Boggs v. Hembree et al
Filing
61
MEMORANDUM OPINION. Signed by Magistrate Judge Pamela Meade Sargent on 11/14/2018. (tvt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
)
)
)
)
v.
)
MAJOR GEORGE HEMBREE, et al., )
)
Defendants.
)
JEREMY MICHAEL BOGGS,
Plaintiff,
Civil Action No. 7:17cv00426
MEMORANDUM OPINION
By: Hon. Pamela Meade Sargent
United States Magistrate Judge
Jeremy Michael Boggs, (“Boggs”), an inmate previously housed in the
Southwest Virginia Regional Jail, (“SWVRJ”), in Duffield, Virginia, filed this case
pursuant to 42 U.S.C. § 1983. By Amended Complaint, (Docket Item No. 34),
Boggs sues SWVRJ employees Major George Hembree, Captain Brian Parks,
Sergeant Justin Dockery, Sergeant Todd Elam and Officer Lawson. Boggs also
sues Laura Summers and Mediko, Inc.,1 (“Mediko”).
This matter is before the court on the Motion To Dismiss filed by the
defendants Hembree and Parks, (Docket Item No. 39), the Motion To Dismiss filed
by the defendants Dockery, Elam and Lawson, (Docket Item No. 51), Defendant
Laura Summers, QMHP’s Motion For Summary Judgment, (Docket Item No. 52),
and Defendant Mediko, PC’s Motion For Summary Judgment, (Docket Item No.
54) (collectively, “Motions”). The plaintiff has responded to the Motions, (Docket
Item No. 57), and various defendants have filed replies, (Docket Item Nos. 59, 60).
Therefore, the Motions are ripe for decision.
1
In his Amended Complaint, Boggs sued “Medico, Inc.” On its waiver of service form,
this entity identified itself as Mediko, PC. (Docket Item No. 43.)
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I. Facts
In his Amended Complaint, Boggs alleged that defendants Hembree and
Parks kept him in segregation resulting in long-term psychological issues that
continue to require treatment. Boggs also alleged that Hembree and Parks were
deliberately indifferent toward him. Boggs alleged that defendants Dockery, Elam
and Lawson sexually harassed him by calling him a “faggot” and a “white
supremacist,” making a “limp wristed Hitler salute” to him and cursing him. He
also alleged that one of the defendants made a gesture by grabbing his own groin.
He alleged that the the jail employees’ actions attempted to intimidate him because
of his sexual preference, causing him mental and emotional anxiety. Boggs further
alleged that defendants Summers and Mediko denied him mental health treatment
and even instructed him to stop writing them with requests for help. Boggs seeks
monetary damages.
Summers has filed an affidavit in support of her motion for summary
judgment. (Affidavit of Laura Summers, MA, QMHP, (Docket Item No. 53-1)
(“Summers Affidavit”)). In this affidavit, Summers stated that she has a master’s
degree in human services and is a Qualified Mental Health Professional,
(“QMHP”). (Summers Affidavit at 1.) Summers stated that she has worked with
the Virginia Department of Corrections, (“VDOC”), as an independent contractor
providing mental health care and treatment to inmates housed at SWVRJ since
April 18, 2016. (Summers Affidavit at 1.) Summers stated that, to make a request
to be seen by mental health staff at SWVRJ, an inmate submits a request through a
kiosk in his room. (Summers Affidavit at 2.) Summers said that these requests are
then processed and answered by members of the medical staff. (Summers Affidavit
at 2.)
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Summers stated that Boggs was incarcerated at SWVRJ beginning on May
21, 2016. (Summers Affidavit at 2.) She said that Boggs submitted his first request
for a mental health evaluation on January 3, 2017, and she answered Boggs’s
request within 24 hours and informed him that he had been placed on the list to be
seen by the coordinator. (Summers Affidavit at 2.) Summers said that Boggs sent a
second request on January 8, 2017, asking if he was on the list to be seen, and she
responded the following day, advising him that he would first be seen by the
coordinator. (Summers Affidavit at 2.) Boggs submitted a third request on January
12, 2017, Summer said, and, within an hour of his request, she asked him about his
specific complaints. (Summers Affidavit at 2.) Summers said that Boggs responded
five days later on January 17, 2017, that he “need[ed] someone to talk to.”
