250 F.Supp.2d 593

United States District Court, E.D. Virginia,
Alexandria Division.

Dan OLIVER, Plaintiff,

v.

H. POWELL, et al., Defendants.

No. CIV.A. 01-411-AM.

Sept. 4, 2002.

Prisoner brought civil rights suit against prison officials and employees. On cross-motions for summary judgment, the District Court, Hilton, Chief Judge, held that: (1) supervisors had no supervisory liability under allegations of complaint; (2) guards' alleged conduct did not unconstitutionally retaliate against prisoner for filing prior civil rights suits; (3) prisoner's right to meaningful access to courts was not violated; (4) claims of alleged verbal harassment, late evening mail delivery, and similar complaints of like severity were too de minimus to state constitutional violation; (5) prison policy of opening and reading incoming general correspondence was justified by legitimate penological interests; (6) prison regulation limiting weight and size of incoming general correspondence was justified; and (7) regulation authorizing examination of outgoing mail upon reasonable suspicion of illegal activity was constitutional.
Motions granted in part and denied in part.

*597 Dan L. Oliver, Waverly, VA, pro se.
Pamela Anne Sargent, Office of Atty. Gen, Richmond, VA, for defendants.

MEMORANDUM OPINION


HILTON, Chief Judge.
This matter is before the Court on cross Motions for Summary Judgment. On December 28, 2001, the Court received responsive materials from the plaintiff. Thus, this matter is ripe for disposition. For the reasons that follow, defendants' Motion for Summary Judgment must granted, and plaintiff's Motion for Summary Judgment must be denied.

I.

Plaintiff was incarcerated at Southampton Correctional Center from December 28, 1999 through October 6, 2000. This action presents a laundry list of claims alleged during his stay there. Plaintiff raises the following claims in his complaint:
1. Defendants filed false disciplinary charges against him in retaliation for lawsuits filed against prison officials;
2. Defendants held plaintiff in his cell past his allotted law library time;
3. Defendants returned plaintiff's personal mail without notice to him, nor an explanation to the sender of the reason for the return;
4. Defendants called plaintiff out of school and harassed him about his grievances;
5. Defendants issued passes in conflict with his school schedule;
6. Defendants woke plaintiff at 11:30 p.m. to deliver his mail;
7. Defendants limited plaintiff to one grievance per week for 135 days because he filed them against prison officials;
8. Defendants refused to investigate an assault on plaintiff committed by an inmate and an officer;
9. Defendants assaulted plaintiff by poking him in the back just because he did not hear them;
10. Defendants opened plaintiff's legal mail outside his presence on two occasions;
11. Defendants refused to send plaintiff's letters to the governor and others;
12. Defendants deprived plaintiff of sleep while housed in the segregation unit by making noise;
13. Defendants transferred plaintiff to a higher classification level facility based on false disciplinary charges;
14. Defendants placed plaintiff in a segregation cell with roaches, leaky toilets, peeling paint, and writing on the walls;
15. DOP 851, VDOC's policy regarding the processing of general correspondence, is unconstitutional, depriving plaintiff of his First, Fourth, Fifth, and Fourteenth Amendment rights;
16. DOP 861.6-5, a VDOC regulation authorizing fines for disciplinary charges filed, is unconstitutional, depriving plaintiff of his First, Fourth, Fifth, and Fourteenth Amendment rights;

*598 II.

The principles governing disposition of summary judgment motions are well-established. On a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The facts themselves, and the inferences to be drawn from those facts, must be viewed in the light most favorable to the non-moving party. See Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir.1985). Summary judgment is appropriate when a party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The opposing party must do more than simply show there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Moreover, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Only factual disputes that might affect the outcome of the suit under governing law will properly preclude ... summary judgment. Id. at 248, 106 S.Ct. 2505. And finally, where the non-moving party bears the burden of proof at trial, as here, Rule 56(e) requires the non-moving party to go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

III.

As a preliminary matter, defendants Johnson, Harrison, and Gilmore must be dismissed from the outset. To establish § 1983 liability, a plaintiff must affirmatively show that the official charged acted personally in the deprivation of the plaintiff's rights. Wright v. Collins, 766 F.2d 841, 850 (4th Cir.1985) (citations and quotations omitted). Accord Garraghty v. Virginia, 52 F.3d 1274, 1280 (4th Cir.1995); Wheeler v. Gilmore, 998 F.Supp. 666, 668 n. 5 (E.D.Va.1998). Moreover, plaintiff may not avail himself of the doctrine of respondeat superior, as this doctrine is inapplicable to § 1983 claims. Wright, 766 F.2d at 850. Thus, each named defendant must have had personal knowledge of and involvement in the alleged violations of plaintiff's constitutional rights for the action to proceed against them. In the instant complaint, plaintiff fails to include defendants Johnson and Harrison in any of the allegations. Moreover, defendant Gilmore is mentioned peripherally. Thus, it is clear that plaintiff included these defendants in an attempt to implicate them under the doctrine of respondeat superior.

