George v. Neely et al

Filing 12

OPINION. Signed by Senior Judge James P. Jones on 5/9/2024. (Opinion mailed to Pro Se Party/Parties via US Mail)(aab)

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IN THE UNITED STATES DISTRICT COURT
May 09, 2024
FOR THE WESTERN DISTRICT OF VIRGINIA
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ROANOKE DIVISION

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s/A. Beeson

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DESTINED GEORGE,
Plaintiff,
v.
SGT. NEELEY, ET AL.,
Defendants
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Case No. 7:23CV00818
OPINION
JUDGE JAMES P. JONES

Destined George, Pro Se Plaintiff.
The plaintiff, a Virginia inmate proceeding pro se, filed this civil rights
action pursuant to 42 U.S.C. § 1983, alleging that prison officials deprived him of
outside recreation when they refused to allow him to wear “thermal clothes” for
this activity. Compl. 2, ECF No. 1. Upon review of the record, I find that the
action must be summarily dismissed for failure to state a claim.
George names the following VDOC officials as defendants to his § 1983
claims: “Sgt. Neely, Lt. Williams, Lt. Fleming, Unit Manager Collins, Sgt. Taylor,
Major Hall, [and] Warden R. White.” Id. at 1. As to each of these defendants,
George alleges that the defendants “commit[t]ed cruel and unusual punishment by
denying [him] the right to wear [his] thermal clothes to recreation during winter on
a recurring basis,” an action which also allegedly denied him recreation itself. Id.

at 1–3. In addition, he alleges that the supervisory defendants violated his rights
by “allowing and assisting inferior officers in denying [his] right to wear thermal
clothes to recreation during winter.” Id. at 3–4. Finally, George asserts that each
of the defendants violated his right under state law to outside recreation. As relief,
he seeks monetary damages and a preliminary injunction.
Under 42 U.S.C. § 1997e(c)(1), the court must dismiss any § 1983 action
“with respect to prison conditions . . . if the court is satisfied that the action is
frivolous, malicious, [or] fails to state a claim upon which relief can be granted.”
The Eighth Amendment protects prisoners from cruel and unusual living
conditions. Rhodes v. Chapman, 452 U.S. 337, 347 (1981). However, “[T]he
Constitution does not mandate comfortable prisons,” and conditions that are
“restrictive and even harsh . . . are part of the penalty that criminal offenders pay
for their offenses against society.” Id. at 347–49. It is well established that “only
the unnecessary and wanton infliction of pain implicates the Eighth Amendment.”
Wilson v. Seiter, 501 U.S. 294, 297 (1991) (internal quotation marks and citation
omitted). 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).
George’s allegations describe nothing more than an uncomfortable and
occasional situation — participation in outside recreation in winter without his
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thermal clothing. George does not state facts showing that the conditions caused
him any serious physical or emotional injury. At the most, he alleges that when
offered outside recreation on winter days without thermal clothing, he chose to
forego the activity on that occasion. He does not state facts about the conditions he
faced during recreation without thermal clothing or show that those conditions
would have caused him anything more than temporary discomfort. I cannot find
that George’s factual allegations support any viable claim that the defendants’
alleged actions deprived him of any necessity of life or caused him any harm so as
to constitute cruel and unusual punishment under the Eighth Amendment.
For the reasons stated, I will summarily dismiss this action, pursuant to 42
U.S.C. § 1997e(c)(1), for failure to state a claim.
A separate Final Order will be entered herewith.
DATED: May 9, 2024
/s/ JAMES P. JONES
Senior United States District Judge

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