Agee v. Kiser et al
Filing
46
MEMORANDUM OPINION. Signed by Senior Judge Norman K. Moon on 3/18/2019. (tvt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
JONATHAN ASHLEY AGEE,
Plaintiff,
)
)
)
)
)
)
)
v.
JEFF KISER, et al.,
Defendants.
Civil Action No. 7:17cv00537
MEMORANDUM OPINION
By: Norman K. Moon
Senior United States District Judge
Plaintiff Jonathan Ashley Agee, a Virginia inmate proceeding pro se, filed this civil
rights action pursuant to 42 U.S.C. § 1983, alleging that several defendant prison officials
violated his federal constitutional rights. (Dkt. 1). The matter is before the court on Defendants’
motion for summary judgment (dkt. 38), and Plaintiff’s motion for preliminary injunction (dkt.
43). For the reasons that follow, I will grant Defendants’ motion and deny Plaintiff’s motion.
I.
A.
Legal Standards
Motion for Summary Judgment
Federal Rule of Civil Procedure 56(a) provides that a court should grant summary
judgment “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” “As to materiality, . . . [o]nly disputes over
facts that might affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
dispute over a material fact must be genuine, “such that a reasonable jury could return a verdict
for the nonmoving party.” Id.; see also JKC Holding Co. v. Wash. Sports Ventures, Inc., 264
F.3d 459, 465 (4th Cir. 2001). As such, the moving party is entitled to summary judgment if the
evidence supporting a genuine issue of material fact “is merely colorable or is not significantly
probative.” Anderson, 477 U.S. at 250.
“The moving party bears the initial burden of demonstrating the absence of a genuine
issue of material fact,” Appalachian Power Co. v. Arthur, 39 F. Supp. 3d 790, 796 (W.D. Va.
2014), by “pointing out to the district court . . . an absence of evidence to support the nonmoving
party’s case,” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party makes that
showing, the nonmoving party must then set forth specific, admissible facts in evidence to
demonstrate a genuine dispute of fact for trial. See Fed. R. Civ. P. 56(c), (e); Scott v. Harris, 550
U.S. 372, 380 (2007); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). In considering a motion for summary judgment, the court must view the record as a
whole and draw all reasonable inferences in the light most favorable to the nonmoving party. 1
Celotex, 477 U.S. at 322–24; Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). However, the
nonmoving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to
defeat a motion for summary judgment. Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874–75 (4th
Cir. 1992). The evidence set forth must meet the “substantive evidentiary standard of proof that
would apply at a trial on the merits.” Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1315–16 (4th
Cir. 1993).
B.
Motion for Preliminary Injunction
Preliminary injunctive relief is an extraordinary remedy that courts should apply
sparingly. See Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir. 1991).
As a preliminary injunction temporarily affords an extraordinary remedy prior to trial that can be
granted permanently after trial, the party seeking a preliminary injunction must demonstrate: (1)
1
Agee is proceeding pro se, and therefore is also entitled to a liberal construction of the
pleading. See, e.g., Erickson v. Pardus, 551 U.S. 89, 90–95 (2007). 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 . . . 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 1276. “Applying these principles to the
summary judgment context, a pro se plaintiff must comply with Rule 56 of the Federal Rules of
Civil Procedure and come forward with sufficient evidence upon which a reasonable jury could
return a verdict in his or her favor.” Reid v. Charlotte-Mecklenburg Bd. of Educ., No. 3:14cv66,
2016 WL 6080545, at *4 (W.D.N.C. Feb. 12, 2016).
2
by a “clear showing,” that he is likely to succeed on the merits at trial; (2) that he is likely to
suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in
his favor; and (4) that an injunction is in the public interest. Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 20-22 (2008).
II.
Background
Agee is a former deputy sheriff. (Dkt. 1, at 4). In 2013, he was convicted of first-degree
murder and sentenced to a term of life imprisonment within the Virginia Department of
Corrections (“VDOC”). (See id.; Sentencing Order, Commonwealth v. Agee, No. CR11-1171, at
1-3 (Va. Cir. Ct. May 8, 2013), dkt. 39-5). Given his “long” history of arresting now-incarcerated
individuals, some of whom “are known gang members,” Agee was placed in “protective custody
status” when he entered prison. 2 (Dkt. 1, at 4; see also Pl.’s Statement of Facts, dkt. 1-1, at 1; Ex.
1, dkt. 1-2, at 1; Swiney Aff. 1-2, dkt. 39-3). He now resides at Red Onion State Prison
(“ROSP”) in Pound, Virginia. (See dkts. 1, 45). This lawsuit stems from ROSP officials’
decision to remove Agee from protective custody and to place him in long-term segregation in
September 2016, as well their recommendation in November 2017 that he be transferred to a
prison outside of Virginia. (See dkt. 1, at 3–7). Both decisions followed Agee’s disciplinary
conviction for assaulting another inmate while he was still under protective custody. (See id. at
4–5).