It is a well-established principle that respondeat superior is not a basis for liability under 42 U.S.C. § 1983. Phrased differently, § 1983 does not permit a state official to be held liable solely because one of his or her employees committed a tort. See Monell v. Dep't of Soc. Serv. of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

The doctrine of supervisory liability, however, renders supervisors liable under § 1983 for constitutional torts committed by employees in furtherance of official policies, including regulations, ordinances, decisions, and informal customs. See id. at 690-91, 98 S.Ct. 2018. The *599 Fourth Circuit has held that supervisors may also be held liable for indifference or tacit authorization of subordinates' misconduct. See Slakan v. Porter, 737 F.2d 368, 372 (4th Cir.1984); Wellington v. Daniels, 717 F.2d 932, 935-36 (4th Cir.1983) (holding that municipalities may be liable for omissions, which include indifference or tacit authorization).

In making a claim of supervisory liability in the prison context, a plaintiff has the burden of showing that prisoners face a pervasive and unreasonable risk of harm from some specified source [and that] the supervisor's corrective inaction amounts to deliberate indifference or tacit authorization···. Slakan, 737 F.2d at 373 (quoting Orpiano v. Johnson, 632 F.2d 1096, 1101 (4th Cir.1980)). Moreover, a plaintiff cannot satisfy this burden of proof by pointing to a single incident or isolated incidents ···· Id. (emphasis added). Instead, supervisory liability may only be imposed where there is a history of widespread abuse. Wellington, 717 F.2d at 936. Therefore, a plaintiff who is able to prove deliberate indifference, tacit authorization, or widespread and pervasive abuses may be able to establish supervisory liability under 42 U.S.C. § 1983. No such showing has been made in the instant action. Therefore, defendants Johnson, Harrison, and Gilmore must be dismissed.

Further, plaintiff names all of Southampton Correctional Center as a defendant in this action. Correctional centers and jails are immune under § 1983 and are not considered proper defendants. See McCoy v. Chesapeake Corr. Ctr., 788 F.Supp. 890 (E.D.Va.1992). Therefore, insofar as plaintiff names Southampton Correctional Center as a defendant, it must be dismissed.

IV.

In their motion for summary judgment, defendants raise the defense of qualified immunity. To avoid excessive disruption of government, a qualified immunity is recognized to protect government officials performing discretionary functions from civil damage suits insofar as the official's conduct does not violate clearly established rights of which a reasonable person would have known. Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir.2000) (internal quotations omitted). The Supreme Court of the United States has adopted a two-prong test for evaluating claims of qualified immunity. The threshold inquiry a court must undertake in a qualified immunity analysis is whether plaintiff's allegations, if true, establish a constitutional violation. Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 2513, 153 L.Ed.2d 666 (2002). [I]f so, [the court must] then proceed to determine whether that right was clearly established at the time of the alleged violation. Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). Moreover, with regard to the latter inquiry, it must be determined whether a reasonable state official could have understood that the conduct at issue violated the clearly established right. See, e.g., Henderson v. Simms, 223 F.3d 267, 273 (4th Cir.2000).
Thus, analyzing the application of qualified immunity requires that the Court first review the merits of plaintiff's constitutional claims. In the instant case, plaintiff has not alleged a deprivation of an actual constitutional right. If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. Saucier, 533 U.S. at 201, 121 S.Ct. 2151. As a result, the Court need not proceed beyond the initial inquiry.

*600 Claim 1

Plaintiff sets forth many instances in which he claims that defendants filed false disciplinary charges in retaliation for a § 1983 action he filed against Southampton Correctional Center and Sussex I State Prison. Among them, he claims that defendants Powell, Pixley, Grizzard and Fleming failed to act when: plaintiff informed him that defendant Hedgepeth was willing to lie about plaintiff threatening him; officers lied, stating that plaintiff did not want to be present at his disciplinary hearing and falsified dates on a disciplinary charge; defendant Sykes filed false disciplinary charges against plaintiff for use of profanity and disobeying a direct order on two separate occasions; defendant Sykes lied about plaintiff's commissary privileges and falsely informed plaintiff that he could enter the staff mess hall to talk to a prison official; defendant Bynum threatened to lie and state that plaintiff threatened her and filed a false disciplinary charge against him; that he was being subjected to false disciplinary charges due to a § 1983 action filed against defendants; and that defendant Hedgepeth violently pulled the clear plastic from his cell door after he dropped a grievance against him.

Prisoners have a constitutional right to meaningful access to the courts, with which the state may not interfere. Hudspeth v. Figgins, 584 F.2d 1345, 1347 (4th Cir.1978). Although not expressly addressed in the Constitution, a prisoner may also bring a retaliation claim against a prison employee because such action may tend to chill plaintiff's exercise of constitutional rights. Ballance v. Young, 130 F.Supp.2d 762 (W.D.Va.2000). However, if defendant's actions did not chill, impair, or deny plaintiff's right to exercise his constitutional right, the allegations fail to state a retaliation claim cognizable under § 1983. Id. Moreover, a de minimis inconvenience in exercise of the right caused by defendant's actions does not state a claim. Id.

