temporary lack of access to drinking water and bathroom facilities may cause
minor discomfort on occasion, the cages may not always meet desired cleanliness
standards, and his clothing may not always protect him as desired from weather
conditions.

He has not shown, however, that these inconveniences, even

combined, have caused or are likely to cause him serious or significant harm or
that he ever required medical care for the health concerns he alleges. For the stated
reasons, I will summarily dismiss DePaola’s Eighth Amendment recreation claims
under § 1915A(b)(1) for failure to state a claim.

-12-

F. No Deprivation of Religious Rights.
RLUIPA and the First Amendment prohibit the government from imposing
“a substantial burden” on an inmate’s ability to exercise his religion unless the
government can demonstrate an appropriate reason for the burden. Lovelace v.
Lee, 472 F.3d 174, 198-99, n.8 (4th Cir. 2006). For either type of claim, “a
substantial burden on religious exercise occurs when a state or local government,
through act or omission, ‘put[s] substantial pressure on an adherent to modify his
behavior and to violate his beliefs.’”

Id. at 187 (RLUIPA context) (quoting

Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981) (First
Amendment context).
DePaola fails to show that any defendant’s action or policy at issue in this
lawsuit placed substantial pressure on him to violate his religious dietary rules. At
most, he alleges that because officials do not always keep the recreation cages free
from foreign substances, he occasionally (and presumably by accident) ingests
human or animal waste or insects inconsistent with his halal dietary requirements.
These circumstances cannot rise to the level of a substantial burden as required to
state any actionable claim under RLUIPA or the First Amendment. Accordingly, I
must summarily dismiss DePaola’s religious claims as frivolous.

-13-

G. No Denial of Due Process.
To state a procedural due process claim, an inmate must show that he was
deprived of “life, liberty, or property” by governmental action. Beverati v. Smith,
120 F.3d 500, 502 (4th Cir.1997). When a disciplinary penalty does not cause his
original sentence to be enhanced, protected interests are generally limited to
freedom from restraint that imposes atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life. See Sandin v. Conner, 515 U.S.
472, 484 (1995) (holding that disciplinary segregation did not present the type of
atypical, significant deprivation in which a state might create a liberty interest).
Unless the inmate proves deprivation of a protected interest, he has no federal right
to particular procedural protections.
Fines for prison disciplinary infractions do not involve interests protected by
the Constitution. See Bratcher v. Mathena, No. 7:15CV00500, 2016 WL 4250500,
at *1 (W.D. Va. Aug. 10, 2016) (finding $12 fine did not pose an atypical and
significant hardship on the plaintiff in comparison to the ordinary incidents of
prison life); Henderson v. Virginia, No. 7:07-CV-266, 2008 WL 204480, at *10
(W.D. Va. Jan. 23, 2008) (same)). Similarly, I cannot find that the fines imposed
on DePaola for the two challenged disciplinary convictions placed any atypical and
significant hardship on him in comparison to the ordinary incidents of prison life.
Sandin, 515 U.S. at 484.

Because DePaola thus did not possess a federally
-14-

protected interest in avoiding the imposition of a monetary fine, he was not entitled
to federal due process protections before receiving this penalty. 2
In any event, DePaola has not alleged facts showing that he was deprived of
any constitutionally required procedural protections.

“Prison disciplinary

proceedings are not part of a criminal prosecution, and the full panoply of rights
due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418
U.S. 539, 556 (1974).

In prison disciplinary hearings where the proceedings

involve a constitutionally protected interest, such as loss of good time credits, the
rights afforded inmates are limited to the following: (1) written notice of the
charged violations at least 24 hours before the hearing; (2) disclosure of evidence
against the prisoner; (3) the right to call witnesses and present documentary
evidence unless unduly hazardous to institutional safety or correctional goals; (4) a
neutral and detached factfinder; and (5) a written statement by the factfinder of the
evidence relied on and reasons for the disciplinary action. Id. at 559-566.