(Summers Affidavit at 2.)
Summers said that she, subsequently, visited Boggs later in the day on
January 17, and he told her that he was being transferred to a different correctional
facility and that he did not wish to see the psychiatrist at SWVRJ. (Summers
Affidavit at 2.) Summers said that she told Boggs that he could request to be seen
again in the future if he returned to SWVRJ. (Summers Affidavit at 2.) A Mental
Health Sick Call record dated January 17, 2017, and attached to Summers’s
affidavit documented this interaction. (Summers Affidavit at 44.) On February 28,
2017, Boggs filed another request stating that he had requested help on January 17,
2017, and that he had not been seen and his post-traumatic stress disorder was
getting worse. (Summers Affidavit at 2.) Summers said that she replied to Boggs
on March 2, 2017, telling him that he needed to renew his request to be seen by the
psychiatrist. (Summers Affidavit at 2.) She said that Boggs submitted this request
on March 4, 2017, and she informed him that he would be placed on the list.
(Summers Affidavit at 2.) She said Boggs submitted another similar request later
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on the same day, and she, again, informed him that he was on the list to be seen.
(Summers Affidavit at 3.)
Summers stated she requested Boggs to come to mental health for an
assessment on April 10, 2017. (Summers Affidavit at 3.) She said that Boggs
refused and wrote “problem solved” on his refusal form. (Summers Affidavit at 3.)
Summers said Boggs escaped while he was on work release during the summer of
2017. (Summers Affidavit at 3.) She said that he eventually was found and rebooked into SWVRJ. (Summers Affidavit at 3.) Boggs submitted two duplicate
requests for a mental health consult on July 14, 2017, she said. (Summers Affidavit
at 3.) Summers said that she placed Boggs on the list to be seen and assured him
that he would be seen as soon as possible. (Summers Affidavit at 3.) She said
Boggs filed this lawsuit against her on July 29, 2017. 2
Summers said that she saw Boggs on August 7, 2017, and he complained of
depression, poor sleep, nightmares and panic. (Summers Affidavit at 3.) Summers
said she recommended that Boggs be prescribed medication for depression and
submitted a referral for him to see the psychiatrist. (Summers Affidavit at 3.) As a
QMHP, Summers said, she cannot prescribe medications, but, instead, makes
recommendations to the psychiatrist based upon her assessments. (Summers
Affidavit at 3.) Summers said that, after the August 7 appointment with Boggs, he
submitted four additional requests about needing to see the psychiatrist and she
2
The court’s record reflects that Boggs filed this suit on September 13, 2017, and that
Summers was not added as a party defendant in this case until Boggs filed the Amended
Complaint on February 28, 2018. Boggs did file an earlier action against Summers on August 9,
2017, (Civil Action No. 7:17cv00032), which was dismissed without prejudice on February 20,
2018.
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responded to each request with an “assurance” that he was on the list to be seen.
(Summers Affidavit at 3.)
Summers said the psychiatrist evaluated Boggs on October 24, 2017.
(Summers Affidavit at 3.) Since his initial meeting with the psychiatrist, Summers
said, Boggs had submitted six kiosk requests, to each of which she had timely
responded. (Summers Affidavit at 3.) She said that SWVRJ inmates were
scheduled to be seen for follow-up appointments with the psychiatrist every 90
days. (Summers Affidavit at 3.) Summers stated that Boggs was scheduled to be
seen for his follow-up appointment in mid-January 2018. (Summers Affidavit at 3.)