2
Agee repeatedly alleges that the sentencing judge “ordered” that he be placed in
protective custody because of his background in law enforcement, and that, as a result, his
removal from protective custody and possible interstate transfer violate the state court’s
“sentencing order” in his criminal case. (See, e.g., dkt. 1, at 3–4, dkt. 1-1, at 2; dkt. 41, at 7).
Defendants have submitted a copy of the Sentencing Order in Commonwealth v. Jonathan Ashley
Agee, showing Agee was convicted of first-degree murder and sentenced to incarceration in the
Virginia Department of Corrections “for life,” which “shall run consecutive to all other
sentences.” (See dkt. 39-5, at 2–3). The order says nothing about Agee’s housing assignment or
conditions of confinement, (id. at 1–3), and Agee has not produced any evidence supporting his
assertions that the state sentencing court “ordered” that he be permanently housed under
protective custody.
3
On September 10, 2016, Agee was in the D-1 pod with several other inmates during
recreation. (See dkt. 1-1, at 1; Offense Report, at 1-2 (Sept. 10, 2016), dkt. 39-1; Fannin Aff. 4,
dkt. 39-2). Around 10:00 a.m., an officer received notice of a “possible” inmate-on-inmate
assault. (Dkt. 39-1, at 4). The officer reviewed footage from the pod’s rapid eye camera system,
which, according to the officer’s written report, showed Agee approach inmate Thomas Childers
“from behind . . . and place[] him in a chokehold pushing him back down” in his chair while four
other inmates “assaulted him.” (Id.). Childers “positively identifie[d] each of his attackers,
including Agee in this assault.” (Id.). The officer promptly filed a Disciplinary Offense Report
charging Agee with “Offense 105B – Aggravated Assault Upon an Offender” 3 based on
Childers’s statements and the conduct that the officer observed on the surveillance video. (Id.). A
different officer delivered a copy of the Disciplinary Offense Report, along with a written
“Penalty Offer” proposing loss of telephone privileges for thirty days, to Agee around four
o’clock that afternoon. (Id. at 4, 7). Agee accepted the penalty offer right away. (Id. at 7). His
signature on these documents indicates his understanding that, by accepting the penalty offer, he
was “pleading guilty to the offense” as charged in the disciplinarily report; giving up his rights to
a formal disciplinary hearing, to call witnesses and present evidence in his defense, and to
question any person who made a statement against him; agreeing to the thirty-day suspension of
his telephone privileges; and permanently foreclosing “any appeal of this offense,” except on
limited procedural grounds. (Id. at 4, 7). Defendant Walter Swiney, the Unit Manager of the D
Unit at ROSP, approved Agee’s plea of guilty on September 14, 2016. (Id. at 6; dkt. 39-3, at 1–
2). Agee did not appeal this disposition. (Counts Aff. 2, dkt. 39-1).
3
“Aggravated Assault” means “[i]ntentional, impermissible physical contact by one
person upon another . . . involving a weapon and/or resulting in serious injury or committed with
the intent to inflict serious injury.” (Definitions, Sec. III, VDOC Operating Procedure (“O.P.”),
dkt. 39-1, at 8). “In the case of an altercation between two offenders, this offense will apply only
to the offender who attacks or initiates the actual physical contact” against the other person. (Id.
at 13).
4
Around the same time, Agee was removed from protective custody and placed in
administrative segregation. (See dkt. 1, at 3–4; dkt. 39-3, at 2). On September 12, Defendant
Carroll Stanley, acting as the Institutional Classification Authority (“ICA”), held a hearing to
review Agee’s housing status in light of his recent disciplinary charge. (Dkt. 39-3, at 3). Stanley
recommended Agee’s status be changed to “segregation administration” because he “accepted
the penalty offer” on the aggravated assault charge. (Id. at 5 (“Offender Statement: Took the
penalty offer.”)). Defendant Swiney approved this recommendation the next day. (Id. at 2, 5).
On September 16, Swiney held an ICA Hearing to review Agee’s security-level
designation. (Dkt. 39-3, at 6; see also dkt. 1, at 3–4). He recommended that Agee “see a change
in [his] security from level ‘P,’” or “Protective Custody,” to “security level ‘S,’” or
“Segregation,” based on his involvement in the September 10 attack on Childers, subsequent
disciplinary charge, and the fact that Childers “suffered serious injuries to his hand and abdomen
causing ongoing off site medical treatment.” (Dkt. 39-3, at 6 (internal quotation marks added)).
