Thompson v. Clarke et al

Filing 47

MEMORANDUM OPINION. Signed by Senior Judge Norman K. Moon on 9/30/2018. (tvt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
PAUL C. THOMPSON,
Plaintiff,

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)
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v.
H. W. CLARKE, et al.,
Defendants.

Civil Action No. 7:17cv00111
MEMORANDUM OPINION
By: Norman K. Moon
United States District Judge

Paul C. Thompson, a Virginia inmate proceeding pro se, filed this civil rights action
pursuant to 42 U.S.C. § 1983 alleging five claims against various officials employed by the
Virginia Department of Corrections. Defendants filed a joint a motion to dismiss, and Thompson
failed to respond, making this matter ripe for disposition. 1 See Dkt. No. 16. 2 Upon review of the
record, I conclude that the defendants’ motion to dismiss must be granted in part and denied in
part.
I.

Background

Plaintiff’s allegations are as follows.
On March 26, 2015, Thompson arrived at Red Onion State Prison (ROSP).
On March 27, 2015, Thompson argued with Defendant Sergeant (Sgt.) Large about
Thompson being supplied with writing materials. Sgt. Large then escorted Thompson from cell
#414 (his cell) to cell #403 while Thompson was in his boxers, a t-shirt, socks, and tennis shoes.
Thompson alleges that Sgt. Large and/or his associates had sprayed the toilet seat in cell #403

1

Thompson requested additional time to respond to the motion to dismiss and/or motion
for partial summary judgment on November 20, 2017 (Dkt. No. 20), December 14, 2017 (Dkt.
No. 28), and March 28, 2018 (Dkt. No. 30). I denied Thompson’s last request for additional
time. See Dkt. No. 33.
2
Several other motions are pending in this case, but I will address them in separate
opinions.

with pepper spray. Thompson contends that he experienced watery, burning eyes, a burning
sensation in his skin, coughing, gagging, and difficulty breathing. Thompson wrote letters to
Warden Barksdale concerning the incident.
On April 6, 2015, Defendants Unit Manager (Mgr.) Younce, Lieutenant (Lt.) Adams, and
Sgt. Large approached Thompson at his cell door and instructed him to stop writing to the
warden. They then threatened Thompson with “negative consequences” if he continued to
contact the warden. Approximately forty-five to sixty minutes after this conversation, Defendant
Correctional Officer (C/O) Crabtree “opened the tray slot” to Thompson’s cell, “called
Thompson to the slot, and sprayed Thompson in the face” with pepper spray. Compl. ¶ 30, Dkt.
No. 1. “At the time of the incident with [C/O] Crabtree, Thompson was sitting at the desk in his
cell doing legal work. Compl. ¶ 30. Ten to fifteen minutes later, C/O Crabtree returned with
other staff and ordered Thompson to cuff-up. He was taken to the shower to wash and rinse his
face. Thompson was then taken to another cell in a different building. This cell was “filthy,
with deca[y]ed food everywhere, [and] no toilet paper.” Compl. ¶ 33. Mgr. Younce, Lt. Adams,
and Sgt. Large again approached Thompson and told him to cease writing letters to the warden.
When Thompson refused, Mgr. Younce “stated Thompson [was] short on his remaining time in
VDOC and it would be a shame for Thompson to catch a street charge and extend his
confinement.” Compl. ¶ 35. C/O Crabtree later issued a disciplinary charge, asserting that
Thompson ignored C/O Crabtree’s instructions when Thompson continued to stand on the toilet
seat and hit the sprinkler head. C/O Crabtree also averred that Thompson stated “I’m going to
flood this place.” Compl. ¶ 40.
On May 18, 2015, Offender V. Ball moved into Thompson’s cell as his cellmate. On
June 17, 2015, Ball assaulted Thompson in his cell. Ball told Thompson that Defendant Unit

2

Manager Swiney 3 had informed Ball that Thompson was reporting to Mgr. Swiney on Ball’s
activities. As a result of Ball’s assault of Thompson, Thompson experienced emotional distress
and sustained bruises to his face, a broken finger, and a disjointed and bruised thumb.
On June 3 and June 9, 2015, Thompson sent letters to Warden Barksdale concerning the
conditions of his confinement. On June 10, 2015, Thompson’s cell was searched and “staff”
removed two white binders containing legal materials. Compl. ¶ 65. The unnamed staff did not
issue Thompson a confiscation form.
On July 7, 2015, Thompson requested informal complaint forms from Defendant Sgt.
Fleming. 4 Sgt. Fleming gave Thompson the forms, but when the other staff member left the
room, Sgt. Fleming took the forms back from Thompson. Red Onion policy requires offenders
to acquire informal complaint forms from officers ranked as sergeant or above. The officers
require offenders to disclose the issue and the staff involved before passing out an informal
complaint form. Thompson alleges that if the issue involves the sergeant or their staff, they
refuse to give out the forms. Thompson also asserts that Defendants Regional Ombudsman Parr
and Grievance Coordinator (G/C) Messer improperly responded to or failed to respond to his
grievances.
Thompson arrived at ROSP on March 26, 2015, but did not receive his first shower until
March 30, 2015. Thompson did not receive his second shower at ROSP until April 11, 2015.
Thompson did not receive his personal property until April 2, 2015. Thompson was not allowed
to have outside recreation until April 13, 2015. Thompson did not receive showers or recreation
time during the week of April 19 through April 25, 2015. Thompson also complains that ROSP
staff does not allow offenders to bring their personal property to recreation inside the pod.
3
4

Mgr. Swiney is listed as “Swenney” on the court docket.
Sgt. Fleming is listed as “Flemming” on the court docket.
3

II.