Summers said she personally visited and assessed Boggs on January 17,
2017, and, again, on August 8, 2017. (Summers Affidavit at 4.) She said that
Boggs refused her assessments on two other occasions. (Summers Affidavit at 4.)
Summers said that Boggs visited the psychiatrist on October 24, 2017, and that,
since that date, he continued to submit requests via the kiosk, to which she
responded. (Summers Affidavit at 4.) She stated that she was never deliberately
indifferent to any of Bogg’s medical needs. (Summers Affidavit at 4.)
Summers attached Boggs’s mental health records to her affidavit. (Summers
Affidavit at 5-109.) These records contain a May 23, 2016, Admission Medical
History and Physical, which stated that Boggs was not then taking any
psychotropic medication. (Summers Affidavit at 5.) This report also noted that
Boggs denied any thoughts of suicide or suicide attempts in the past. (Summers
Affidavit at 7.) It also noted that Boggs denied ever being treated for any mental
health problems. (Summers Affidavit at 7.) These records also contain a July 6,
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2017, Receiving Screening, on which Boggs indicated that he was then
experiencing depression. (Summers Affidavit at 16.)
A Brief Jail Mental Health Screen form dated July 6, 2017, noted that Boggs
made no mental health complaints. (Summers Affidavit at 52.) It also stated that
Boggs denied ever being in a hospital for emotional or mental health problem.
(Summers Affidavit at 52.)
These records also contain an August 1, 2017, Mental Health Sick Call note
stating that Boggs had written Summers telling her to “do her job.” (Summers
Affidavit at 44.) Summers noted that she spoke with Boggs, who was aggravated
and angry, and she explained the mental health waiting list process to him.
(Summers Affidavit at 44.) She noted that Boggs said he had sent messages to
mental health each month that were ignored. (Summers Affidavit at 44.) Summers
noted that she reviewed the messages she had received from Boggs, and she found
she had responded to each message; she also stated that Boggs had not submitted
any requests from March to July 11, 2017. (Summers Affidavit at 44.) Summers
also noted that she had requested Boggs to come to mental health to see her on
April 10, 2017, but Boggs signed a refusal form, stating “problem solved.”
(Summers Affidavit at 44.)
A Mental Health Sick Call note dated August 7, 2017, stated that Summers
evaluated Boggs on that date and assessed him with an adjustment disorder.
(Summers Affidavit at 43.) Summers noted that she scheduled Boggs to see the
psychiatrist. (Summers Affidavit at 43.) The Mental Health Appraisal form from
this date stated that Boggs complained of being very depressed, difficulty getting
out of bed, not sleeping well, nightmares, anxiety, panic attacks and feeling
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claustrophobic. (Summers Affidavit at 46.) Boggs denied having any suicidal or
homicidal ideations or hallucinations. (Summers Affidavit at 46.) Boggs stated that
he also experienced loss of interest, racing thoughts, restlessness and apprehension.
(Summers Affidavit at 47.)
Boggs reported being diagnosed previously with bipolar disorder. (Summers
Affidavit at 46.) On this occasion, Boggs stated that he previously had received
both inpatient and outpatient mental health treatment and medication. (Summers
Affidavit at 48.) He stated that he had been treated at The Laurels, in Lebanon,
Virginia, the previous year and was prescribed Suboxone and something for
anxiety. (Summers Affidavit at 48.) On this occasion, Boggs stated that he had a
history of abusing methamphetamine and cocaine. (Summers Affidavit at 48.)
Summers noted that Boggs’s appearance, behavior, speech, mood, thought
processes, perceptions and cognitive functioning were all within normal limits.
(Summers Affidavit at 49-50.) She noted that Boggs had fair judgment/insight, and
she diagnosed Boggs as suffering from an adjustment disorder. (Summers
Affidavit at 50.) She scheduled a consult for Boggs with the psychiatrist.
(Summers Affidavit at 50.)
