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Virginia Leads the Nation in K-9 Attacks on Prisoners

An attack dog bites with enough force to puncture sheet metal. That same bite in human flesh is horrifyingly painful, leaving mental as well as physical trauma. Yet in the prison systems of eight states, attack-trained “K-9” dogs have been used on prisoners in the past six years, according to a July 2023 report by Insider.

The U.S., with its long and troubling history of using dogs to control Black men—who are vastly overrepresented in the country’s incarcerated population—is unique among nations; according to Human Rights Watch researchers, no other prison system in the world uses dogs to attack people in the confined space of a cell.

In her investigative report, Patrol Dogs Are Terrorizing and Mauling Prisoners Inside the United States, Hannah Beckler identified 12 state prison systems that use vicious attack dogs against prisoners. Since 2017, K-9s and their handlers have been involved in 295 mauling attacks in at least 23 prisons in eight states—Arizona, Connecticut, Delaware, Indiana, Iowa, Massachusetts, New Jersey and Virginia. The attacks have left prisoners with permanent injuries, post-traumatic stress disorder and recurring nightmares.

Some of the worst attacks have occurred in Virginia, the state with the dubious distinction of deploying prison attack dogs more than any other. From 2017 to 2022 patrol dogs attacked 271 men at seven lockups in the Old Dominion. The dogs are released to bite prisoners who don’t immediately comply with orders or during fights. Most incidents happen during cell extractions.

At Red Onion State Prison, a “supermax” lockup in western Virginia that the federal Office of Justice Programs flagged in 1999 for “serious human rights concerns,” Warden Rick White said attack dogs serve to intimidate prisoners. It turns out to be a common practice at Red Onion: K-9s were used more than 200 times in 2022, and internal records show dogs attacked prisoners four times a month between 2016 and 2022.

Linwood Mathias was one of seven Black men attacked in Virginia prisons from 2011 to 2022 who publicly denounced the excessive use of force and racial discrimination they suffered. His memories from March 15, 2017, are not atypical: “shot at with less-lethal rounds” before he “dropped to the floor by the cell door, face down, arms outstretched,” only to feel “teeth like an alligator’s bite down on his lower leg.” Afterward, Mathias said “his lower leg looked like ground beef.”

The brutal attack left him with 42 stitches, hospitalized for 13 days for three surgeries to clean and debride the wound for infections. First forced to use a wheelchair, then a walker, Mathias endured months of painful physical therapy. The crushing force of the bite left his calf muscle frozen. Years later, as a free man, he uses a cane when his leg swells and aches with nerve pain. Other memories haunt him, too, especially the racial slur hurled by the handler as the K-9 attacked: “Get ’em, boy! Get that nigger!”

At least four Virginia prisoners have filed pro se complaints alleging they suffered excessive use of force and racial discrimination in K-9 attacks since 2017. Former Red Onion prisoner Xavia Goodwyn lost at a bench trial, a decision affirmed by the U.S. Court of Appeals for the Fourth Circuit on August 12, 2020. See: Goodwyn v. Roop, 2020 U.S. Dist. LEXIS 144780 (W.D. Va.). A complaint filed by Marcus J. Barbee over an attack at Wallens Ridge State Prison met a similar fate on November 8, 2021, as did a third filed by River North Correctional Center prisoner Thomas A. Rose on May 9, 2022. See: Barbee v. Anderson, 2021 U.S. App. LEXIS 33127 (4th Cir.); and Rose v. Adams, 2022 U.S. App. LEXIS 12483 (4th Cir.). In the fourth suit, River North prisoner Michael D. Edwards lost his motion for summary judgment on September 19, 2022. See: Edwards v. White, 2022 U.S. Dist. LEXIS 168661 (W.D. Va.).