Claims

Thompson asserts various constitutional and state law claims against Director Clarke,
Warden Barksdale, Ombudsman Parr, G/C Messer, IHO Mullins, Mgr. Younce, Mgr. Swiney,
Lt. Adams, Lt. Kiser, Sgt. Large, Sgt. Fleming, and C/O Crabtree. Count I alleges First and
Fourteenth Amendment violations regarding Thompson’s attempts to exercise his rights to
access the VDOC grievance procedure, the courts, and the warden; Count II alleges Eighth
Amendment cruel and unusual punishment and/or assault and battery; Count III alleges
Fourteenth Amendment due process violations; Count IV alleges state law claims of assault
and/or battery; and Count V alleges violations of Va. Const. art. I, §§ 9, 11, 12. Thompson also
appears to allege that the defendants conspired to violate his constitutional rights.
He seeks $750,000 in compensatory damages jointly and severally against the
defendants, $1.5 million in punitive damages, injunctive relief to prevent continuous injury,
emotional distress, and arbitrary retaliatory actions, costs of the lawsuit, and any other such relief
found necessary. Thompson requests a jury trial.
III.
At the threshold, Thompson is proceeding pro se and, thus, is entitled to a liberal
construction of the pleading.

See, e.g., Erickson v. Pardus, 551 U.S. 89, 90-95 (2007). 5

However, “principles requiring generous construction of pro se complaints are not . . . without
limits.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The Fourth Circuit
has explained that “though pro se litigants cannot, of course, be expected to frame legal issues
with the clarity and precision ideally evident in the work of those trained in law, neither can
district courts be required to conjure up and decide issues never fairly presented to them.” Id. at
5

This opinion omits internal quotation marks, citations, and alterations unless otherwise

noted.
4

1276; see Kalderon v. Finkelstein, Case No. 08 Civ. 9440, 2010 WL 3359473, at *1 n.1
(S.D.N.Y. Aug. 24, 2010) (“Plaintiff’s complaint belongs to the everything-but-the-kitchen sink
school of thought.” “The complaint is extremely difficult to follow because of its extreme length
and purported factual detail.

The factual allegations are often repetitive, inconsistent, and

contradicted by documents referenced in the complaint.”). 6
Defendants move to dismiss based on failure to comply with Rule 8 and Rule 20 of the
Federal Rules of Civil Procedure, Thompson’s ineligibility to file suit in forma pauperis under
28 U.S.C. § 1915, failure to state a claim on which relief may be granted, and qualified
immunity. 7 At the threshold, I will not grant the motion to dismiss for failure to comply with
Rule 8 and Rule 20—the complaint, though long and unwieldy, complies with the rules when
liberally construed because the retaliation claim encompasses all of the defendants. Further, I
will not grant the motion to dismiss based on § 1915, because the argument is not a valid basis
for dismissal under Rule 12(b)(6). See Thompson v. Clarke, No. 7:17CV00010, slip op. at n.6
(W.D. Va. March 31, 2018).

6

Thompson’s complaint is incredibly lengthy (eighty pages), repetitive, commingled, and
continuously reincorporated. See Compl. ¶¶ 83, 137, 163, 217, 238 (Thompson repeatedly
incorporates all previous allegations into the following Counts while simultaneously asserting
that he “pleads with particularity” as required by Fed. R. Civ. P. 26.). After liberally construing
the pleading, I have discussed all of the claims that I could discover.
7
The doctrine of qualified immunity will be discussed where necessary. It provides
government officials with certain protections from liability for civil damages. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity extends to protect officials “for
alleged constitutional violations stemming from their discretionary functions.” Raub v.
Campbell, 785 F.3d 876, 880-81 (4th Cir. 2015). In deciding whether a defendant is entitled to
qualified immunity, the court considers “(1) whether the plaintiff has established the violation of
a constitutional right, and (2) whether that right was clearly established at the time of the alleged
violation.” Id. at 881. A “court may address these two questions in the order . . . that will best
facilitate the fair and efficient disposition of each case.” Estate of Armstrong v. Vill. of
Pinehurst, 810 F.3d 892, 898 (4th Cir. 2016). A plaintiff’s claim “survives summary judgment,
however, only if [the court] answer[s] both questions in the affirmative.” Id.
5

IV.