The ICA report also indicates that Agee would “benefit[] from the programs and security in a
security level S setting.” (Id.). Agee was moved to a long-term segregation unit on September
19, 2016 (See id. at 3, 5). He did not appeal this determination within the time allowed under
VDOC’s standard grievance process.
On November 7, 2017, Agee attended a third ICA hearing, this time to determine whether
he should be recommended for Interstate Corrections Compact Transfer. (See dkt. 39-3, at 3, 7).
Agee objected that he did not “want to be sent out of state” and he could go to other VDOC
facilities. (Id. at 7). The ICA hearing report states that Agee was “originally in protective custody
until he received [the] 105B charge,” and that he “made progress” at security level “S.” (Id.). It
recommended that he be transferred to a prison outside Virginia so he could be even “more
successful and . . . productive” while serving his life sentence. (Id.). The report lists Defendant
5
Gary Adams as the ICA who made this recommendation. (Id.). Agee alleges that it was actually
Defendant Stanley who “chaired [the] ICA hearing and recommended an out of state transfer.”
(Dkt. 1-1, at 2, 5). Defendants Stallard and Gilliam, both ROSP counselors, also “participated” in
some capacity. (Dkt. 6, at 1). Defendant Larry Collins approved the ICA’s recommendation at
the administrative level, adding that Agee was housed “in protective custody until he was
involved in [a] 5 on 1 assault [against] another offender” in September 2016 and that his “release
into general population” at another VDOC facility was “not advised.” (See dkt. 39-3, at 3, 7).
Defendant Collins was a “Unit Manager” when he approved this recommendation. (Id. at 3).
Agee asserts that Defendant Collins was not authorized to do this because VDOC policy gives
the “Facility Unit Head,” i.e., the warden or superintendent, exclusive and nondelegable
authority to approve interstate transfer recommendations at the facility level. (See dkt. 1, at 5–6;
dkt. 1-1, at 2; dkt. 1-2, at 3; dkt. 1-3, at 1). Defendant Jeff Kiser was ROSP’s warden in
November 2017. (See dkt. 1, at 2, 6; 39-4, at 22).
On November 27, Agee submitted a Regular Grievance appealing the transfer
recommendation. (Dkt. 39-4, at 19). He argued that Defendant Collins did not have authority to
approve this recommendation because he was not ROSP’s Facility Unit Head. Agee also argued
that the initial recommendation was procedurally defective because Defendant Adams was not at
the ICA hearing, even though he was listed as the ICA on the hearing report. (Id.). Rather,
Defendant Stanley “chaired th[e] hearing” and recommended that Agee be transferred out of
state “based on the [assault] incident” in September 2016. (Id.). Agee also asserted, apparently
for the first time, that the surveillance “video [did] not support” a conclusion that “5 people
assaulted 1 inmate.” (Id. (“The rational[e] used is fabricated because it shows 5 people assaulted
1 inmate. Video does not support this.”)).
6
Agee filed this lawsuit two days later. (See dkt. 1-5, at 1). In his verified complaint, he
explained that he had “initiated th[e] exhaustion process,” but he decided to file suit because was
“being told the [grievance] appeal is only a formality,” (dkt. 1, at 2–3), and would not stop
officials from transferring him outside Virginia “to an unknown destination at an unknown
facility” where he might be placed in “general population where [his] life will be in imminent
danger,” (dkt. 1-2, at 2, 5).
On December 13, 2017, Defendant J. Artrip, then ROSP’s Assistant Warden, signed a
“Level I” response to Agee’s grievance. (Dkt. 39-4, at 4, 22; see also dkt. 6, at 1–2). The
response, drafted by Defendant J. Messer, ROSP’s Grievance Coordinator, explained that
involuntary interstate transfers “are a mechanism . . . . for offenders [who] may be at risk or pose
a serious risk in one correctional system to be moved to another system where the risk may be
reduced,” and that VDOC’s Central Classification Service (“CCS”) has “the final authority” to
decide whether an inmate is transferred. (Dkt. 39-4, at 22). The facility’s recommendation that
Agee be transferred out of state was still pending before the CCS at that time. Assistant Warden
Artrip also found that Agee’s procedural complaints about the facility-level recommendation
were “unfounded” because all operating “procedures [were] correctly applied” in his case. (Id.
(“There has been no violation of operating procedure.”)). Agee “exhausted his administrative
remedies on this issue” on January 11, 2018, when the Level I response was affirmed by “the
Regional Office” on Level II appeal. (Messer Aff. 4, dkt. 39-4). Agee was still housed at ROSP
as of January 16, 2019. (See dkt. 45, at 1–5).
