CATHERINE C. BLAKE, District Judge.
James Calhoun-El ("Calhoun-El") brings this action under 42 U.S.C. § 1983 against Defendants Warden Bobby Shearin, Director of Northern Region Jon P. Galley, Administrative Commissioner of Division of Correction Randall Watson, Chief of Security Keith Arnold, Lt. Paul Pennington, Lt. Dale Smith, Sgt. Derek Baer, CO II Christopher Preston, CO II Sharon Skelley, CO II Randolph Bennett and CO II Jeffrey Grabenstein (collectively, the "defendants"). ECF No. 1. The defendants, by their counsel, have moved to dismiss the complaint or, in the alternative, for summary judgment (ECF No. 17), and Calhoun-El has replied. ECF No 23; Exhibits 3 & 4.
Calhoun-El, an inmate at North Branch Correctional Institution ("NBCI"), is seeking compensatory and punitive damages in addition to declaratory relief. He states that on July 12, 2011, he received an infraction for weapon possession, a violation of institutional rule #115 for possessing a broken cable cord, and was later found not guilty of the infraction.
Calhoun-El states on July 21, 2011, he provided Sgt. Baer with documentation proving medical staff had ordered single inmate cell placement for him. Sgt. Baer informed Calhoun-El that he would be returned to a single cell after his release from segregation housing. Upon release from segregation, however, Calhoun-El was not placed in a single-inmate cell. When Calhoun-El objected and refused housing in a two-inmate cell, he was given a notice of infraction and returned to segregation housing. ECF No. 1, attachment at 6. Calhoun-El claims the medical order for single cell status, which was signed and dated by Dr. Ottey on July 22, 2011, was ignored at the adjustment hearing and he was found guilty of the infraction and received sixty days of disciplinary segregation. ECF No. 1, attachment at 6-7.
Next, Calhoun-El states that on July 29, 2011, he was ordered "cuff up" to accept a cell mate. He refused to comply
Calhoun-El claims that he filed two Administrative Remedy Procedure requests (ARPs), NBCI #2461-11, and an unnumbered ARP filed on February 24, 2012,
Calhoun-El states that on February 24, 2012, Lt. Pennington and Officer Bennett placed him in a contingency cell for eight days, without medication, medical equipment, hygiene items, clean clothing, toilet paper, legal paperwork, books, or showers.
Defendants have filed verified exhibits and declarations to support their dispositive motion. They are summarized below.
On July 13, 2011, Calhoun-El received an infraction for violation of institutional rules #100 (involvement in a disruptive activity), #105 (possession of a weapon or any article modified into a weapon), #406 (possession, passing, or receiving contraband), and #408 (misuse, alteration, tampering with, damaging, or destruction of any property, tool, or equipment including possession of any property in a hazardous condition). ECF No. 17, Exhibit 1. Specifically, two pieces of wire, approximately 18 inches long, an electric adaptor with a tampered cover and eleven sheets of carbon paper were discovered in Calhoun-El's cell.
On July 20, 2011, Calhoun-El was given an infraction for violating institutional rules #400 (disobeying a direct order) and #401 (refusing housing). ECF No. 17, Exhibit No. 3. Calhoun-El indicated he refused the housing offered him because he had single-cell status. See id. at 4 and 10.
ECF No. 17, Exhibit 3, at 4.
On August 15, 2011, Calhoun-El filed ARP NBCI #2461-11, raising complaints about his fourteen-day placement in a temporary housing cell on July 29, 2011. ECF No. 17, Exhibit No. 17, at 1-5. He complained he was denied clean clothing, clean bedding, a mattress, showers, hot meals, medication and medical equipment, access to the ARP system, library access, incoming and outgoing mail, sick call request forms, exercise, personal papers and books, and Ramadan fasting. See id. at 1-2. He complained the cell was infested with bugs. See id. By memorandum dated August 31, 2011, Warden Shearin responded to Calhoun-El's concerns:
ECF No. 17, Exhibit 17, at 6-7; see also Exhibit 17, at 9-10 (ARP investigation report).
Calhoun-El appealed the ARP on September 27, 2011. The appeal was dismissed on December 16, 2011. ECF No. 17, Exhibit 18, at 1.
On March 14, 2012, Calhoun-El filed ARP NBCI # 0818-12 complaining that medical staff had created a fraudulent document on February 21, 2012, in order to remove him from single-cell placement. ECF No. 17, Exhibit 19, at 1-2. Further, Calhoun-El alleged that on March 10, 2012, Dr. Ottey had informed him that his single cell status would not expire until September 20, 2012. See id. at 2. Calhoun-El blamed his subsequent placement in the temporary cell on the allegedly fraudulent documentation. See id. As relief, he asked for transfer to a geriatric housing unit at Jessup Correctional Institution. See id.