Section 1983

Thompson brings several claims pursuant to 42 U.S.C. § 1983. 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 rights under the Constitution or laws of the United States. See Cooper v.
Sheehan, 735 F.3d 153, 158 (4th Cir. 2013). To state a claim under this statute, a plaintiff must
establish that he has been deprived of rights through the actions of a person or persons acting
under color of state law. Therefore, he must affirmatively state conduct or omissions by each of
the named defendants, personally, that violated his federally protected rights. 8

See, e.g.,

Garraghty v. Va. Dep’t of Corr., 52 F.3d 1274, 1280 (4th Cir. 1995); Wright v. Collins, 766 F.2d
841, 850 (4th Cir. 1985).
V.

Motion to Dismiss Under Rule 12(b)(6)

When evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court
must accept as true all well-pleaded allegations. See Vitol, S.A. v. Primerose Shipping Co., 708
F.3d 527, 539 (4th Cir. 2013); see also Erickson, 551 U.S. at 94. “While a complaint attacked by
a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s
obligation to provide the grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). Stated differently, in order to survive a motion to
dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
8

To the extent Thompson brings this action against defendants in their official capacity
for monetary damages, such claims are not cognizable under § 1983. “[N]either a State nor its
officials acting in their official capacities are ‘persons’ under § 1983.” Will v. Michigan Dep’t of
State Police, 491 U.S. 58, 70 (1989). Because the prison official defendants in their official
capacity are not “persons” who can be sued under § 1983, I must grant the defendants’ motion to
dismiss with respect to these claims.
6

A court need not “accept the legal conclusions drawn from the facts” or “accept as true
unwarranted inferences, unreasonable conclusions, or arguments.” E. Shore Mkts., Inc. v. J.D.
Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000). “Factual allegations must be enough to
raise a right to relief above the speculative level,” with all allegations in the complaint taken as
true and all reasonable inferences drawn in the plaintiff’s favor. Twombly, 550 U.S. at 555;
Chao v. Rivendell Woods, Inc., 415 F.3d 342, 346 (4th Cir. 2005). Rule 12(b)(6) does “not
require heightened fact pleading of specifics, but only enough facts to state a claim to relief that
is plausible on its face.” Twombly, 550 U.S. at 570. Making the plausibility determination is “a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679.
A. Defendants G/C Messer, Ombudsman Parr, and IHO Mullins
Thompson fails to state a claim against G/C Messer, Ombudsman Parr, and IHO Mullins.
First, Thompson’s allegations against G/C Messer and Ombudsman Parr exclusively derive from
their actions processing and responding to Thompson’s grievances. Prisoners do not have a
constitutional right to access a state’s grievance procedure or to have their grievances handled in
any particular way. See Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994); Conrad v. Akers, No.
7:10CV00560, 2011 WL 3847017, at *7 (W.D. Va. Aug. 30, 2011) (refusing to recognize a
constitutional right in the grievance procedure when “grievances were shuffled from office to
office with no permanent resolution to them”). Therefore, any alleged action by the defendants
regarding the handling of grievances cannot sustain a § 1983 claim.
Second, Thompson’s allegations against IHO Mullins are based on IHO Mullins’ role as
a hearings officer in Thompson’s disciplinary proceedings. Specifically, Thompson alleges that
his disciplinary charge was false and that he was found guilty without sufficient evidence. Any

7

claim that “would, if established, necessarily imply the invalidity of” a disciplinary conviction is
not cognizable under § 1983. Edwards v. Balisok, 520 U.S. 641, 646 (1997). For monetary
and/or injunctive relief under § 1983 based on a conviction, a plaintiff must “prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such determination, or called into question by a
federal court’s issuance of a writ of habeas corpus.” Heck v. Humphrey, 512 U.S. 477, 485
(1994).
Thompson fails to state a claim on which relief may be granted regarding IHO Mullins
because he has not alleged that his disciplinary proceeding was invalidated, and his claim is
“based on allegations of deceit and bias on the part of the decision maker that necessarily implies
the invalidity of the punishment imposed, [which] is not cognizable under § 1983.” Balisok, 520
U.S. at 648; see also Mukuria v. Mullins, No. 7:15CV00451, 2015 WL 6958343, at *2 (W.D. Va.
Nov. 10, 2015) (summarily dismissing § 1983 claims for monetary and injunctive relief based on
a disciplinary conviction while the conviction remained valid).
Therefore, Thompson fails to state a claim on which relief may be granted regarding G/C
Messer, Ombudsman Parr, and IHO Mullins, 9 and I will grant the motion to dismiss all claims
against these defendants. 10
B. Conspiracy
To any extent Thompson is attempting to allege a conspiracy, such a claim is barred by
the doctrine of intracorporate immunity. Intracorporate immunity “deems multiple defendants a
single entity for the purpose of analyzing a civil conspiracy claim if such defendants are
These defendants are also entitled to qualified immunity because, insofar as Thompson
failed to state a claim, he has also failed to establish the violation of a constitutional right. Estate
of Armstrong, 810 F.3d at 898.
10
However, I will also address the lack of personal involvement of these defendants.
9