III. Claims and Relief Sought
Agee filed this lawsuit alleging that Defendants violated his rights under the Eighth and
Fourteenth Amendments. As amended, his Complaint contains five counts against nine named
defendants in their official and individual capacities. (Dkt. 1, at 2 ¶¶ 4–5; dkt. 6, at 1; dkt. 10, at
7
1–2). First, Agee contends that Defendant Swiney “initiated proceedings” to move him from
protective custody to “a general population segregation unit where gang members have acted out
towards” him. (Dkt. 1, at 3–4 ¶ 10). “[O]n at least 3 separate occasions,” unidentified ROSP staff
members took Agee out of his cell while “fully restrained . . . and put him around unrestrained
gang members who threatened [his] life while cutting his hair.” (Id.).
Second, Agee contends that Defendant Stanley violated his due-process rights because he
“chaired [the] ICA hearing and recommended an out of state transfer” without allowing Agee to
submit a written statement or providing a “truthful rational[e] to support such a proceeding.”
(Dkt. 1, at 4–5 ¶ 11). Defendants Stallard and Gilliam “participated in th[is] process” as well.
(Dkt. 6, at 1). Agee further alleges that ROSP officials’ purported rationale for recommending
interstate transfer—i.e., that Agee and four “other inmates assaulted another inmate for no
reason” on September 10, 2016—was “false” or “fabricated” because the surveillance footage
“of this incident shows a different fact.” (Dkt. 1-1, at 1). He asserts that the video shows that
Childers was “acting erratically,” so Agee
employed a restraining hold on [him] and released it after [he] sat down and
became calm. Video shows Childers jump us, start pointing fingers into another
inmate’s face, that inmate grabbed Childers’s fingers to prevent harm to himself
and Childers’s finger detained [sic] injury. No other inmates are seen on video
assaulting Childers as officials falsely documented.
(Id.). Agee admits that he accepted the “penalty offer” for aggravated assault as charged in the
Disciplinary Offense Report. (See dkt. 41, at 4).
Third, Agee contends that Defendants Adams and Collins violated his due-process rights
by endorsing the ICA Hearing form and transfer recommendation without proper authority. (Dkt.
1, at 5 ¶ 12). He asserts that Defendant Adams “falsified” this official document by “sign[ing]
the ICA as chairman” even though he did not attend that hearing, and that VDOC policy did not
authorize Defendant Collins to endorse the ICA’s interstate-transfer recommendation because he
8
was not the “Facility Unit Head.” (Id.; see also dkt. 1-1, at 2). Fourth, Agee contends that
Defendant Kiser violated Agee’s due-process rights because he knew “or should have known
that [VDOC] policy for interstate transfers” gives him exclusive, nondelegable authority to
approve the ICA’s recommendation that an inmate be involuntarily transferred out of state. (Dkt.
1, at 6 ¶ 13; see also dkt. 1-3, at 1). Finally, Agee contends that Defendants Messer and Artrip
“violated [his] rights to due process secured under [VDOC’s] Interstate Compact & Transfer
policy” because neither facility-level official had authority to answer his Regular Grievance
challenging the ICA’s recommendation. (Dkt. 10, at 1–2).
Agee seeks compensatory and punitive damages against each Defendant in his or her
official and individual capacities, declaratory relief, and an injunction ordering Defendants and
VDOC to not transfer Agee “out of the state [or] to any other location unless it is to the
protective custody unit at either location at Red Onion or Dillwyn Correctional Center” in central
Virginia. (Dkt. 1, at 8 ¶¶ 17–20; see dkt. 6, at 1). Defendants collectively moved for summary
judgment on the merits of each claim, as well as on their affirmative defense that the action is
barred under the Prison Litigation Reform Act (“PLRA”) because Agee filed suit in federal court
a few weeks before he exhausted his administrative remedies. (Dkt. 39, at 12–22).
IV.
A.
Analysis
PLRA Exhaustion
The PLRA provides that “[n]o action shall be brought with respect to prison conditions
under section 1983 of this title, or any Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a). “[E]xhaustion is mandatory under the PLRA and . . . unexhausted claims
cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007). A prisoner must exhaust
all available administrative remedies, whether or not they meet federal standards or are plain,
9
speedy, or effective, Porter v. Nussle, 534 U.S. 516, 524 (2002), and even if exhaustion would be
futile because those remedies would not provide the relief the inmate seeks, Davis v. Stanford,
382 F. Supp. 2d 814, 818 (E.D. Va. 2005). There is, however, a “built-in exception to the
exhaustion requirement: A prisoner need not exhaust remedies if they are not ‘available.’” Blake
v. Ross, 136 S. Ct. 1850, 1855 (2016). “Accordingly, an inmate is required to exhaust those, but
only those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for the action
complained of.’” Id. at 1859 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). 4
Defendants submitted an affidavit establishing that Agee filed this lawsuit in late 2017,
after he submitted his regular grievance, but about five weeks before he fully “exhausted his
administrative remedies” on January 11, 2018. (See dkt. 39-4, at 4). Agee admits as much in his
verified complaint. (Dkt. 1, at 2–3). However, Agee disputes whether the officials who handled
Agee’s grievance could “provide any relief to aggrieved inmates,” Blake, 136 S. Ct. at 1859,
trying to challenge an IAC’s recommendation that he be involuntarily transferred out of state.