Despite puncture wounds, stitches, massive blood loss, nerve pain, permanent scarring, mental anguish and nightmares caused by these maulings, courts have credited guards’ testimony that K-9 use was justified by the prisoner’s obstinance. However, a suit filed in federal court for the District of Massachusetts by state prisoner Dionisio Paulino over a 2020 K-9 attack is still pending, offering some hope to right that upside-down view. See: Silva-Prentice v. Turco, USDC (D. Ma.), Case No. 1:21-cv-11580.

Prison officials defend the use of attack dogs as “manpower multipliers,” an oddly apt euphemism since one dog can inflict as much damage as several guards. But the lack of uniform regulations raises concerns about proper use of these animals, while also highlighting the need to reevaluate policies governing their deployment in prison settings.  

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Related legal cases

Goodwyn v. Roop

Goodwyn v. Roop

United States District Court for the Western District of Virginia, Roanoke Division

August 12, 2020, Decided; August 12, 2020, Filed

Civil Action No. 7:17CV00271



2020 U.S. Dist. LEXIS 144780 *; 2020 WL 4677403

XAVIA T. GOODWYN, Plaintiff, v. ROOP, et al., Defendants.

Subsequent History: Affirmed by, Motion denied by, As moot Goodwyn v. Corr. Officer, 2022 U.S. App. LEXIS 19111 (4th Cir. Va., July 12, 2022)

Prior History: Goodwyn v. Roop, 2020 U.S. Dist. LEXIS 145805, 2020 WL 4689848 (W.D. Va., July 23, 2020)

Counsel:  [*1] Xavia T. Goodwyn, Plaintiff, Pro se, Pound, VA.

For Roop, Correctional Officer; K-9 Unit, R. Adams, J. Statzer, J. W. Kiser, Lieutenant Red Onion State Prison, Defendants: Laura Elizabeth Maughan, LEAD ATTORNEY, Laura Haeberle Cahill, Office of the Attorney General - Richmond, Richmond, VA.

For J. Roberts, Shannon K. Hayes, S.B. Franklin, John Messer, Jordan Fleming, Jerel Dickenson, Defendants: Laura Haeberle Cahill, Laura Elizabeth Maughan, LEAD ATTORNEYS, Office of the Attorney General - Richmond, Richmond, VA.


Opinion by: NORMAN K. MOON





Xavia T. Goodwyn, a Virginia prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. After my rulings on summary judgment, the remaining claims were tried in a bench trial before the assigned magistrate judge, who issued a Report and Recommendation ("R&R") on those claims. (Dkt. No. 140.) The R&R recommends that I rule in defendants' favor as to all claims. (See generally id.) Goodwyn timely filed "Objections" to the Report (Dkt. No. 141), which are addressed herein.

For the reasons set forth below, I conclude that Goodwyn's objections [*2]  either are not sufficiently specific to trigger de novo review, or are not timely because they challenge prior rulings, rather than the R&R. Moreover, even reviewing them de novo, I conclude that the objections lack merit. For these reasons, I will overrule Goodwyn's objections and adopt the R&R in full, including its proposed findings of fact and conclusions of law. By separate order, I will enter judgment in favor of defendants on all remaining claims.


The factual background of the claims and description of the trial testimony and documentary evidence is set forth in the R&R. Given the nature of Goodwyn's objections, which do not challenge any specific portions of the R&R, I will not reiterate that background here, but simply incorporate it by reference. (R&R 1-2, 5-7, 12-29.)

Goodwyn's filing lists five numbered objections. The first three, however, are all part of a single objection—that he had to proceed pro se at trial. He notes that he requested legal representation from the court in two separate motions, that this was his "first lawsuit" and he "needed legal guidance" because he did not "know civil law," and that he "made the court aware of [his] lack of legal knowledge [*3]  in [his] motions, . . . as well as during [the] pretrial conference call. (Objs. 1-3, Dkt. No. 141 at 2.) In his fourth objection, he simply alleges that opposing counsel "used [Goodwyn's] disadvantage to [counsel's] advantage at trial." (Obj. 4, Dkt. No. 141 at 3.) As to this objection, Goodwyn offers no additional detail or argument. Fifth and finally, he requests that the court grant him "an appeal" and "another opportunity to properly present [his] case to the court." (Obj. 5, Dkt. No. 141 at 3.)