8

employees or agents of the same entity and are acting within the scope of their
employment/agency.” Vollette v. Watson, 937 F. Supp. 2d 706, 727 (E.D. Va. 2013) (holding
that “a single entity cannot conspire with itself”). Thompson raises conspiracy allegations
against the defendants, who, at the time, were all employees or agents of the VDOC and were
acting in the scope of their employment duty to help administer and oversee the VDOC.
Therefore, I conclude that the defendants are entitled to intracorporate immunity, and I will grant
the motion to dismiss as to the conspiracy claims.
C. Count I: First and Fourteenth Amendment Claims
In Count I, Thompson alleges that Director Clarke, Warden Barksdale, Ombudsman Parr,
G/C Messer, IHO Mullins, Mgr. Younce, Mgr. Swiney, Lt. Adams, Lt. Kiser, Sgt. Large, Sgt.
Fleming, and C/O Crabtree retaliated against him and violated his First and Fourteenth
Amendment rights. Defendants submit that Count I fails to state a claim on which relief may be
granted. Count I is lengthy and its many subpart claims are commingled.
1. Retaliation
To establish a retaliation claim, a plaintiff must allege: (1) that he engaged in
constitutionally protected conduct, (2) he suffered an adverse action, and (3) that a causal link
exists between the protected conduct and the adverse action. A Soc’y Without a Name v.
Virginia, 655 F.3d 342, 350 (4th Cir. 2011).

An inmate must present more than “naked

allegations of reprisal,” Adams, 40 F.3d at 74, because “every 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). Recently, the Fourth Circuit determined
that inmates “have a First Amendment right to be free from retaliation when they [] file
[grievances].” Booker v. S.C. Dep’t of Corr., 855 F.3d 533, 542 (4th Cir. 2017).

9

“A plaintiff suffers adverse action if the defendant’s allegedly retaliatory conduct would
likely deter a person of ordinary firmness from the exercise of [the protected] rights.”
Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005).
This objective inquiry examines the specific facts of each case, taking into account the actors
involved and their relationship. Balt. Sun Co. v. Ehrlich, 437 F.3d 410, 416 (4th Cir. 2006).
Because “conduct that tends to chill the exercise of constitutional rights might not itself deprive
such rights, . . . a plaintiff need not actually be deprived of [his] First Amendment rights in order
to establish . . . retaliation.” Constantine, 411 F.3d at 500. Nonetheless, “the plaintiff’s actual
response to the retaliatory conduct provides some evidence of the tendency of that conduct to
chill such activity.” Id.
The test for causation requires an inmate to show that, but for the exercise of the
protected right, the alleged retaliatory act would not have occurred. Peterson v. Shanks, 149
F.3d 1140, 1144 (10th Cir. 1998). An inmate experiencing an adverse action shortly after a
correctional officer learns that the prisoner engaged in a protected activity may create an
inference of causation, but, generally, mere temporal proximity is “simply too slender a reed on
which to rest a Section 1983 retaliatory [] claim.” Wagner v. Wheeler, 13 F.3d 86, 91 (4th Cir.
1993); see also Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (finding an inference
of causality only if “the temporal proximity [is] very close”). “The Fourth Circuit has not set
forth a specific timeframe for what constitutes very close.” Bowman v. Balt. City Bd. of Sch.
Comm’rs, 173 F. Supp. 3d 242, 250 (D. Md. 2016). Nevertheless, even if the temporal proximity
is insufficient to create an inference of causation, “courts may look to [events that might have
occurred during] the intervening period for other evidence of retaliatory animus.” Lettieri v.
Equant, Inc., 478 F.3d 640, 650 (4th Cir. 2007).

10

i.

Defendants Director Clarke, Warden Barksdale, Ombudsman Parr, G/C
Messer, IHO Mullins, and Lt. Kiser

Thompson fails to adequately allege personal involvement on behalf of Defendants
Director Clarke, Warden Barksdale, Ombudsman Parr, G/C Messer, IHO Mullins, and Lt. Kiser.
Liability in a civil rights case is “personal, based upon each defendant’s own constitutional
violations.” Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001). “A public officer or agent is
not responsible for the misfeasances or positive wrongs, or for the nonfeasances, or negligences,
or omissions of duty, of the sub-agents or servants or other persons properly employed by or
under him, in the discharge of his official duties.” Robertson v. Sichel, 127 U.S. 507, 515-16
(1888); see also Mandsager v. Univ. of N.C. at Greensboro, 269 F. Supp. 2d 662, 678 (M.D.N.C.
2003) (granting 12(b)(6) motion to dismiss a § 1983 civil rights action for failing to allege
personal liability). In his complaint, Thompson nakedly asserts that Defendants Director Clarke
and Warden Barksdale “ordered” their subordinates to retaliate against Thompson. Such a
conclusory statement with no specific supporting factual allegations is not entitled to be
considered true. See Iqbal, 556 U.S. at 678. Further, Thompson does not plausibly allege a
retaliation claim against these defendants because he does not assert that they had any
involvement in specific retaliatory acts regarding Thompson’s First Amendment rights. None of
these defendants had any personal relation to the alleged retaliation-based events of March 27,
April 6, June 10, or June 17, 2015.
Without direct involvement, the only remaining basis for suit against these defendants
would be under respondeat superior, which is not available in § 1983 actions. Iqbal, 556 U.S. at
676 (holding no vicarious liability in § 1983 case).