(See dkt. 1, at 2–3). According to Defendant Messer’s affidavit and supporting exhibit, the
officials who responded to Agee’s grievance at Level I and Level II essentially said they could
not do anything to help him—“the final decision was pending with the CCS,” which had “final
authority” to approve or deny ROSP’s transfer recommendation. (Dkt. 39-4, at 4, 22). After
4
The Supreme Court recently identified “three kinds of circumstances in which an
administrative remedy, although officially on the books, is not capable of use to obtain relief.”
Ross, 136 S. Ct. at 1859. First, “an administrative procedure is unavailable when (despite what
regulations or guidance materials may promise) it operates as a simple dead end—with officers
unable or consistently unwilling to provide any relief to aggrieved inmates.” Id. (citing Booth,
532 U.S. at 736–38). “‘[S]ome redress for a wrong is presupposed by the statute’s requirement’
of an ‘available’ remedy; ‘where the relevant administrative procedure lacks authority to provide
any relief,’ the inmate has “nothing to exhaust.’” Id. (quoting Booth, 532 U.S. at 736 & n.4).
Second, “an administrative scheme might be so opaque that it becomes, practically speaking,
incapable of use. In this situation, some mechanism exists to provide relief, but no ordinary
prisoner can discern or navigate it.” Id. Third, an administrative remedy is not “available” when
“prison administrators thwart inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” Id. at 1860.
10
review of VDOC Operating Procedure and viewing the evidence in Agee’s favor, the mechanism
for review of the transfer recommendation is not entirely clear and the issue remains relatively
unbriefed. 5 Therefore, in the interests of justice and judicial expediency, I will analyze the merits
of Agee’s claims.
B.
Constitutional Claims
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
While the allegations or evidence necessary to proceed with a claim under § 1983 “will vary with
the constitutional provision at issue,” a plaintiff must at least establish “that each Governmentofficial defendant, through the official’s own actions [or omissions], has violated the
Constitution” or other federally protected right. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
Negligent deprivations are not actionable under § 1983. See, e.g., Daniels v. Williams, 474 U.S.
327, 330 (1986); Pink v. Lester, 52 F.3d 73, 77 (4th Cir. 1995).
Agee does not sufficiently allege that Defendants Kiser, Artrip, Messer, Gillum, or
Stallard were personally involved in any of the events giving rise to his § 1983 claims. First,
regardless of whether VDOC policy authorized Defendants Artrip and Messer to handle Agee’s
grievance challenging the IAC’s interstate-transfer recommendation, the mere fact that they
drafted and signed the Level I response does not establish the “type of personal involvement
required,” Marby v. Ramirez, No. 2:06cv103, 2007 WL 4190398, at *6 (N.D. W. Va. Nov. 21,
2007), to state a claim for relief under § 1983. See, e.g., Delk v. Moran, No. 7:16cv554, 2018
5
The Level I response to Agee’s grievance states that “Interstate Compact Procedures
and OP 830.1 (Institution Classification Management) governs this issue.” (Dkt. 39-4, at 22).
The Court takes judicial notice of these policies’ content, available at
https://vadoc.virginia.gov/about/procedures/default.shtm. See Crayton v. Kiser, No. 7:12cv279,
2012 WL 2529189, at *1 n.1 (W.D. Va. June 29, 2012) (citing Fed. R. Evid. 201(b)(2)).
11
WL 1513296, at *6 (W.D. Va. Mar. 27, 2018); Crawley v. Parsons, No. 7:15cv647, 2017 WL
1013120, at *5 n.6 (W.D. Va. Mar. 17, 2017); Brown v. Va. Dep’t of Corrs., No. 6:07cv33, 2009
WL 87459, at *13 (Jan. 9, 2009).
Similarly, Agee’s assertion that Defendant Kiser “kn[ew] or should have known that
[VDOC] policy for interstate transfer” supposedly “require[s] his and only his signature of
approval” when the ICA recommends interstate transfer generally, (Dkt. 1, at ¶ 13), is
insufficient. It does not support a reasonable inference that Warden Kiser knew about, let alone
was personally involved in, the ICA’s recommendation in this case that Agee be transferred out
of state. See Eastman v. Warden, Balt. City Det. Ctr., No. CCB-10-2389, 2011 WL 210343, at *2
(D. Md. Jan. 21, 2011). Finally, Agee does not allege any facts describing how Defendants
Counselor Stallard and Counselor Gillum were “involved” or “participated in th[e] process”
leading to the IAC’s recommendation that Agee be transferred to another state. (Dkt. 6, at 1).
