Al-Musawwir v. Clarke et al
MEMORANDUM OPINION. Signed by Chief Judge Michael F. Urbanski on 3/31/2021. (Opinion mailed to Pro Se Party via US Mail)(slt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
HAROLD W. CLARKE, et al.,
Civil Action No. 7:21-cv-00060
By: Michael F. Urbanski
Chief United States District Judge
Abdul-Hasib Al-Musawwir, a Virginia inmate proceeding pro se, commenced this civil
action under 42 U.S.C. § 1983. His complaint names five defendants: Harold Clarke, who is the
Director of the Virginia Department of Corrections, and four employees at River North
Correctional Center who were involved in the disciplinary conviction that is the focus of AlMusawwir’s complaint. See generally Compl., ECF No. 1.
Under 28 U.S.C. § 1915A(a), the court must conduct an initial review of a “complaint in
a civil action in which a prisoner seeks redress from a governmental entity or officer or employee
of a governmental entity.” See also 28 U.S.C. § 1915(e)(2) (requiring court, in a case where
plaintiff is proceeding in forma pauperis, to dismiss the case if it is frivolous or fails to state a
claim on which relief may be granted). Pleadings of self-represented litigants are given a liberal
construction and held to a less stringent standard than formal pleadings drafted by lawyers.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). Liberal construction does not mean,
however, that the court can ignore a clear failure in pleadings to allege facts setting forth a claim
cognizable in a federal district court. See Weller v. Dep’t of Social Servs., 901 F.2d 387, 391 (4th
Cir. 1990). Applying these standards to Al-Musawwir’s complaint, the court concludes that it is
subject to dismissal pursuant to § 1915A(b)(1), as discussed in more detail below. Furthermore,
nothing about his allegations suggest that an opportunity to amend would cure the deficiencies
in his complaint. Accordingly, the court will dismiss this action with prejudice.
In August 2020, Al-Musawwir was accused of passing a note to a female staff member
and was placed in administrative segregation while the charge was being investigated. 1 Although
he now denies engaging in the conduct, he pled guilty to the disciplinary charge. He explains that
when defendant Murray came to serve him with the charge, Murray began to read the charge in
a “very loud high-pitched voice” so that other inmates in the pod would hear the nature of the
charge. He claims that Murray did this to embarrass him.
In an attempt to stop Murray from reading the charge, which was “infuriating” him, AlMusawwir “accepted the plea” before Murray “beg[a]n to read it.” Id. at 9. He now complains,
however, that he was not advised of his right to remain silent and was not permitted to withdraw
his plea, which he believes is “unfair treatment.” Id. The disciplinary report attached to his
complaint reflects that he accepted a penalty offer of 30 days loss of commissary.
As a result of the disciplinary charge, however, he explains that he lost his job as a teacher’s
aide, was removed from a computer class, and removed from the “Shared Allied Management
Program” and pod. It also prevented him from transferring to a level-3 security facility, a transfer
he had “waited for . . . twenty years” to obtain. Id. at 8.
The complaint contains two claims. In the first, Al-Musawwir claims that his placement
in pre-hearing detention for twenty-two days, ordered by defendants White and Dowell, was
According to the disciplinary report al-Musawwir attached to the complaint, the charge alleged that
“Nurse Waller was given a note from offender A. Al-[M]usawwir” that included statements such as: (1) “I can’t
take a chance of leaving here without knowing if I could have you in my life or not.”; (2) “You need a man in
your life that will protect you and your delicate heart. If you give me the opportunity to be that man I promise
you will never experience that pain again.”; and (3) “I’m in love with you.” ECF No. 1-2, at 15–16.
improper. He asserts that he has been incarcerated for almost twenty-three years and has never
been considered a threat to any person or security, nor does he have any history of any
involvement with any female staff member. As a result, he claims that there was no need for prehearing detention. He thus contends that the pre-hearing detention violated his rights to equal
protection and constituted an Eighth Amendment violation.
He further alleges that the pre-hearing detention was “of a discriminatory nature and was
done with malicious intent” and deprived him of “life and liberty without due process of law.”
Compl. 7. He alleges that he “believe[s] that he was treated [differently] because the staff
member that the alleged note was passed to is a young, Caucasian woman” and he is “a Person
of Color and a Muslim.” Id. at 7–8, 11. He suggests that the incident is an “example of the
systemic racism” at River North. Id. at 7–8.
In what he calls his second claim, he challenges various procedural aspects of the
proceeding against him, including the lack of an adequate investigation, an inability for him to
withdraw his plea, and a denial of evidence he requested, including witness statements and a copy
of the alleged note.