11

However, the Fourth Circuit has held that supervisory liability may exist under § 1983 if
a plaintiff can establish three elements: (1) “that the supervisor had actual or constructive
knowledge that his subordinate was engaged in conduct that posed a pervasive and unreasonable
risk of constitutional injury to citizens like the plaintiff”; (2) “that the supervisors response to
that knowledge was so inadequate as to show deliberate indifference to or tact authorization of
the alleged offensive practices”; and (3) “that there was an affirmative causal link between the
supervisor’s inaction and the particular constitutional injury suffered by the plaintiff.” Shaw v.
Stroud, 13 F.3d 791, 799 (4th Cir. 1994).
To establish a pervasive and unreasonable risk of harm, the plaintiff must present
evidence “that the conduct is widespread, or at least has been used on several different occasions
and that the conduct engaged in by the subordinate poses an unreasonable risk of harm or
constitutional injury.” Wilkins v. Montgomery, 751 F.3d 214, 226 (4th Cir. 2014). The second
element requires that a plaintiff “demonstrate a supervisor’s continued inaction in the face of
documented widespread abuses.” Id. Lastly, “proof of causation may be direct . . . or may be
supplied by the tort principle that holds a person liable for the natural consequences of his
actions.” Id. at 226-27.
Thompson has not adequately alleged knowledge of widespread conduct, a pervasive risk
of constitutional injury, an inadequate response, or an affirmative causal link between the
defendant supervisors’ inaction and the particular constitutional injury he suffered. Therefore,
Thompson fails to state a retaliation claim against Defendants Director Clarke, Warden

12

Barksdale, Ombudsman Parr, G/C Messer, IHO Mullins, and Lt. Kiser. 11 Accordingly, I will
grant the motion to dismiss as to the retaliation claims against them.
ii.

Defendants Mgr. Younce, Mgr. Swiney, Lt. Adams, Sgt. Large, Sgt. Fleming,
and C/O Crabtree

As for Defendants Mgr. Younce, Mgr. Swiney, Lt. Adams, Sgt. Large, Sgt. Fleming, and
C/O Crabtree, Thompson adequately pleads a retaliation claim. First, he sufficiently alleges that
he engaged in constitutionally protected conduct: he has a constitutional right to not be retaliated
against for accessing the grievance procedure, the warden, and/or the courts. See Booker, 855
F.3d at 542. Second, he has adequately stated that he suffered an adverse action. He contends
that defendants variously pepper sprayed him, deprived of him informal complaints and/or legal
materials, moved him into a cell that had pepper or OC spray on the toilet, caused him to be
assaulted by another inmate, and charged him with a false disciplinary infraction. Certainly,
prison officials pepper spraying an inmate, making his cell unsafe, refusing to provide needed
materials, and fraudulently disciplining Thompson would tend to discourage him from exercising
his rights.
Third, Thompson asserts that multiple defendants ordered their subordinates to “target
[him] for punishment and retribution as a means to retaliate” against him. Compl. ¶ 106.
Specifically, on March 27, 2015 Thompson requested writing materials to update the courts of
his transfer to ROSP, and Sgt. Large argued with Thompson about the materials, refused to
provide the materials, and moved Thompson to a cell that had OC or pepper spray on the toilet.
Thompson later wrote to the warden to complain about the events of March 27, 2015. On April

These defendants are also entitled to qualified immunity because, insofar as Thompson
failed to state a claim, he has also failed to establish the violation of a constitutional right. Estate
of Armstrong, 810 F.3d at 898.
11

13

6, 2017, defendants Mgr. Younce, Lt. Adams, and Sgt. Large confronted Thompson and
demanded that he cease contacting the warden.
Thompson.

When Thompson refused, they threatened

According to Thompson, less than an hour after the confrontation with Mgr.

Younce, Lt. Adams, and Sgt. Large, C/O Crabtree called for Thompson, opened the tray slot, and
sprayed Thompson in the face with OC spray. Further, after C/O Crabtree and other staff took
Thompson to the shower, Thompson was escorted 12 to an unsanitary cell where he had to eat
lunch and dinner. In the evening, Thompson returned to his cell, but Mgr. Younce, Lt. Adams,
and Sgt. Large again confronted Thompson and “admonished” him to stop writing to the warden.
When Thompson “flat-out refused” to do so, Mgr. Younce again threatened Thompson.
Later on April 6, 2017, C/O Crabtree filed a disciplinary charge against Thompson which
states that he OC sprayed Thompson because Thompson was attempting to set off the sprinkler.
Thompson disputes the charge, stating multiple reasons why he would not have wanted to set off
the sprinkler, including the personal property, legal materials, and law books in the cell at the
time. Thompson also complains that the defendants regularly denied him showers, recreation
time, materials necessary to file informal complaints, grievances, and court pleadings during the
period from March 27, 2015 to mid-April, 2015. 13 Furthermore, Thompson asserts that, after he
again contacted the warden on June 3 and 9, 2015, his cell was “shaken down” on June 10, and
ROSP staff confiscated legal materials. Thompson also alleges that Mgr. Swiney encouraged
Offender Ball to hurt him, and that Sgt. Fleming refused to provide and/or seized Thompson’s
grievance procedure forms.