Absent “further factual enhancement,” his “naked assertion” that an unidentified counselor
attended the November 7 hearing, (Dkt. 1-4, at 4), is not enough to hold either Defendant
personally liable for the misconduct alleged. See Iqbal, 556 U.S. at 678 (internal quotation marks
omitted).
These Defendants have carried their initial burden under Rule 56(c) by showing that the
well-pled allegations in Agee’s verified complaint, accepted as true and viewed in his favor, do
not establish a genuine dispute of material fact over whether any of them were “personally
involved” in the underlying constitutional violations. This shifts the burden to Agee to set out
facts admissible in evidence to establish a specific material fact genuinely in dispute. See
Celotex, 477 U.S. at 325. Agee, however, merely responds that he “has in fact stated claims”
upon which relief can be granted and “has shown direct [i]nvolvement of all Defendants in his
claims and exhibits.” (Dkt. 41, at 3). Such conclusory, unsupported allegations do not create a
12
genuine issue for trial on these claims. Accordingly, Defendants Kiser, Artrip, Messer, Gillum,
and Stallard are entitled to judgment as a matter of law in their favor. Fed. R. Civ. P. 56(a).
1.
Eighth Amendment – Failure to Protect
Agee contends that in September 2016 Defendant Swiney “initiated proceedings” to
move Agee from protective custody to “a general population segregation unit where gang
members have acted out towards” him. (Dkt. 1, at 3–4 ¶ 10). “In doing so,” Swiney allegedly
“has placed [Agee’s] safety in danger to the point that on at least 3 separate occasions,”
unidentified ROSP staff members took Agee out of his cell while “fully restrained . . . and put
him around unrestrained gang members who threatened [his] life while cutting his hair.” (Id.).
The Eighth Amendment requires that prison officials “take reasonable measures to
guarantee the safety of the inmates,” including protecting them “from violence at the hands of
other prisoners.” Farmer v. Brennan, 511 U.S. 825, 832–33 (1994). Prison officials violate this
duty when the plaintiff-prisoner suffers “physical harm at the hands of fellow inmates [that]
results from the deliberate or callous indifference of prison officials to specific known risks of
such harm.” Pressly v. Hutto, 816 F.2d 977, 979 (4th Cir. 1987). To prevail on a failure to
protect claim, the plaintiff must ultimately prove: (1) that the alleged deprivation was
objectively, sufficiently serious; and (2) the defendant-prison official acted or failed to act with a
“sufficiently culpable state of mind.” Odom v. S.C. Dep’t of Corr., 349 F.3d 765, 770 (4th Cir.
2003); see also Farmer, 511 U.S. at 834.
“Only extreme deprivations are adequate to satisfy” the first prong. De’Lonta v.
Angelone, 330 F.3d 630, 634 (4th Cir. 2003). To demonstrate an extreme deprivation, the inmate
must allege “a serious or significant physical or emotional injury resulting from the challenged
conditions or demonstrate a substantial risk of such serious harm resulting from the prisoner’s
exposure to the challenged conditions.” Odom, 349 F.3d at 770. For the second prong, a prison
13
official is liable if the official was deliberately indifferent to the inmate’s health or safety.
Farmer, 511 U.S. at 834. “Deliberate indifference is a very high standard—a showing of mere
negligence will not meet it.” Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999). An official is
deliberately indifferent if he “knows of and disregards an excessive risk to inmate health or
safety; the official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at
837. Officials cannot be held liable when they merely “should have” recognized the substantial
risk of harm; “they actually must have perceived the risk.” Parrish v. Cleveland, 372 F.3d 294,
303 (4th Cir. 2004).
Here, Agee does not allege that Defendant Swiney knew about the ROSP inmates
“act[ing] out” or threatening Agee’s life after he moved to administrative segregation in
September 2016. Thus, the only issue is whether a reasonable jury viewing the record in Agee’s
favor could conclude that Swiney’s involvement in changing Agee’s housing classification,
which in turn played some role in the ICA’s recommendation that Agee be transferred out of
state, violated Agee’s Eighth Amendment rights.
Defendant Swiney submitted an affidavit in which he explains that Agee was removed
from “protective custody [at ROSP] because he could no longer be housed and managed in D-1
after he assaulted another offender in that pod.” (Dkt. 39-3, at 1–2). Administrative segregation
is a more “secure” and “restrictive” housing environment than protective custody. (Id. at 2).