Investigation of the ARP revealed no evidence to substantiate Calhoun-El's claim that he had been issued single cell status to remain in effect until September 20, 2012, or grounds to find Dr. Joubert's order discontinuing single cell placement fraudulent. See id. at 3. On April 11, 2012, the ARP was dismissed for lack of merit. See id. at 1 & 5-8; Exhibit 25, at 243.
Calhoun-El suffers diabetes with chronic neuropathy,
On August 11, 2011, while Calhoun-El was housed in the temporary cell, he received an unscheduled nurse visit for a blood pressure check. See id. at 316. On August 11, 2011, a chart update was conducted by teleconference to discuss antiviral therapy with Dr. Rufeal, a liver specialist, and to discuss plaintiff's medical appointment "no shows," medical trips, and plaintiff's continued back pain and other ongoing complications. See id. at 315. Calhoun-El went to a court appearance on August 11, 2011. On August 18, 2011, Calhoun-El refused to attend an adjustment hearing. He claimed he was unable to walk to the hearing and needed a wheelchair. ECF No. 17, Exhibit No. 14, at 3. Correctional officers contacted the medical department, and were advised that Calhoun-El had no medical need for a wheelchair. See id.
On August 12, 2011, Calhoun-El filed a sick-call request/encounter form complaining that he was forced to lie on a concrete floor with no mattress for 14 days. He claimed he was unable to walk as a result. ECF No. 27, Exhibit 25, at 111. Additionally, he complained he was without medication for over fourteen days, resulting in chest pain, headaches, and sickness. See id. A nurse sick-call was scheduled for August 13, 2011, but Calhoun-El refused to go to the appointment. See id. at 314.
On January 20, 2012, Calhoun-El submitted a sick-call request complaining of worsening diabetic neuropathy because his medical shoes had been confiscated by staff. ECF No. 17, Exhibit 25, at 86. On January 28, 2012, he filed another sick-call slip complaining his diabetic neuropathy had worsened because his medical shoes were causing him back spasms. Id. at 85. On February 17, 2012, upon his return to NBCI from temporary housing at Jessup Correctional Institution (JCI), Calhoun-El complained that he was without his diabetes, blood pressure and heart medications while housed at JCI on February 15, 16, and 17, 2012. See id. at 80; Exhibit 26, at 4. Defendants observe that Calhoun-El's medical history demonstrates repeated refusals of medications, medical appointments and lab tests. ECF No. 17, Exhibit 25, at 2-31.
Summary judgment is governed by Fed. R. Civ. P. 56(a), which provides that "[t]he court shall 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." This does not mean that any factual dispute will defeat the motion: "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "The party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of [his] pleadings,' but rather must `set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)). A court should "view the evidence in the light most favorable to . . . the nonmovant, and draw all inferences in her favor without weighing the evidence or assessing the witnesses' credibility." Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002). A court must, however, also abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24) (1986)).
To state a cause of action pursuant to 42 U.S.C. § 1983, there must be an allegation of a violation of a federal constitutional right or law. See Baker v. McCollan, 443 U.S. 137, 139-40 (1979). In his complaint, Calhoun-El has failed to allege deprivation of any rights, either constitutional or statutory, which would entitle him to relief under § 1983. Mindful that Calhoun-El is a self-represented litigant, however, this court has accorded his pleadings generous construction. See e.g. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Erikson v. Pardus, 551 U.S. 89, 94 (2007).
The Eighth Amendment prohibits "unnecessary and wanton infliction of pain" by virtue of its guarantee against cruel and unusual punishment. See Gregg v. Georgia, 428 U.S. 153, 173 (1976). "Scrutiny under the Eighth Amendment is not limited to those punishments authorized by statute and imposed by a criminal judgment." De'Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003) (citing Wilson v. Seiter, 501 U.S. 294, 297 (1991)). Conditions which "deprive inmates of the minimal civilized measure of life's necessities" may amount to cruel and unusual punishment. Rhodes v. Chapman, 452 U.S. 337, 347 (1981). However, conditions that are merely restrictive or even harsh "are part of the penalty that criminal offenders pay for their offenses against society." Id. "In order to establish the imposition of cruel and unusual punishment, a prisoner must prove two elements — that `the deprivation of [a] basic human need was objectively sufficiently serious,' and that `subjectively the officials acted with a sufficiently culpable state of mind.'" Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995) (emphasis in original; citation omitted) "These requirements spring from the text of the amendment itself; absent intentionality, a condition imposed on an inmate cannot properly be called `punishment,' and absent severity, such punishment cannot be called `cruel and unusual.'" Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008) (citing Wilson, 501 U.S. at 298-300); see also Farmer v. Brennan, 511 U.S. 825, 838-39 (1994).
Calhoun-El's allegations concerning his two placements in a temporary cell, one of fourteen days beginning on July 29, 2011, and the other of eight days beginning on February 24, 2012, fail to show conditions so extreme as to constitute a deprivation of constitutional magnitude.