12

Thompson does not specifically allege that any of the defendants brought him to the
unsanitary cell. Compl. ¶ 33.
13
He alleges that the defendants refused to provide informal complaint forms until after
the thirty-day statute of limitations period expired under VDOC policy.
14

Construing Thompson’s complaint liberally and taking his allegations as true, 14 he
adequately states a retaliation claim against Defendants Mgr. Younce, Mgr. Swiney, Lt. Adams,
Sgt. Large, Sgt. Fleming, and C/O Crabtree. Thompson alleges (1) the defendants had personal
knowledge that Thompson was exercising his right to not be retaliated against for participating in
the grievance system, contacting the warden, and litigating in the courts, (2) the defendants
personally sought to prevent him from exercising his rights, and (3) there is “suspect timing” and
“close temporal proximity” because the defendants’ alleged adverse actions and threats all
occurred within a two-and-a-half month span of the protected conduct. See, e.g., King v.
Rumsfeld, 328 F.3d 145, 151, n.5 (4th Cir. 2003) (finding that a two-and-a-half month gap
between protected activity and an adverse action was sufficiently narrow to establish the
causation prong of the prima facie case solely on the basis of temporal proximity); Larry v.
Marion Cty. Coal Co., 302 F. Supp. 3d 763, 775 (N.D. W. Va. 2018) (asserting plaintiff
established prima facie case of retaliation when adverse action occurred within two months of
protected conduct). Therefore, I conclude that Thompson has properly stated a retaliation claim
against Defendants Mgr. Younce, Mgr. Swiney, Lt. Adams, Sgt. Large, Sgt. Fleming, and C/O
Crabtree. 15
2. Access to the Courts

14

Defendants argue that Thompson’s allegations are almost entirely legal conclusions
which are not entitled to be taken as true. However, although he does sprinkle in a great deal of
conclusory statements into his allegations, his factual assertions are enough to adequately state a
retaliation claim against these defendants.
15
The defendants are not entitled to qualified immunity because Thompson’s First
Amendment rights were clearly established at the time of the violations. See Booker, 855 F.3d at
542-44 (holding that the First Amendment right not to be retaliated against for participating in
the grievance procedure was clearly established by 2012).
15

Thompson also argues that Defendants’ retaliation unconstitutionally restricted his First
Amendment right of access to the courts. 16 Prisoners have a fundamental right to “adequate,
effective, and meaningful” access to the courts. Bounds v. Smith, 430 U.S. 817, 822 (1977). To
prove that a prisoner has been denied this right, a prisoner must show that he has suffered an
“actual injury” because of the restrictions imposed upon him. Strickler v. Waters, 989 F.2d
1375, 1382 (4th Cir. 1993). The requirement of “actual injury” means the deprivation “actually
prevented [plaintiff] from meeting deadlines, or otherwise prejudiced him in any pending
litigation, or actually impeded his access to the courts.” Oswald v. Graves, 819 F. Supp. 680,
683 (E.D. Mich. 1993).
Thompson has not alleged that he has suffered an actual injury. He has actively litigated
in several suits both in this district and in the Eastern District of Virginia, filing complaints,
motions, affidavits, and other documents. 17 The only “injuries” that Thompson alleges are that
the defendants’ actions denied him the possibility of exhausting his administrative remedies, and
“caused [him] to give serious consideration of not exercising his First and Fourteenth
Amendment rights.” Compl. ¶¶ 110, 119. Such bare and unspecific allegations cannot sustain a
claim for denial of access to the courts. Furthermore, he has not incurred any actual injury
regarding his inability to exhaust his administrative remedies because his failure has been

16

Thompson also appears to allege that the defendants violated his right of access to the
warden and to the grievance procedure. However, neither are protected constitutional rights.
See Kinlock v. Myers, No. 2:15CV00702, 2017 WL 9471789, at *15 (D.S.C. July 27, 2017)
(“There is not an independent constitutional right to have a letter or complaint answered by a
prison warden.”); Adams v. Rice, 40 F.3d at 75 (no constitutional right to grievance procedure).
17
Thompson is a busy litigator. He has filed several § 1983 suits, including: in the
Eastern District: Thompson v. Dolan, No. 2:12CV00209; Thompson v. Clarke, No.
2:14CV00086; and Thompson v. Clarke, No. 2:15CV00439; and in the Western District:
Thompson v. Clarke, No. 7:14CV00053; Thompson v. Clarke, No. 7:17CV00010; Thompson v.
Clarke, No. 7:17CV00111; and Thompson v. Younce, No. 7:17CV00543.
16