Agee “made progress [at] security level ‘S’” and was recommended for out-of-state transfer in
part because his “release into general population” at an VDOC facility was “not advised.” (Id. at
3). There is one other protective-custody unit within the VDOC system, but Agee’s “high[]
security level precludes him from assignment” to that facility. (Id. at 3–4). Thus, Swiney attests
that the ICA recommended interstate transfer “so that [Agee’s] status as a former law
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enforcement officer, as well as his status as an assaultive offender, [could] be properly and safely
managed.” (Id.).
Defendant asserts there is no genuine issue of material fact on this claim because Agee’s
alleged fears that out-of-state inmates will hurt him if they learn about his background, or that
being away from his family in Virginia will make prison unbearable, are too speculative to
satisfy the Eighth Amendment’s objective element. (Dkt. 39, at 18–19 & n.4; see dkt. 1, at 5
(Agee alleging that “such a transfer out of state will place me at an unknown destination[,] at an
unknown facility where that state will process me possibly into a general population where [my]
life will be in imminent danger”) (emphasis added); see also McLean v. Ray, No. 7:07cv409,
2007 WL 2472378, at *1 n.2 (W.D. Va. Aug. 30, 2007) (“None of McLean’s conclusory
allegations show that his safety was in danger at any point. . . . McLean’s speculative fear is
insufficient to show that he is imminent harm of serious physical injury.”)).
Agee does not respond to this assertion. Instead, he shifts the focus of his Eighth
Amendment claim away from the physical harm he might suffer if transferred to an unknown
out-of-state prison, and on to the “lost visitation,” restricted phone privileges, “limited time out
of his cell,” and lack of work opportunities he allegedly experienced while housed in
administrative segregation. (Dkt. 42, at 2–3). But, Agee has not pointed to any specific facts
admissible in evidence—i.e., something more than unsupported allegations made in his unsworn
legal brief—to back up these conclusory statements. See Ferris v. Accuscribe Transcription
Servs., No. 2:07-3281, 2010 WL 360689, at *5 n.11 (D.S.C. Jan. 26, 2010) (assertions made in
legal briefs are not evidence). Additionally, although Agee takes issue with Swiney’s sworn
assertion that Agee is not currently eligible to be transferred to the lower security protectivecustody unit within the VDOC, that factual dispute is not material to whether Swiney can be held
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liable for “initiat[ing] proceedings” in September 2016 that resulted in Agee being moved from
ROSP’s protective custody unit to the prison’s administrative segregation unit.
Accordingly, Defendant Swiney is entitled to judgment as a matter of law in his favor.
Fed. R. Civ. P. 56(a).
2.
Procedural Due Process
To prevail on any of his procedural due-process claims, Agee “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). Defendants argue that Agee
has not identified a protected liberty interest in his possible interstate transfer because, like all
convicted prisoners, Agee “has ‘no justifiable expectation that he will be incarcerated in any
particular state.’” (Dkt. 39, at 12 (quoting Olim v. Wakinekona, 461 U.S. 238, 245 (1983)). Agee
argues that the VDOC policies governing involuntary interstate transfers create a constitutionally
protected “liberty interest” in having prison officials follow certain procedures before they
recommend an inmate be transferred out of Virginia. For example, he contends that Defendant
Adams “falsified” the ICA Hearing Report by “sign[ing] . . . as chairman” even though he did
not attend the hearing, and that VDOC policy did not authorize Defendant Collins to endorse the
ICA’s recommendation because he was not the “Facility Unit Head.” (See dkt. 1-1, at 2). He also
contends that Defendant Stanley “chaired [the] ICA hearing and recommended an out of state
transfer” without allowing Agee to submit a written statement or providing a “truthful rational[e]
to support such a proceeding,” which Agee believes were required under VDOC policy. (Dkt. 1,
at 4–5 ¶ 11). Thus, Agee asserts that Defendants’ alleged failure to follow these internal policies
and procedures, without more, amounts to a federal constitutional violation.
Process, however, “is not an end to itself. Its constitutional purpose is to protect a
substantive interest to which the individual has a legitimate claim of entitlement.” Olim, 461 U.S.
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at 250 (concluding that the lower court “erred in attributing significance to the fact that the
prison regulations require a particular kind of hearing before the administrator can exercise his
unfettered discretion” to transfer the prisoner to another state). Thus, “even if clearly mandated
by state law” or agency policy, procedural protections alone “do not create a liberty interest in
either the procedures themselves or the substantive result they purportedly protect.” Holmes v.
Cooper, 872 F. Supp. 298, 302 (W.D. Va. 1995); see, e.g., Bilal v. Johnson, No. 7:09cv322,
2009 WL 2753194, at *2 (W.D. Va. Aug. 2009) (“Even though plaintiff alleges that Bass
violated VDOC procedures by instituting plaintiff’s transfer, a claim that prison officials have
not followed their own policies or procedures also does not amount to a constitutional violation.”