2

To the extent that DePaola seeks to challenge the fines as deprivations of his
personal property, his allegations are similarly deficient. A deprivation of property under
a state policy offends due process only where the procedural protections afforded by
officials are insufficient to ensure that deprivations under that policy are lawful.
Zinermon v. Burch, 494 U.S. 113, 128 (1990). A post-deprivation remedy for mistaken
deprivations will suffice where the property interest at stake is adequately protected by
such procedures. Id. Under VDOC disciplinary policy, DePaola incurred a fine only
after receiving pre-deprivation notice and a hearing, and he could and did pursue an
appeal of the deprivation. I cannot find that these pre- and post-deprivation procedures
provided were insufficient to protect any constitutionally significant property interest at
stake here.
-15-

When an inmate challenges the sufficiency of the evidence underlying his
disciplinary conviction, the requirements of due process are met when the finding
of the hearing officer is “supported by some evidence in the record.”
Superintendent, Mass. Corr. Inst. at Walpole v. Hill, 472 U.S. 445, 454 (1985).
“The fundamental fairness guaranteed by the Due Process Clause does not require
courts to set aside decisions of prison administrators that have some basis in fact.”
Id. at 456.
DePaola clearly had timely notice of the January 15, 2016, charge for
possession of a weapon and the evidentiary basis for it before the hearing on
January 29. He was also allowed to question Hall about the statement on the
charging document, and the constitutional standard in Wolff does not require the
presence of the officer or officers most directly involved in an investigation.
DePaola does not state any facts indicating that Mullins failed to act as an impartial
fact finder.

DePaola had a chance to proffer witnesses and documentation.

However, he does not provide factual support suggesting that the requested witness
statements and documentation that Mullins did not consider would have provided
relevant or material evidence on the subject of DePaola’s guilt.
Wolff does not recognize any right to note taking or appeals of disciplinary
hearings. Even if VDOC policy normally includes these features, violations of
VDOC policy does not present a federal due process issue and is not actionable
-16-

under § 1983. Riccio, 907 F.2d at 1469. Finally, DePaola’s own submissions
indicate that Mullins had some evidence in the record to support the guilty finding:
the disciplinary offense report’s statement and Hall’s testimony that the sharpened
piece of metal had been discovered in DePaola’s former cell. This evidence is
sufficient under the Hill standard for me to reject DePaola’s due process
challenges.
DePaola’s submissions also indicate that he had timely notice of the January
13, 2016, charge for disobeying a direct order and the evidentiary basis for it
before Mullins conducted the February 27, 2016, hearing. DePaola also requested
and was offered written witness statements and other documents for the hearing
and was given an opportunity to present his evidence to Mullins. The record also
indicates that DePaola received a written statement of the evidence Mullins relied
upon in his absence, namely the offense report statement and DePaola’s refusal to
attend, which refusal was a fact that Mullins considered as an admission of guilt, in
accord with VDOC policy. Thus, DePaola fails to demonstrate that he was denied
any of the Wolff protections, and I will not reverse an otherwise sufficient
disciplinary conviction because DePaola turned down the chance to be heard that
Mullins offered him. 3

3

DePaola’s complaint about having insufficient preparation time or no warning of
the hearing is without factual basis. As the warden noted in addressing his appeal, if
DePaola had attended the hearing when offered that chance, Mullins would likely have
-17-

Finally, DePaola has no viable § 1983 claim against the defendants about his
disciplinary fines being taken from moneys he received as gifts and placed in the
commissary fund. He himself chose to use the VDOC trust account system that
includes the potential for his incurring disciplinary fines.
III. Conclusion.
In conclusion, I will summarily dismiss DePaola’s Complaint under 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: July 13, 2017
/s/ James P. Jones
United States District Judge

allowed him additional preparation time, if requested, and consultation with his staff
advisor, who was present.
-18-