The defendants assert Calhoun-El received medical visits and treatment. Notably, the defendants' records indicate Calhoun-El refused to have a mattress in his cell. In his reply, Calhoun-El denies receiving medication and a mattress. ECF No. 23, Exhibit 4. Calhoun-El's medical records, however, show a prior history of raising complaints similar to those he specifically attributed to his two stays in the temporary cell. Indeed, there are similar complaints throughout the medical record. ECF No. 17, Exhibit No. 25. On three medical request slips dated May 31, June 2, and June 10, 2012, all times when Calhoun-El was not housed in a temporary cell, he complained of nose bleeds which he attributed to heat in his cell. See id. at 66-68; Exhibit Nos. 17-19.
Calhoun-El's ARP complaint concerning the conditions during his fourteen-day cell assignment was investigated and resulted in a finding that his out-of-cell activities, meals, and showers had been improperly documented and the cell inappropriately identified as a "contingency cell."
To state a constitutional claim for lack of proper medical care, Calhoun-El must show the actions or inactions of prison authorities demonstrate "deliberate indifference" to a serious medical need. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). Additionally, there must be some personal involvement on the part of prison officials. See Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985).
None of the defendants is a medical practitioner. None of the defendants is alleged to have any direct personal involvement in Calhoun-El's medical care. Moreover, as non-medical officials, they are entitled to rely on the medical judgment and expertise of prison physicians and medical staff concerning the course of treatment necessary for inmates. See Shakka, 71 F.3d at 167; Miltier v. Beorn, 896 F.2d 848, 854-55 (4th Cir. 1990) (stating that supervisory prison officials are entitled to rely on professional judgment of trained medical personnel but may be found to have been deliberately indifferent by intentionally interfering with an inmate's medical treatment ordered by such personnel). Calhoun-El does not allege the defendants interfered with his medical care. Accordingly, defendants are entitled to summary judgment as to this claim.
Prisoners have a constitutionally protected right of access to the courts. See Bounds v. Smith, 430 U.S. 817, 821 (1977). However,
Lewis v. Casey, 518 U.S. 343, 355 (1996).
"Ultimately, a prisoner wishing to establish an unconstitutional burden on his right of access to the courts must show `actual injury' to `the capability of bringing contemplated challenges to sentences or conditions of confinement before the courts.'" O'Dell v. Netherland, 112 F.3d 773, 776 (4th Cir. 1997) (quoting Lewis, 518 U.S. at 356). "The requirement that an inmate alleging a violation of Bounds must show actual injury derives ultimately from the doctrine of standing, a constitutional principle that prevents courts of law from undertaking tasks assigned to the political branches." Lewis, 518 U.S. at 349. Actual injury occurs when a prisoner demonstrates that a "nonfrivolous" and "arguable" claim was lost because of the denial of access to the courts. Id. at 343. Calhoun-El alleges no actual injury as a result of the purported denial of access to the prison library, to incoming or outgoing mail, personal papers and books.
Calhoun-El does not allege, nor does the record suggest, that the disciplinary process violated his right to due process. See Wolff v. McDonnell, 418 U.S. 539, 564-65 (1974) (inmates entitled to certain due process where there is possible loss of good conduct credits); Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985) (disciplinary hearing decision must be based on "some evidence").
Calhoun-El claims he was issued an infraction on February 24, 2012, and placed in a temporary cell in retaliation for filing a "grievance." Retaliation against an inmate for the exercise of a constitutional right states a claim, see American Civ. Liberties Union v. Wicomico County, 999 F.2d 780, 785-86 (4th Cir. 1993). The plaintiff "bears the burden of showing that the conduct at issue was constitutionally protected and that the protected conduct was a substantial or motivating factor in the prison officials' decision." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). In order to state a claim for retaliation, Calhoun-El must demonstrate 1) the invocation of a constitutional right; 2) the intent to retaliate against him for his exercise of that right; 3) a retaliatory adverse act; and 4) causation, i.e., but for the retaliatory motive, the complained-of incident would not have occurred. See Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997). As there is no constitutional entitlement to participate in a prison grievance process, a constitutional claim of retaliation is not supported. See Adams v. Rice, 40 F.3d 72, 75 (4th Cir.1994). Furthermore, Calhoun-El offers no specific evidence to support his claim that filing this unidentified grievance was the cause of his placement on administrative segregation. Indeed the record indicates he has been able to make use of the prison grievance system on multiple occasions without adverse consequence. Accordingly, the defendants will be granted summary judgment as to this claim.
Insofar as Calhoun-El intends to present a claim regarding the ARP process, there is no constitutional right to the establishment of an administrative remedy or other grievance process or to participate in one voluntarily established by the state. See Adams, 40 F.3d at 75. Therefore no constitutional right is implicated by alleged errors in such a process. Further, the defendants' declarations refute Calhoun-El's assertions that he was denied ARP forms while in temporary housing.
Apart from his own statement that he was denied Ramadan fasting, Calhoun-El's assertion is wholly unsubstantiated.
For the reasons stated above, the court will grant the defendants' motion for summary judgment. A separate order follows.