(citing United States v. Caceres, 440 U.S. 741 (1979); Riccio v. Cty. of Fairfax, Va., 907 F.2d
1459, 1469 (4th Cir. 1990))).
“[T]o demonstrate a liberty interest meriting procedural due process protection, a prisoner
must show (1) denial of ‘an interest that can arise either from the Constitution itself or from state
laws or policies,’ and that (2) this denial imposed on him an ‘atypical and significant hardship . .
. in relation to the ordinary incidents of prison life.’” Prieto, 780 F.3d at 251 (quoting Sandin v.
Conner, 515 U.S. 472, 484 (1995)). The federal Constitution does not create “any liberty
interest” against interstate prison transfer because “[c]onfinement in another State . . . is within
the normal limits or range of custody with the [criminal] conviction has authorized the State to
impose.” Olim, 461 U.S. at 247 (internal quotation marks omitted). Indeed, “it is neither
unreasonable nor unusual for an inmate to serve practically his entire sentence in a State other
than the one in which he was convicted and sentenced, or to be transferred to an out-of-state
prison after serving a portion of his sentence in his home State.” Id. Thus, Agee “would need to
point to a Virginia law or policy providing him with an expectation of avoiding the [challenged]
conditions of his confinement,” i.e., the Defendant ROSP officials’ mere recommendation that
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CCS officials consider Agee for Interstate Corrections Compact Transfer, “and demonstrate that
those conditions are harsh and atypical in relation to the ordinary incidents of prison life.” Id.
Defendants Adams, Collins, and Stanley assert that Agee cannot carry his burden on the
first element because Virginia statutory law gives VDOC’s Director and the other prison officials
to whom he has delegated his authority, “unfettered discretion in determining when, whether,
and how to best manage [Virginia’s] offender population via the use of the Compact to transfer
offenders out of state.” (Dkt. 39, at 15–16 (citing Va. Code § 53.1-217)). Federal courts in
Virginia have similarly held that the Commonwealth’s “prison transfer regulations do not create
any liberty interest in a specific housing assignment, as prison officials have broad discretion
under the regulations to determine the facility at which an inmate is housed.” Wilson v. Johnson,
No. 1:09cv334, 2009 WL 2707602, at *7 (E.D. Va. Aug. 25, 2009), aff’d in relevant part, 385 F.
App’x 319 (2010); see also Williams v. Bass, No. 7:07cv319, 2007 WL 2048667, at *2 (W.D.
Va. July 11, 2007) (“Virginia’s security classification system does not create any federally
protected liberty interest in being housed in a particular prison.”). In response, Agee simply
repeats his assertions that the ICA’s recommendation is tainted by perceived procedural errors
that Agee believes violated VDOC policies and procedures governing interstate prison transfers,
and that Defendants’ purported “failure to adhere to these policies violated the Due Process
Clause and created a liberty interest.” (See dkt. 41, at 1). He does not point to any evidence in the
record that might create a genuine dispute of material fact over those issues.
Accordingly, Defendants Adams, Collins, and Stanley are entitled to judgment as a
matter of law in their favor. Fed. R. Civ. P. 56(a).
3.
Official Capacity Claims
To the extent Agee seeks compensatory and punitive damages against Defendants in their
official capacities as VDOC personnel, such claims are not cognizable under 42 U.S.C. § 1983.
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Further, although Agee seeks equitable relief against Defendants in their official capacities, all of
his substantive constitutional claims fail on the merits—he does not allege any other basis upon
which relief could be granted under 42 U.S.C. § 1983. Accordingly, I will grant Defendants’
motion for summary judgment with respect to Agee’s official capacity claims.
C.
Preliminary Injunction
Finally, Agee filed a motion for preliminary injunction in which he alleges that ROSP’s
“administration” refuses to return him to protective custody and has held him in administrative
segregation for more than a year as “punishment to force [him] to drop” his lawsuit. (Dkt. 43, at
1). He seeks a court order directing unnamed “administrators” to reinstate his protective custody
status and to “stop trying to intimidate [him] into dropping” the action. (Id.). Agee cannot show
he is entitled to this “extraordinary remedy,” Winter, 555 U.S. at 20, however, because
Defendants already established that there is no genuine dispute as to any material fact and that
they are entitled to judgment as a matter of law on the merits of all Agee’s constitutional claims.
None of his claims will procced to trial.
V. Conclusion
Accordingly Defendants’ Motion for Summary Judgment (dkt. 38) will be granted, and
Plaintiff’s Motion for Preliminary Injunction (dkt. 43) will be denied in accordance with the
accompanying order.
18th
ENTER: This _____ day of March, 2019.
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