A. Legal Standard

Federal Rule of Civil Procedure 72 permits a party to submit objections to a magistrate judge's R&R within fourteen days. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b). The district court conducts a de novo review of those portions of a magistrate's R&R to which specific objections were made. Fed. R. Civ. P. 72(b)(3); Orpiano v. Johnson, 687 F.2d 44, 48 (4th Cir. 1982). In addressing proper objections, the district court may give a magistrate judge's R&R "such weight as its merit commands and the sound discretion of the judge warrants," United States v. Raddatz, 447 U.S. 667, 682-83, 100 S. Ct. 2406, 65 L. Ed. 2d 424 (1980) (internal quotations omitted), but must exercise its "non-delegable authority" "by considering the actual testimony," Wimmer v. Cook, 774 F.2d 68, 76 (4th Cir. 1985) (citations omitted). The district court may accept, reject, or modify the recommended disposition based on its de novo review of the recommendation and the [*4]  objections made. Fed. R. Civ. P. 72(b)(3).

Significant here, however, de novo review is required only of those portions of the R&R to which a timely objection has been made. Fed. R. Civ. P. 72(b)(3) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to."); United States v. Raddatz, 447 U.S. 667, 673-74, 100 S. Ct. 2406, 65 L. Ed. 2d 424 (1980) (finding that de novo review of the magistrate's report and recommendation comports with due process requirements). For an objection to trigger de novo review, it must be made "with sufficient specificity so as reasonably to alert the district court of the true ground for the objection." United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007). Further, objections must respond to a specific error in the report and recommendation. See Orpiano, 687 F.2d at 47. General or conclusory objections, therefore, are not proper; they are in fact considered the equivalent of a waiver. Id.

B. Goodwyn's Objections

1. Objections 1-3, Appointment of Counsel

As noted, Goodwyn's first three objections all challenge his being required to try the case without counsel. Goodwyn is correct that he filed two motions requesting the appointment of counsel. The first of these (Dkt. No. 79) was denied without prejudice by the magistrate judge (Dkt. No. 82). As was explained to Goodwyn in that order,

[t]he court cannot [*5]  require an attorney to represent an indigent civil plaintiff. See Mallard v. U.S. Dist. Ct. for S. Dist. of Iowa, 490 U.S. 296, 309, 109 S. Ct. 1814, 104 L. Ed. 2d 318 (1989). However, the court may request that an attorney represent an indigent plaintiff when "exceptional circumstances" exist. Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). Exceptional circumstances depend on the type and complexity of the case and the ability of the plaintiff to present it. Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated on other grounds by Mallard, 490 U.S. at 309. The court finds that plaintiff's circumstances are not sufficiently exceptional to justify appointment of counsel at this time . . . .

(Dkt. No. 82 at 1.)

As to Goodwyn's second motion to appoint counsel, the magistrate judge did not deny the motion. The order instead noted the inability of the court to require an attorney to represent plaintiff and also noted that the court had not found "exceptional circumstances" in Goodwyn's case. (Dkt. No. 89 at 1.) The order nonetheless granted the motion to a limited degree. Specifically, the order states:

In furtherance of the interests of justice, however, and as part of this court's efforts to have members of the bar undertake representation of indigent and incarcerated pro se plaintiffs in matters of this nature that are set for trial, I hereby GRANT Goodwyn's motion, Dkt. No. 87, to the extent that the [*6]  court will invite attorneys, via email, to enter an appearance on the plaintiff's behalf within 14 days of this Order's entry. If no attorney enters an appearance on the plaintiff's behalf within 14 days from the entry of this order, however, plaintiff should be prepared to continue to prosecute his action pro se.