Plaintiff's claims against defendants fail because there is no evidence that plaintiff's constitutional rights have been chilled. In order to prove a retaliation claim, the prisoner must demonstrate that his litigation activities constituted the actual motivating factor, or the but for cause of the conduct. Dillon v. Murray, 853 F.Supp. 199, 202 (W.D.Va.1994) (citations omitted). Where plaintiff claims that he suffered retaliation for filing a lawsuit, he must show that the retaliatory acts adversely impacted his right to access the courts. Talbert v. Hinkle, 961 F.Supp. 904, 911 (E.D.Va.1997) (citing Wicomico County, 999 F.2d at 785).

Nowhere does plaintiff mention his inability to prosecute his previously filed civil actions against prison officials. In fact, during the relevant period, plaintiff filed at least three separate civil actions against prison officials in this Court. See Oliver v. Taylor, No. 00-CV-706 (E.D. Va. June 12, 2000); Oliver v. Taylor, No. 00-CV-1131 (E.D.Va. July 28, 2000); Oliver v. Powell, No. 00-1643 (E.D. Va. June 19, 2001). Although plaintiff claims that defendants acted in retaliation, plaintiff has suffered no actual harm. Plaintiff has never alleged how his litigation was harmed by defendants' retaliatory actions. Thus, [b]are assertions of retaliation do not establish a claim of constitutional dimensions. Garrett v. Angelone, 940 F.Supp. 933, 944 (W.D.Va.1996).

And finally, with respect to plaintiff's claim that defendant Hedgepeth violently pulled clear plastic from his cell door, plaintiff has failed to provide any factual allegations that rise to the level of *601 a constitutional violation. Therefore, this claim must also be dismissed.

Claim 2

Plaintiff claims that defendants held him in his cell past his allotted law library time. Liberally construed, this may be a claim of interference with plaintiff's right of access to the courts. Prisoners have a fundamental right to adequate, effective, and meaningful access to the courts. Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). There are no set parameters of what the right to access to the courts entails. Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). However, it can be satisfied either by providing prisoners with adequate law libraries or with adequate assistance from persons trained in the law. Hause v. Vaught, 993 F.2d 1079 (4th Cir.1993). Moreover, to prove that he has been denied this right, a prisoner must show that he has suffered actual injury because of the restrictions imposed by the limited resources available. See, e.g., Strickler v. Waters, 989 F.2d 1375, 1382 (4th Cir.1993); Magee v. Waters, 810 F.2d 451, 452-53 (4th Cir.1987).

The requirement of actual injury has been held to mean the deprivation of legal materials actually prevented [plaintiff] from meeting deadlines, or otherwise prejudiced him in any pending litigation, or actually impeded his access to the courts. Oswald v. Graves, 819 F.Supp. 680, 683 (E.D.Mich.1993). See also Bryant v. Lee, 993 F.2d 1535, 1993 WL 188302 (4th Cir.1993) (unpublished) (two week delay in receiving legal mail caused missed deadlines and lost settlement opportunity); Sizemore v. Williford, 829 F.2d 608, 610 (7th Cir.1987). In the instant action, plaintiff has not alleged any facts which establish that defendants' actions prevented him from pursuing pending nonfrivolous litigation.

Moreover, changes in a prisoner's daily routine, and the denial of privileges are necessarily functions of prison management that must be left to the broad discretion of prison administrators to enable them to manage prisons safely and effectively. Gaston v. Taylor, 946 F.2d 340 (4th Cir.1991) (en banc) (citation omitted). See also DeBlasio v. Johnson, 128 F.Supp.2d 315 (E.D.Va.2000). Therefore, plaintiff also has no liberty interest against such changes in his confinement.

Claim 3

Plaintiff claims that he complained of [his] mail being returned to the sender, without notifying me and without explaining to the sender why the letter was returned to them. Which letter contained 75.00, dollars, my monthly income. (Compl. at 3.) To state a civil rights claim, plaintiff must allege that he sustained a deprivation of a right, privilege, or immunity secured by the Constitution or federal law. See Inmates v. Owens, 561 F.2d 560 (4th Cir.1977). In addition, plaintiff must have standing to maintain a § 1983 action. To demonstrate standing, plaintiff must allege an actual or threatened injury that is fairly traceable to defendants' allegedly unlawful conduct and likely to be redressed by requested relief. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984); Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); Kemler v. Poston, 108 F.Supp.2d 529 (E.D.Va.2000). In the instant claim, plaintiff fails to specify any defendants, whose actions were fairly traceable to an actual injury. Accordingly, this claim must be dismissed.