A Psychiatry Progress Note dated October 24, 2017, documented that Dr.
Bruce Stevens, M.D., evaluated Boggs on that date. (Summers Affidavit at 53-55.)
Dr. Stevens noted that this was Boggs’s initial psychiatric evaluation. (Summers
Affidavit at 53.) He stated that Boggs was serving a sentence for felony eluding
when he became high on methamphetamine while on work release and escaped.
(Summers Affidavit at 53.) Dr. Stevens noted that Boggs provided a history of
polysubstance dependence, including benzodiazepines, cocaine, methamphetamine
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and stimulants and a previous diagnosis of bipolar disorder. (Summers Affidavit at
53.) Dr. Stevens noted that he reviewed Boggs’s medical, social and family history
with the QMHP. (Summers Affidavit at 53.) Dr. Stevens also noted that Boggs was
alert, well-groomed, cooperative, with appropriate behavior, normal rate, quantity
and quality of speech, depressed and anxious mood, euthymic and constricted
affect, logical/linear, goal-directed thought processes and no delusional thought
content or hallucinations. (Summers Affidavit at 53-54.) Dr. Stevens diagnosed
polysubstance dependence, adjustment disorder with depression and anxiety
disorder. (Summers Affidavit at 55.) He stated that Boggs did not exhibit evidence
of bipolar disorder. (Summers Affidavit at 55.) He prescribed Pamelor for
depression and noted that Boggs should follow up with him in three months.
(Summers Affidavit at 55.)
These records also support Summers’s statements regarding her communications through the kiosk with Boggs. These records also contained an
October 28, 2017, communication from Boggs that stated that his “meds are not
doing anything for my anxiety… please help me.” (Summers Affidavit at 35.)
Mental health responded, “You’ve not even taken the medication for a week. It
often takes 4-6 weeks or longer for the medication to get into your system.”
(Summers Affidavit at 35.) On November 3, 2017, Boggs wrote:
I have been on nortriptyline 100 mg for a month. I apologize if I am
an inconvenience or a pain[.] I have only had mental problems from
my ptsd [post-traumatic stress disorder] previously from Tuesday
September 11th and the events I witnessed. I have been having
horrible graphic nightmares about death and disaster all around me
and awake shaking in a cold sweat….
(Summers Affidavit at 36.) Mental health responded:
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Mr. Boggs, you were on Nortriptyline 50 mg and the psychiatrist
increased it to 100 mg. It takes several weeks to fully get into your
system. Right now, this is all that you will be prescribed per the
psychiatrist. We can discuss any changes during your follow up
appointment with him.
(Summers Affidavit at 36.)
On November 17, 2017, Boggs asked to be placed on the list to see mental
health, and he was informed he already had an appointment scheduled. (Summers
Affidavit at 37.) On December 27, 2017, Boggs inquired when he would get to see
mental health or the psychiatrist; he was informed that he had a follow-up
appointment scheduled for mid-January. (Summers Affidavit at 38.) On December
29, 2017, Boggs wrote: “Thanks for denied mental health treatment after
repeatedly asking for help here. I have [subpoenaed] all kiosk records for my civil
suit.” (Summers Affidavit at 39.) The response was “OK – I’m not sure what you
have been denied, though. Please explain – you are currently being treated. Each
patient is seen every 90 days, and your 90 day follow up is coming up in midJanuary, just as I’ve told you.” (Summers Affidavit at 39.) Boggs wrote back:
“The only thing done was the dr messed up my pain meds,” to which mental health
responded, “I’m sorry, the treatment is at the discretion of the psychiatrist. He
increased medication, but if you would like it changed, we can discuss this with
him during your follow up.” (Summers Affidavit at 40.)