(Dkt. No. 89 at 1-2.) Moreover, a staff note on the docket reflects that an email with information about plaintiff's case was sent to a list of attorneys who have expressed an interest in representing indigent or incarcerated plaintiffs in civil cases. (Staff Note dated September 12, 2019.) More than four months passed between the sending of that email and the start of trial, and no attorney ever entered an appearance for Goodwyn.

As an initial matter, Goodwyn's objections on this issue are not timely. He was required to object to the magistrate judge's rulings on these non-dispositive matters within 14 days after receiving the order. Fed. R. Civ. P. 72(a). Here, the actual rulings on Goodwyn's requests for counsel were made many months before he filed his objections, and so "he may not assign as error a defect" in those orders. See id. However, even if they were proper objections to the R&R and [*7]  I were reviewing them de novo, I agree with the magistrate judge's treatment of Goodwyn's requests for counsel, based on the entire record and the trial transcript. In particular, I agree that this case did not involve "extraordinary circumstances," in light of the factors set forth in Whisenant, 739 F.2d at 163, which include the type and complexity of the case and the ability of the plaintiff to present it.

As to the first, this case was a fairly straightforward excessive force case and not particularly complex. The claims were based on a series of discrete events, but they all took place over the course of a single morning. The factual issues were not complicated—the dispute at trial was whether the incidents occurred as Goodwyn alleged or not.

As to the second consideration, Goodwyn showed that he was able to express himself adequately, both in writing before trial and at trial. While testifying, he was able to provide a reasonably clear account of what he alleges occurred, and he was able to question defendants' witnesses concerning potential weaknesses or inconsistencies in their versions of events. The transcript reflects that Goodwyn was dissatisfied with the answers given by some of defendants' witnesses [*8]  and that he believed they were not telling the truth. (See, e.g., Trial Tr. 174, 215, 312-13, Dkt. No. 138.) But the fact that Goodwyn was unable to elicit the testimony he wanted or that he asserts certain testimony was false does not mean that he was unduly hampered by proceeding pro se. Moreover, although "[d]istrict judges have no obligation to act as counsel or paralegal to pro se litigants," the magistrate judge not only explained aspects of trial procedure to Goodwyn during the trial, but also assisted in asking questions to elicit information relevant to Goodwyn's claims.

In short, no exceptional circumstances existed to warrant appointment of counsel in this case. Thus, Goodwyn's objections to the magistrate judge's rulings on his motions for appointment of counsel are OVERRULED.

2. Objection 4, Opposing Counsel's Conduct

Goodwyn's next objection is entirely vague and likewise does not trigger de novo review. He accuses opposing counsel of "taking advantage" of his pro se status, but he provides no specific examples and points to nothing to support this assertion. Furthermore, the transcript reflects that opposing counsel was generally cooperative and respectful of Goodwyn. For [*9]  example, counsel repeatedly assisted Goodwyn in displaying portions of the videos by operating the video display. He also assisted Goodwyn in providing copies of exhibits when Goodwyn did not have them. Goodwyn's fourth objection is OVERRULED.

3. Objection 5, Requesting Appeal

As to Goodwyn's final objection, it again is not an objection to any portion of the R&R and does not trigger de novo review. Instead, he merely asks for an "appeal" and for another chance to present his case. His objections were his opportunity to ask for review of the R&R. And, for the reasons discussed herein, I will adopt the R&R in its entirety. After the accompanying judgment is entered in this case, however, Goodwyn may appeal this court's decision to the United States Court of Appeals for the Fourth Circuit by filing a notice of appeal within the time set forth in Federal Rule of Appellate Procedure 4(a)(1)(A). Thus, although he is certainly permitted to appeal the court's judgment, his fifth objection is otherwise OVERRULED.