excused by the court. 18 Because Thompson fails to allege that he has suffered an actual injury
that prejudiced him in any pending litigation or actually impeded his access to the courts, I
conclude that he has failed to state a claim and will grant the motion to dismiss as to all
defendants on this claim. 19
D. Count II: Eighth Amendment Claim
Thompson alleges that Defendants Director Clarke, Warden Barksdale, Ombudsman
Parr, G/C Messer, IHO Mullins, Mgr. Younce, Mgr. Swiney, Lt. Adams, Lt. Kiser, Sgt. Large,
Sgt. Fleming, and C/O Crabtree violated his Eighth Amendment rights when they: failed to
protect him (Count II(a)), used excessive force against him (Count II(b)), and subjected him
cruel and unusual punishment regarding his living conditions (Count II(c)). Defendants Director
Clarke, Warden Barksdale, Ombudsman Parr, G/C Messer, IHO Mullins, Lt. Kiser, and Sgt.
Fleming move to dismiss Count II as it relates to them, stating that Thompson fails to allege
adequate levels of personal involvement. They are correct, and I will grant their motion to
dismiss regarding this claim.
The “core judicial inquiry” of an Eighth Amendment claim is “the nature of the force—
specifically, whether it was nontrivial and was applied . . . maliciously and sadistically to cause
harm.” Wilkins v. Gaddy, 559 U.S. 34, 39 (2010). To establish a failure to protect claim, an

18

Thompson also appears to allege in his many motions that ROSP staff are delivering
his legal materials late and delaying his medical treatment in order to chill his First Amendment
right of access to the courts. However, Thompson still fails to allege an actual injury; he failed
to file a response to the motion to dismiss and the motion for summary judgment despite having
nearly three months to do so. He has not plausibly alleged that the defendants kept his legal mail
from him and sequestered him in the medical department for the entire three months.
Regardless, he has not plausibly alleged that any defendant in this action has had personal
involvement with any interference with his access to the courts.
19
These defendants are also entitled to qualified immunity because, insofar as Thompson
failed to state a claim, he has also failed to establish the violation of a constitutional right. Estate
of Armstrong, 810 F.3d at 898.
17

inmate must allege that prison officials were deliberately indifferent to “specific known risks of
[] harm.” Pressly v. Hutto, 816 F.2d 977, 979 (4th Cir. 1987).
Thompson alleges that Sgt. Large and/or unnamed subordinates put pepper spray on the
toilet of the cell Thompson was moved to, C/O Crabtree sprayed him in the face with pepper
spray, and Mgr. Swiney told offender Ball that Thompson was informing on him, which resulted
in Ball assaulting Thompson. Thompson does not allege any direct or personal involvement of
Defendants Director Clarke, Warden Barksdale, Ombudsman Parr, Lt. Kiser, or Sgt. Fleming.
Instead, Thompson merely asserts that these defendants “ordered their subordinates” to retaliate
against him. Even construing Thompson’s complaint liberally, Thompson fails to plausibly
allege an Eighth Amendment claim against these defendants, because such a naked and
conclusory allegation with no specific factual support is not entitled to be taken as true. See
Iqbal, 556 U.S. at 679. Therefore, Thompson fails to state an Eighth Amendment claim as to
Defendants Director Clarke, Warden Barksdale, Ombudsman Parr, Lt. Kiser, and Sgt. Fleming.
These defendants are entitled to qualified immunity, and I will grant their motion to dismiss
Count II.
E. Count III: Due Process Claim
In Count III, Thompson names Director Clarke, Warden Barksdale, Ombudsman Parr,
Mgr. Younce, Mgr. Swiney, Lt. Adams, Lt. Kiser, Sgt. Large, Sgt. Fleming, and C/O Crabtree.
The defendants jointly move to dismiss the allegations for failure to state a claim.
1. Generalized Substantive Due Process
In Count III, Thompson “incorporates” all of his complaint’s previous 162 paragraphs
into his due process claim. See Compl. ¶ 163. However, “where a particular Amendment
provides an explicit textual source of constitutional protection against a particular sort of

18

government behavior, that Amendment, and not the more generalized notion of substantive due
process, must be the guide for analyzing these claims.” Albright v. Oliver, 510 U.S. 266, 273
(1994).

Therefore, Thompson cannot successfully raise a substantive due process claim

regarding the same governmental conduct underlying his First and Eighth Amendment claims in
Counts I and II. Specifically, his allegations that he suffered retaliation and cruel and unusual
punishment are squarely addressed pursuant to the analytical frameworks of the First and Eighth
Amendments. Therefore, I will grant the motion to dismiss as to the substantive due process
claims in Count III.
2. Procedural Due Process
To prevail on a procedural due process claim, Thompson “must first demonstrate that [he
was] deprived of life, liberty, or property by governmental action.” Beverati v. Smith, 120 F.3d
500, 502 (4th Cir. 1997). To sustain such a claim as an inmate, Thompson must demonstrate that
the conditions imposed constitute “atypical and significant hardships on inmates in relation to the
ordinary incidents of prison life.”

McKune v. Lile, 536 U.S. 24, 37 (2002).