Neither Boggs’s Amended Complaint nor his response to the Motions is
sworn or made under penalty of perjury. In his response, Boggs stated that
defendants Hembree and Parks were “at the top of the chain of command there at
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the jail and had total control of every aspect of my housing in the … SHU
[segregation housing unit]….” (Docket Item No. 57 at 2.) He also stated,
“Murderers were permitted to be in population as were 7 other inmates with escape
charges. Therefore, I was treated indifferent by them both.” (Docket Item No. 57 at
2.) Boggs also stated that defendant Lawson could be “seen on video” giving him
a limp-wristed gesture multiple times and calling him a gay white supremacist and
a “faggot.” (Docket Item No. 57 at 2.) Boggs stated he had filed requests for video
footage and officer’s statements, but had not received any response.3 (Docket Item
No. 57 at 2.)
Boggs submitted a VDOC pamphlet on the Prison Rape Elimination Act
with his response to the Motions. (Docket Item No. 57-1.) This pamphlet states, in
part:
The Virginia Department of Corrections … is committed to and
has adopted a ZERO-TOLERANCE standard for sexual abuse
and/or harassment of offenders….
…
Sexual misconduct is defined as any behavior of a sexual nature
between:
… Staff (including contract staff) and offenders ….
…
Behavior of a sexual nature includes:
…
… Sexual harassment….
(Docket Item No. 57 at 4-5.) (Emphasis in original.)
3
By Order dated February 6, 2018, the court stayed discovery in the case. (Docket Item
No. 32.) Boggs filed a Request for Production of Documents with the court on January 10, 2018.
(Docket Item No. 23.) The court’s review of this document shows that many of the items
requested have little, if any, connection to the claims Boggs raises in this case.
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II. Analysis
The defendants Hembree, Parks, Dockery, Elam and Lawson argue that,
pursuant to Federal Rules of Civil Procedure Rule 12(b)(6), Boggs’s Amended
Complaint fails to state a claim against them. Rule 12(b)(6) provides for dismissal
of a complaint for “failure to state a claim upon which relief can be granted.” FED.
R. CIV. P. 12(b)(6) (2018). Rule 12 also states that, if matters outside of the
pleadings are presented to the court on a Rule 12(b)(6) motion, the motion must be
treated as a motion for summary judgment. See FED. R. CIV. P. 12(d) (2018). Here,
none of the parties have submitted any additional materials for the court’s
consideration on the motions to dismiss. Therefore, the court will decide the
motions to dismiss based on the facts alleged in the Amended Complaint.
In Bell Atlantic Corp. v. Twombly, the Supreme Court stated that “a
plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” 550 U.S. 544, 555 (2007) (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986)). The “[f]actual allegations must be
enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at
555 (citations omitted). Additionally, the Court established a “plausibility
standard” in which the pleadings must allege enough to make it clear that relief is
not merely conceivable but plausible. See Twombly, 550 U.S. at 555-63.
The Court further explained the Twombly standard in Ashcroft v. Iqbal, 556
U.S. 662, 678-79 (2009):
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Two working principles underlie our decision in Twombly.
First, the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice. … Second, only a
complaint that states a plausible claim for relief survives a motion to
dismiss. …
In keeping with these principles a court considering a motion to
dismiss can choose to begin by identifying pleadings that, because
they are no more than conclusions, are not entitled to the assumption
of truth. While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations. When there
are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an
entitlement to relief.
(Internal citations omitted).
Also, pro se complaints are held to a less stringent standard then those
drafted by counsel. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
Furthermore, the court should liberally construe a complaint filed by a pro se
litigant to allow the development of a potentially meritorious case. See Hughes v.
Rowe, 449 U.S. 5, 9 (1980). The requirement to liberally construe a pro se
complaint does not mean, however, that the court may ignore a clear failure to
plead sufficient facts to support a cognizable claim. See Weller v. Dep’t of Soc.
Servs., 901 F.2d 387, 391 (4th Cir. 1990).