C. Findings of Fact and Conclusions of Law1

Having addressed the objections raised by Goodwyn, I turn now to the remainder of the R&R, which I review for clear error. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) ("[I]n the absence of a timely filed objection, a district court [*10]  need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'") (quoting Fed. R. Civ. P. 72 advisory committee's note). Upon reviewing the record here, including the trial transcript and evidence, I am satisfied that there is no clear error in the R&R. Accordingly, I will adopt the R&R in its entirety and specifically adopt its proposed factual findings and legal conclusions as my findings of fact and conclusions of law, pursuant to Rule 52(a)(1).


For the above reasons, Goodwyn's objections will be overruled, the R&R will be adopted in its entirety, and judgment will be entered in defendants' favor as to all remaining claims. A separate order and final judgment will be entered.

ENTER: This 12th day of August 2020.

/s/ Norman K. Moon




For the reasons set forth in the accompanying Memorandum Opinion, Findings of Fact, and Conclusions of Law, it is hereby ORDERED as follows:

1. Plaintiff's objections (Dkt. No. 141) to the magistrate judge's Report and Recommendation (Dkt. No. 140) are OVERRULED, and the Report and Recommendation is [*11]  ADOPTED in its entirety, including all of its recommended Factual Findings and Legal Conclusions;

2. Judgment is hereby ENTERED in favor of defendants as to all remaining claims; and

3. This matter is STRUCK from the active docket of the court.

ENTER: This 12th day of August 2020.

/s/ Norman K. Moon




End of Document


Federal Rule of Civil Procedure 52(a)(1) provides that "[i]n an action tried on the facts without a jury ... the court must find the facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court."

Rose v. Adams

Rose v. Adams

United States Court of Appeals for the Fourth Circuit

May 9, 2022, Filed

No. 22-6413



2022 U.S. App. LEXIS 12483 *; 2022 WL 6105469

THOMAS A. ROSE, Plaintiff - Appellant v. OFFICER ADAMS, Correctional Officer at RNCC; OFFICER E PAISELY; K-9 SGT. J. ROBINSON, Defendants - Appellees

Prior History:  [*1] (7:20-cv-00609-TTC-JCH).

Rose v. Officer Adams, 2022 U.S. Dist. LEXIS 47677, 2022 WL 819532 (W.D. Va., Mar. 17, 2022)

Counsel: THOMAS A. ROSE, Plaintiff - Appellant, Pro se, BUCKINGHAM CORRECTIONAL CENTER, Dillwyn, VA.

For OFFICER ADAMS, Correctional Officer at RNCC, Defendant - Appellee: Timothy Edward Davis, OFFICER E PAISELY, K-9 SERGEANT J. ROBINSON, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, VA.





Upon consideration of the motion to voluntarily dismiss this case pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure, the court grants the motion.


End of Document

Edwards v. White

Edwards v. White

United States District Court for the Western District of Virginia, Roanoke Division

September 19, 2022, Decided; September 19, 2022, Filed

Civil Action No. 7:19cv00324



2022 U.S. Dist. LEXIS 168661 *; 2022 WL 4350433

MICHAEL DERRICK EDWARDS, Plaintiff, v. WHITE, et al., Defendants.

Counsel:  [*1] Michael Derrick Edwards, Plaintiff, Pro se, Pound, VA.

For M.D. Dean, Sergeant, Defendant: Joseph Anthony Piasta, LEAD ATTORNEY, Johnson, Ayers & Matthews PLC, Roanoke, VA.

For D. Ball, L.P.N., Defendant: Alexandra Dare Essig, Robyn Page Ayres, LEAD ATTORNEYS, Goodman Allen & Donnelly, PLLC, Glen Allen, VA; Brian Ballard Vieth, LEAD ATTORNEY, Goodman Allen Donnelly PLLC, Glen Allen, VA.

For Lisa Parks, Nurse Clinician B, Defendant: Brian Ballard Vieth, LEAD ATTORNEY, Goodman Allen Donnelly PLLC, Glen Allen, VA; Robyn Page Ayres, LEAD ATTORNEY, Alexandra Dare Essig, Goodman Allen & Donnelly, PLLC, Glen Allen, VA.