“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.” Loftus v. Bobzien, 848 F.3d 278, 284–
85 (4th Cir. 2017) (internal quotation marks omitted). The court construes Al-Musawwir’s
complaint as alleging an Eighth Amendment violation, a violation of the Due Process Clause of
the Fourteenth Amendment, and a violation of the Equal Protection Clause, and addresses each
A. Eighth Amendment Claim
Al-Musawwir asserts that his Eighth Amendment rights were violated, but the allegations
in his complaint are inadequate to state such a claim. 2 The Eighth Amendment protects
prisoners from cruel and unusual living conditions. Rhodes v. Chapman, 452 U.S. 337, 347
But “the Constitution does not mandate comfortable prisons,” id. at 349, and
conditions that are “restrictive and even harsh . . . are part of the penalty that criminal offenders
pay for their offenses against society.” Id. at 347. To sustain an unconstitutional conditions
claim, a prisoner must show that: (1) objectively, the deprivation was sufficiently serious, in that
the challenged, official acts caused denial of “the minimal civilized measure of life’s necessities”;
and (2) subjectively, the defendant prison officials acted with “ ‘deliberate indifference’ to inmate
health or safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citations omitted). To establish
the first element, the prisoner must show “significant physical or emotional harm, or a grave
risk of such harm,” resulting from the challenged conditions. Shakka v. Smith, 71 F.3d 162,
166 (4th Cir. 1995).
Al-Musawwir claims that he was affected emotionally by the events alleged in his
complaint, but he has not identified an objectively serious condition creating significant physical
or emotional harm, or a grave risk of such harm. See id. Any Eighth Amendment claim fails.
B. Due Process Claim
Al-Musawwir also asserts a violation of his Fourteenth Amendment right to due process,
but he has failed to state facts giving rise to a constitutional violation. To state a violation of due
To the extent plaintiff’s claim is that it was “cruel and unnecessary” for him even to be placed in
segregation, that is better construed as a substantive due process claim and is subsumed in the court’s due
process, a § 1983 plaintiff must first “identify a protected liberty or property interest” of which
he was deprived. Prieto v. Clarke, 780 F.3d 245, 248 (4th Cir. 2015). To do so, he 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.” Id. at 251.
Disciplinary segregation, however, generally does not present the type of atypical,
significant deprivation that would give rise to a protected liberty interest. Sandin v. Conner, 515
U.S. 472, 484 (1995) (holding that a thirty-day placement in administrative segregation did not
create a liberty interest). The Fourth Circuit has recognized that extended, indefinite stays in
extremely restrictive environments might be sufficient to create a liberty interest. Incumaa v.
Stirling, 791 F.3d 517, 531–31 (4th Cir. 2015). Here, though, Al-Musawwir states that he was
placed in prehearing segregation for 22 days. Even if the environment was extremely restrictive,
that is less time than the plaintiff in Sandin spent in segregation. Neither that temporary
placement, nor the later suspension of his commissary privileges for thirty days, triggered a
constitutionally protected liberty or property interest. Prieto, 780 F.3d at 248; Malchi v. Thaler,
211 F.3d 953, 958 (5th Cir. 2000) (explaining that a 30-day loss of commissary privileges “clearly”
did “not implicate due process concerns”); Gaston v. Taylor, 946 F.2d 340, 343 (4th Cir. 1991)
(reasoning that the denial of privileges is a matter “which every prisoner can anticipate are
contemplated by his original sentence to prison” and does not trigger due process protections).
The same is true of the collateral consequences of his disciplinary conviction, such as the loss of
his prison job. See Alley v. Angelone, 962 F. Supp. 827, 834 (E.D. Va. 1997) (holding that a
prisoner did not have a protected interest in continued prison employment). Because no
constitutionally protected liberty or property interest was involved in these events, no
constitutional due process violation can stem from the proceedings that resulted in them, even if
there were procedural deficiencies. For this reason, his due process claims fail as a matter of
C. Equal Protection Claim
To the extent that Al-Musawwir’s allegations of differential treatment are intended to
assert a claim that his rights under the Equal Protection Clause were violated, his allegations are
wholly inadequate to state such a claim.
The Equal Protection Clause of the Fourteenth Amendment provides that a state may not
“deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend.
XIV, § 1. It thus directs that “all persons similarly situated should be treated alike.” City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1982). To establish an equal protection
violation, a plaintiff “must first demonstrate that he has been treated differently from others with
whom he is similarly situated and that the unequal treatment was the result of intentional or
purposeful discrimination”; once this showing is made, “the court proceeds to determine whether
the disparity in treatment can be justified under the requisite level of scrutiny.” Veney v. Wyche,
293 F.3d 726, 730–31 (4th Cir. 2002) (citations omitted).
Although Al-Musawwir summarily states that he believes he was treated differently
because of his race and religion, he points to no other similarly situated offender who was treated
differently. He also fails to set forth any facts supporting his conclusory assertion that his
treatment was harsher because of his race and religion, merely pointing to the fact that the staff
member to whom the note was passed was a white woman. This is insufficient to adequately
state a claim, however. Instead, to succeed on an equal protection claim, a plaintiff must set forth
“specific, non-conclusory factual allegations that establish improper motive.”
Hansen, 326 F.3d 569, 584 (4th Cir. 2003). “[M]ere conclusory assertions” of discriminatory
intent are insufficient, id., and that is all that Al-Musawwir offers. Accordingly, his complaint
fails to state an equal protection claim, too.
For the foregoing reasons, the court will summarily dismiss this action pursuant to 28
U.S.C. § 1915A(b)(1), for failure to state a claim upon which relief can be granted.
An appropriate order will be entered.
Entered: March 31, 2021
Michael F. Urbanski
Chief U.S. District Judge
2021.03.31 15:18:40 -04'00'
Michael F. Urbanski
Chief United States District Judge
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