The defendants Summers and Mediko have filed motions for summary
judgment, supported by Summers’s affidavit and attached exhibits. With regard to
a motion for summary judgment, the standard for review is well-settled. The court
should grant summary judgment only when the pleadings, responses to discovery
and the record reveal that “there is no genuine dispute as to any material fact and
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the movant is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(a)
(2018); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). A genuine dispute of material
fact exists “if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson, 477 U.S. at 248. In considering a motion for
summary judgment, the court must view the facts and the reasonable inferences to
be drawn from the facts in the light most favorable to the party opposing the
motion. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587. In order to be
successful on a motion for summary judgment, a moving party "must show that
there is an absence of evidence to support the non-moving party's case" or that "the
evidence is so one-sided that one party must prevail as a matter of law." LexingtonSouth Elkhorn Water Dist. v. City of Wilmore, Ky., 93 F.3d 230, 233 (6th Cir.
1996). When a motion for summary judgment is made and is properly supported
by affidavits, depositions or answers to interrogatories, the nonmoving party may
not rest on the mere allegations or denials of the pleadings. See Oliver v. Va. Dep’t
of Corrs., Civil Action No. 3:09cv00056, 2010 WL 1417833, at *2 (W.D. Va. Apr.
6, 2010) (citing FED. R. CIV. P. 56(e)). Instead, the nonmoving party must respond
by affidavits or otherwise and present specific facts from which a jury could
reasonably find for either side. See Anderson, 477 U.S. at 256-57.
In their motions to dismiss, defendants Hembree and Parks argue that
Boggs’s Amended Complaint fails to state a claim against them for cruel and
unusual punishment. They also argue that Boggs has failed to plead any personal
involvement on their part. Further, they argue that they are entitled to qualified
immunity from Boggs’s claims.
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The entirety of Boggs’s Amended Complaint allegations against Hembree
and Parks are that they kept Boggs in segregation and caused him psychological
injury. Even if the court considers the facts alleged by Boggs in his response to the
Motions, Boggs added only allegations that Hembree and Parks were at the “top of
the chain of command … at the jail and had total control of every aspect of my
housing” in segregation.
The Fourth Circuit has held that “segregated confinement is not per se
unconstitutional.” Allgood v. Morris, 724 F.2d 1098, 1101 (4th Cir. 1984) (citing
Sweet v. S.C. Dep’t. of Corr., 529 F.2d 854, 861 (4th Cir. 1975)). Furthermore,
various courts, including this one, have held that, inmates generally do not have a
liberty interest in a particular security classification or in freedom from
segregation. See Shelton v. Angelone, 183 F. Supp. 2d 830, 838-39 (W.D. Va.
2002); Drummer v. Luttrell, 75 F. Supp. 2d 796, 799 (W.D.Tenn. 1999); Sandefur
v. Lewis, 937 F. Supp. 890, 894 (D. Ariz. 1996). Similarly, the court in Templeman
v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994), held that a change in classification
does not create a liberty interest because an inmate is not entitled to a particular
degree of liberty while incarcerated. Essentially, given a valid conviction, a
criminal defendant has been constitutionally deprived of his liberty to the extent
that a state may confine him and subject him to the rules of its prison system so
long as the conditions of confinement do not otherwise violate the Constitution.
See Meachum v. Fano, 427 U.S. 215, 224 (1976).
In this case, Boggs has not alleged any facts that would state a claim for
violation of his constitutional rights by Hembree and Parks placing him in
segregation. In particular, Boggs has not alleged that the conditions of segregation
confinement at SWVRJ were such that they amounted to cruel and unusual
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punishment. See Sweet, 529 F.2d at 860-61. As stated above, an inmate has no
liberty interest in a particular security classification, therefore, Boggs’s Amended
Complaint does not state a claim for violation of his due process rights. See Sandin
v. Conner, 515 U.S. 472, 477–78 (1995) (initial inquiry in any due process claim is
whether the plaintiff has demonstrated that he has been deprived of a protected
liberty interest).