Opinion by: THOMAS T. CULLEN





Michael Derrick Edwards, a Virginia inmate proceeding pro se, filed this civil action under 42 U.S.C. § 1983. This matter is set for a jury trial and is currently before the court on Edwards's partial motion for summary judgment against defendants White, J. Murray, Musick, and Blevins (the "defendants"),1 concerning his allegations that his rights were violated when he was placed and kept in five-point restraints following an altercation at River North Correctional Center ("River North"). Having reviewed the record, [*2]  the court will deny Edwards's motion.


Edwards filed this action against several security staff members and medical personnel, related to a November 2018 incident when officers used force against Edwards and later placed him in five-point restraints. The allegations underlying this action have been recounted in numerous court opinions and orders (see, e.g., Mem. Op. pgs. 1-5, Mar. 10, 2020 [ECF No. 136]; Mem. Op. pgs. 1-4, Oct. 30, 2020 [ECF No. 215]) and the court will not fully repeat them here. Instead, the court will briefly summarize the evidence relevant to Edwards's partial motion for summary judgment.

It is undisputed that on November 27, 2018, Edwards was involved in an altercation with staff that resulted in him being bitten by a canine in several places and ultimately placed in five-point restraints for nearly 16 hours. How the incident arose is in dispute. Edwards claims that an officer initiated the altercation by pushing Edwards into a fence, "face first." (Second Am. Compl. at 4 [ECF No. 126].) According to the audio recordings of Edwards's resulting disciplinary charge hearings, the altercation commenced when Edwards was "verbally abusive," "aggressive," failed to comply [*3]  with orders, and "struck" an officer "multiple times with a closed fist to the face." (Disciplinary Audio Recording RNCC-2018-1399 & 1405 [ECF No. 300].) Edwards claims that he only "punched" one officer in the face in order to "defend" himself. (Second Am. Compl. at 4.) The disciplinary hearing audio recordings reflect, however, that Edwards struck and kicked multiple officers and canines. (Disciplinary Audio Recordings RNCC-2018-1399-1405 [ECF No. 300].)

In any event, there is no dispute that, during the incident, officers deployed a canine to subdue Edwards, and Edwards suffered wounds to his back. Edwards claims, though, that the wounds were "open wounds" (2d Am. Compl. at 5), while medical staff counters that the two wounds on his back were "superficial lacerations—not open/gaping wounds" (see, e.g., Decl. of Teresa Payne, R.N. ¶ 39, June 4, 2021 [ECF No. 253-3]). The defendants assert that Edwards "was restrained after [he] failed to submit to officer commands and after he had punched officer(s)," and that they did not use "any force greater than what was necessary, excused, or justified" to restrain Edwards. (Answer ¶ 20 [ECF No. 162].)

There is no dispute that after the altercation, [*4]  Edwards received medical treatment; indeed, video footage submitted by the defendants shows that Edwards was transported to the medical department by at least 14 officers. (Video RNCC_112718_1408577_7 [ECF No. 209].) Disciplinary hearing audio recordings reflect that Edwards assaulted an officer by kicking him in the knee during this transport. (Disciplinary Audio Recordings RNCC-2018-1406 [ECF No. 300].) Edwards states that while in the medical department, he "never resisted or needed to be restrained at any point." (Second Am. Compl. at 5.) The video evidence shows that while Edwards was in the medical department, he was always surrounded by between four and seven officers. (See Videos RNCC_112718_1408577_1 & RNCC_112718_1408577_6 [ECF No. 209].) After receiving medical treatment, Edwards was placed in five-point restraints at approximately 5:20 p.m. (Video 11-27-18 CAMERA 59 MED ISO 2 [ECF No. 209].) Edwards asserts that Capt. Blevins made the decision to place him in five-point restraints. (Second Am. Compl. at 5.)