Construing

Thompson’s complaint liberally, he appears to allege two procedural due process claims: (1) the
confiscation of two binders of legal materials deprived him of a protected property interest; and
(2) denials of showers and outside recreation time deprived him of a protected liberty interest.
Both claims fail to state a claim on which relief may be granted.
First, “for intentional, as for negligent deprivations of property by state employees, the
state’s action is not complete until and unless it provides or refuses to provide a suitable
postdeprivation remedy.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). The Supreme Court has
also determined that (1) the proper remedy for intentional deprivation of property by state actors
was a suit in tort; (2) suits for intentional torts by Virginia state actors were not barred by

19

sovereign immunity; and (3) Virginia state tort remedies are generally adequate. See id. at 53336. Thompson asserts that prison officials confiscated his binders, but he fails to allege that the
state failed to provide him with an adequate postdeprivation remedy. Thompson’s adequate
postdeprivation remedy would have been to file a tort claim for improper deprivation of
property. See id. at 535 (agreeing with the district court’s finding that the proper remedy for
intentional deprivation of property by a state employee was a tort claim under Virginia law). He
failed to file such a lawsuit, and he has not alleged that the remedy was unavailable to him. 20
Therefore, Thompson has failed to allege a violation of a protected property interest.
Second, the occasional denial of showers and/or outside recreation time do not state a due
process claim. See Rivera v. Mathena, No. 7:16CV00346, 2017 WL 34585012 at *6-7 (W.D.
Va. Aug. 14, 2017) (rejecting the contention that “occasionally being denied showers and outside
recreation sessions constitutes an atypical and significant hardship” for an inmate compared to
normal prison conditions); DePaola v. Clarke, No. 7:17CV00028, 2017 WL 2984144, at *4
(W.D. Va. July 13, 2017) (concluding that inmates do not have a protected liberty interest in
outside recreation “with specific frequency”). Thompson alleges that he did not have his first
shower until four days after arrival at ROSP, his second shower followed twelve days later, he
was denied showers for a week period shortly after, and that he had no outside recreation time
until over two weeks after his transfer. I reject Thompson’s contention that the short-term denial
of Thompson’s showers and outside recreation time violated a protected liberty interest.
Although it is unfortunate that Thompson was unable to shower for several days in a row, such

20

To the extent that Thompson’s Fourteenth Amendment claim is based on an unnamed
prison employee’s failure to issue him a confiscation form in violation of VDOC policy,
allegations of prison policy violations do not state a due process claim. See United States v.
Caceres, 440 U.S. 741, 752-55 (1978).
20

deprivations were “occasional,” and were not “atypical and significant hardships.” See Rivera,
2017 WL 34585012, at *6-7; McKune, 536 U.S. at 37.
Therefore, Thompson fails to allege a Fourteenth Amendment due process claim on
which relief may be granted. The defendants are entitled to qualified immunity, and I will grant
the motion to dismiss as to Count III.
F. Counts IV and V: State Law Claims
Thompson attempts to raise claims under Virginia state law and the Virginia
Constitution.

Specifically, Thompson alleges state law claims of assault in Count IV and

Virginia Constitution violations in Count V. However, the statute of limitations for Virginia
state law claims brought by incarcerated individuals has expired.
Generally, a statute of limitations argument would be an affirmative defense, not properly
raised in a motion to dismiss pursuant to Rule 12(b)(6). See Fed. R. Civ. P. 8(c); Goodman v.
Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007). However, “if all facts necessary to the
affirmative defense clearly appear on the face of the complaint,” then a court may address the
affirmative defense pursuant to Rule 12(b)(6). Goodman, 494 F.3d at 464. Virginia requires an
inmate confined in a state or local correctional facility to bring a personal action relating to the
conditions of his confinement within a year after the cause of action accrues or within six months
after all administrative remedies are exhausted, whichever occurs later. Va. Code § 8.01-243.2;
see also Thompson v. Clarke, No. 7:17CV00010, 2018 WL 1955423, at *8 (W.D. Va. April 25,
2018) (applying Va. Code § 8.01-243.2 to state law claims, including assault and violations of
the Virginia Constitution, in one of Thompson’s many prior cases). The alleged state law
violations occurred in 2015. Thompson did not exhaust his administrative remedies, so the

21

statute of limitations ran for one year, until 2016. Thompson did not file the present lawsuit until
2017. Therefore, I will grant the motion to dismiss Counts IV and V as time-barred. 21
VI.

Conclusion

For the foregoing reasons, I will deny the motion to dismiss as to the First Amendment
retaliation claims (Count I) against Mgr. Younce, Mgr. Swiney, Lt. Adams, Sgt. Large, Sgt.
Fleming, and C/O Crabtree, but grant the motion to dismiss as to these defendants on all other
claims. 22 Further, I will grant the motion to dismiss as to all claims against Director Clarke,
Warden Barksdale, G/C Messer, Ombudsman Parr, IHO Mullins, and Lt. Kiser.
An appropriate order will be entered this day.
ENTER this ____ day of September, 2018.
30th

21

Thompson also fails to demonstrate that he is entitled to equitable tolling. See Cruz v.
Maypa, 773 F.3d 138, 146-47 (4th Cir. 2014) (Equitable tolling “is appropriate in two
circumstances: first, when the plaintiffs were prevented from asserting their claims by some kind
of wrongful conduct on the part of the defendant, and second, when extraordinary circumstances
beyond plaintiffs’ control made it impossible to file the claims on time.”).
22
Mgr. Younce, Mgr. Swiney, Lt. Adams, Sgt. Large, and C/O Crabtree filed a separate
motion for summary judgment as to Count II, and are not included in the motion to dismiss on
that count.
22