While it appears that Boggs may be claiming that he was treated differently
from other similarly situated inmates, in that he alleges that other inmates with
escape charges were not housed in segregation, that allegation standing alone does
not state a claim for violation of his equal protection rights. A prisoner also must
allege that the unequal treatment resulted from intentional or purposeful
discrimination. See Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001).
Thus, even assuming that all Boggs’s factual allegations contained in the Amended
Complaint are true, it fails to state a claim for relief against Hembree and Parks for
a constitutional violation. The fact that Boggs has not adequately pleaded a
constitutional violation against Hembree and Parks also entitles them to qualified
immunity from his claims. See Wiley v. Doory, 14 F.3d 993, 995 (4th Cir. 1994) (if
there is a legitimate question as to whether an official’s conduct constitutes a
constitutional violation, the official is entitled to qualified immunity). Therefore, I
will grant their motion and dismiss Boggs’s claims against them.
In their motion to dismiss, defendants Dockery, Elam and Lawson argue that
Boggs’s Amended Complaint alleges no more than verbal harassment against
them, and that verbal harassment, without more, does not state any constitutional
claim. In his Amended Complaint, Boggs alleged that these defendants called him
derogatory slurs and made derogatory gestures toward him based on his sexuality
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and otherwise. He also alleged no more than this against these defendants in his
response to their motion. These defendants correctly argue that allegations of
verbal abuse or harassment, gestures and, even, verbal threats, without more, do
not state a constitutional claim. See Moody v. Grove, 885 F.2d 865, 1989 WL
107004 at *1 (4th Cir. Sept. 19, 1989); Fisher v. Woodson, 373 F. Supp. 970, 973
(E.D. Va. 1973). Again, because the conduct alleged, no matter how unsavory or
unprofessional, does not rise to the level of a constitutional violation, these
defendants also are entitled to qualified immunity. See Wiley, 14 F.3d at 995.
The defendants also correctly argue that the Prison Rape Elimination Act,
(“PREA”), does not provide prisoners with any private cause of action. “The
PREA statute acknowledges that prison rape is a problem and establishes a
construct for federal, state, and local prisons to address that problem. See 34 U.S.C.
§§ 30301-30309. It does not, however, create a cause of action for individual
inmates who may have been victimized to bring suit against a jailer. Farley v.
Clarke, No. 7:15cv352, 2016 WL 8540135, at *6 (W.D. Va. Dec. 27, 2016); see
also Muhammad v. Barksdale, No. 7:15cv541, 2016 WL 627359, at *2 n.2 (W.D.
Va. Feb. 16, 2016) (“Muhammad does not assert any separate legal claim against
defendants under PREA itself, nor could he do so.”); Chapman v. Willis, No.
7:12cv389, 2013 WL 2322947, at *4 (W.D. Va. May 28, 2013) (“There is no basis
in law for a private cause of action under § 1983 to enforce a PREA violation”).
Therefore, Boggs’s allegations do not give rise to a private cause of action against
these defendants under PREA.
Boggs’s allegations against these defendants also do not state a claim for
retaliation, in that Boggs has not alleged that these defendants’ actions were
intended to be in retaliation for Boggs’s exercise of a specific constitutional right.
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To state a claim for retaliation, a prison inmate must allege that: (1) he was
engaged in a constitutionally protected activity; (2) a defendant took some action
that adversely affected the inmate; and (3) there was a causal relationship between
the inmate’s protected activity and the defendant’s conduct. See Booker v. S.C.
Dep’t. of Corr’s., 583 F. App’x 43, 44 (4th Cir. 2014) (citing Constantine v.
Rectors & Visitors of George Mason Univ. 411 F.3d 474, 499 (4th Cir. 2005)). I
interpret Boggs’s Amended Complaint to allege that, as a result of these
defendants’ actions, Boggs filed a PREA complaint and a retaliation complaint
against them. Boggs’s Amended Complaint does not allege that these defendants
took the alleged action in retaliation for his filing any previous complaint against
them or anyone else. Therefore, for these reasons, I also will grant these
defendants’ motion and dismiss Boggs’s claims against them.