After the restraints were secured, Nurse Parks inspected the restraints and determined that there were "no contraindications for the restraints and [that] no restraints [*5]  were placed over any of [Edwards's] wounds." (Decl. of Lisa Parks, RN ¶ 11, Jul. 16, 2020 [ECF No. 187-1].) Edwards claims that, approximately 20 minutes after his placement in the restraints, Assistant Warden White and Capt. Blevins entered the cell where Edwards was restrained to ask him about what had happened. Edwards argues that Assistant Warden White failed to order his release from the five-point restraints even though the "immediacy of the disturbance was at an end" and Edwards did not "exhibit[] any threatening behavior to the safety and security of himself, the nurses, or the officers" immediately before his placement in the restraints. (Second Am. Compl. at 6.) The court notes that video evidence shows that from the time of the initial altercation to the time he was placed in five-point restraints, Edwards had between 4 and 14 officers surrounding him.

Edwards asserts that around 6:20 p.m., approximately one hour after his placement in the restraints, Officers Musick and J. Murray came to Edwards's cell and asked if he wanted a restraint break. Edwards states that although he said he wanted a break, the officers "turned to the camcorder and stated that [Edwards] refused" [*6]  the break.2

Video evidence shows that at 8:34 p.m., an officer offered Edwards a restraint break. (Video RNCC_112718_1408577_2 [ECF No. 209].) Although Edwards cannot be seen in the video, the officer indicates that Edwards refused the break. (Id.)

At 9:00 p.m., a nurse "performed a shift assessment and restraint assessment on" Edwards and noted that he "refused to be released from the five-point restraints at that time." (Parks Decl. ¶ 15.)

Video evidence also shows that at 10:34 p.m., officers entered Edwards's cell because he had "wiggled out" of his chest strap. (Video RNCC_112718_1408577_3 [ECF No. 209].) The officers re-adjusted the strap and a nurse re-checked the restraints for proper application. (Id.) Also during this encounter, Edwards asked to use the bathroom, but his request was denied. (Id.)

At 1:00 a.m. on November 28, a nurse performed a "neurology check" and documented that Edwards was able to "move all extremities and there were no complaints of pain or distress." (Parks Decl. ¶ 16.)

Video evidence shows that at 3:10 a.m. on November 28, Edwards was offered another restraint break, and this time he accepted the offer. (Video RNCC_112718_1408577_4 [ECF No. 209].) During [*7]  the restraint break, he also used the bathroom. At 3:20 AM, a nurse performed a "restraint assessment and neurology check" and documented that Edwards was "able to move all extremities." (Parks Decl. at ¶ 17.) The nurse noted that the five-point restraints were "released" for "range of motion purposes" and then "appropriately" reapplied. (Id.)

Finally, video evidence shows that at 9:00 a.m., just under 16 hours from the initial application, Edwards was released from the five-point restraints for "preparation for transfer to Red Onion [State Prison]." (Video RNCC_112718_1408577_5 [ECF No. 209].)

In support of his partial motion for summary judgment against defendants White, J. Murray, Musick, and Blevins, Edwards argues that the defendants subjected him to cruel and unusual punishment by placing him five-point restraints while he had "open wounds" on his back and keeping him there even though he was not a threat to himself or anyone else. Edwards also contends that the officers only gave him one break. Finally, Edwards argues that although two of the defendants were present for 12 hours of his confinement in the restraints, he was given "no process."


Federal Rule of Civil Procedure 56(a) provides that a court should grant [*8]  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, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Summary judgment is inappropriate "if the dispute about a material fact is 'genuine,' that is, if the evidence is 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). But if the evidence of a genuine issue of material fact "is merely colorable or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted). In considering a motion for summary judgment under Rule 56, a court must view the record as a whole and draw all reasonable inferences in the light most favorable to the nonmoving party. See id. at 255; Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). 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 relied on 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) ("The summary judgment inquiry thus [*9]  scrutinizes the plaintiff's case to determine whether the plaintiff has proffered sufficient proof, in the form of admissible evidence, that could carry the burden of proof of his claim at trial."); Sakaria v. Trans World Airlines, 8 F.3d 164, 171 (4th Cir. 1993) (finding that the district court properly did not consider inadmissible hearsay in an affidavit filed with motion for summary judgment).