Defendants Summers and Mediko have filed motions for summary
judgment. In her motion, Summers argues that there is no genuine dispute of
material fact and that she is entitled to judgment as a matter of law because she
was not deliberately indifferent to Boggs’s mental health needs. Based on the
evidence before the court, I agree. In his Amended Complaint, Boggs alleged only
that Summers and Mediko denied him mental health treatment and told him to stop
writing them with requests for help. Boggs made no allegations concerning these
defendants in his response to the Motions.
The Eighth Amendment to the U.S. Constitution not only prohibits excessive
sentences, but it also “protects inmates from inhumane treatment and conditions
while imprisoned.” See Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996).
This includes a requirement that a state provide medical care to those it punishes
by incarceration. See Estelle v. Gamble, 429 U.S. 97, 103 (1976); Godfrey v.
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Russell, Civil Action No. 7:14cv00476, 2015 WL 5657037, at *8 (W.D. Va. Sept.
24, 2015) (citing Bowring v. Godwin, 551 F.2d 44, 47-48 (4th Cir. 1977));
Chapman v. Rhodes, 434 F. Supp. 1007, 1020 (S.D. Ohio 1977), aff’d, 624 F.2d
1099 (6th Cir. 1980), rev’d on other grounds, 452 U.S. 337, 344 (1981). For a
prisoner to prevail on a constitutional claim for denial of medical care, he must
demonstrate that a defendant’s acts or omissions amounted to deliberate
indifference to his serious medical needs. See Estelle, 429 U.S. at 106. Mere
disagreement with the prescribed treatment or, even, medical malpractice, does not
rise to the level of deliberate indifference to prove a constitutional claim. See
Estelle, 429 U.S. at 103; Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985). In
essence, treatment rendered must be so grossly incompetent or inadequate as to
shock the conscience or to be intolerable to fundamental fairness. See Miltier v.
Beorn, 896 F.2d 848, 851 (4th Cir. 1990) (citation omitted).
Through her affidavit, Summers has provided evidence to the court that she
responded to each of Boggs’s requests for treatment, assessed his condition and
arranged for him to be seen by the psychiatrist for further treatment. As stated
above, in light of this evidence, Boggs cannot simply rely on the allegations
contained in his pleadings without offering evidence demonstrating a genuine
dispute in fact. See Anderson, 477 U.S. at 256-57; Oliver, 2010 WL 1417833, at
*2. Nonetheless, Boggs has provided the court no evidence to support his claim
against Summers. Therefore, I will grant Summers’s motion and enter summary
judgment in her favor.
In its motion, Mediko argues that it is entitled to the entry of summary
judgment in its favor because Boggs has failed to provide any evidence against
Mediko to demonstrate deliberate indifference to his serious medical need. As
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stated above, a party may be entitled to the entry of summary judgment in its favor
if there is an absence of evidence to support the nonmoving party’s case. See
Lexington-South Elkhorn Water Dist., 93 F.3d at 233. A corporation, such as
Mediko, cannot act except through its agents or employees. See Miller and Rhoads
v. West, 442 F. Supp. 341, 344 (E.D. Va. 1977). Boggs has provided the court with
no allegation, much less evidence, of the involvement of any employee or agent of
Mediko being involved in his psychological treatment, or lack of treatment.
Therefore, the court will grant its motion and enter summary judgment in Mediko’s
favor. I further note, that, even if Boggs had offered evidence that Summers was an
employee or agent of Mediko, the evidence before the court is undisputed and
would require the entry of summary judgment in its favor.
The court will enter an appropriate Order and Judgment.
ENTERED:
November 14, 2018.
s/
Pamela Meade Sargent
UNITED STATES MAGISTRATE JUDGE
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