Edwards argues that he is entitled to summary judgment against the defendants concerning his claims that his placement and continued confinements in five-point restraints violated the Eighth Amendment. The court concludes that genuine disputes of material facts preclude summary judgment and Edwards has not shown that he is entitled to judgment as a matter of law.

The Eighth Amendment prohibits prison officials from inflicting unnecessary and wanton pain and suffering on prisoners. Whitley v. Albers, 475 U.S. 312, 320-21, 106 S. Ct. 1078, 89 L. Ed. 2d 251 (1986). To determine whether a prisoner has stated a cognizable excessive force claim, the "core judicial inquiry" is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 7, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992). Whether force was necessary or intentionally aimed at inflicting unnecessary physical harm depends on factors such as the need for the application of force, the [*10]  relationship between the need and the amount of force used, the extent of injury inflicted, the extent of the threat to the safety of staff and inmates reasonably perceived by responsible officials, and any efforts made to temper the severity of a forceful response. Whitley, 475 U.S. at 321; see, e.g., Wilkins v. Gaddy, 559 U.S. 34, 37-39, 130 S. Ct. 1175, 175 L. Ed. 2d 995 (2010).

To establish cruel and unusual living conditions, a prisoner must prove 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." Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993) (emphasis in original) (cleaned up). Only extreme deprivations are sufficient to satisfy the objective component of an Eighth Amendment claim regarding conditions of confinement. See Hudson v. McMillian, 503 U.S. 1, 8-9, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992). A prisoner 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. See Helling v. McKinney, 509 U.S. 25, 31, 113 S. Ct. 2475, 125 L. Ed. 2d 22 (1993); Strickler, 989 F.2d at 1381.

The subjective component of a challenge to conditions of confinement is satisfied by a showing of deliberate indifference by prison officials. See, e.g., Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). "Deliberate indifference entails something more than mere negligence . . . [but] is satisfied by something [*11]  less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." Id. at 835. Instead, it requires that a prison official actually know of and disregard an objectively serious condition, medical need, or risk of harm. See id. at 837; Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995).

The use of five-point restraints in a good-faith effort to control an inmate is not per se unconstitutional. See Williams v. Benjamin, 77 F.3d 756, 763 (4th Cir. 1996); Sadler v. Young, 325 F. Supp. 2d 689, 702 (W.D. Va. 2004), rev'd on other grounds, 118 F. App'x 762 (4th Cir. 2005). But courts have found that continued restraint of this type, without legitimate purpose, can give rise to a constitutional violation. See Williams, 77 F.3d at 763; Sadler, 325 F. Supp. 2d at 702. "[When] the immediacy of the disturbance [i]s at an end . . . the unnecessary infliction of continued pain throughout a prolonged time period clearly supports an inference that the guards were acting to punish, rather than to quell the disturbance." Williams, 77 F.3d at 765 (citing United States v. Cobb, 905 F.2d 784, 789 (4th Cir. 1990) ("[P]unitive intent behind a defendant's use of force may be inferred when the force is not reasonably related to a legitimate nonpunitive governmental objective.") (cleaned up)). As such, continued use of five-point restraints on an inmate who does not currently pose any threat to security or discipline can violate the Eighth Amendment, even when that inmate does not suffer significant physical injuries. See Sadler, 325 F. Supp. 2d at 704; [*12]  Davis v. Lester, 156 F. Supp. 2d 588, 594 (W.D. Va. 2001).

Here, Edwards asserts that he was not a threat at the time he was placed in five-point restraints or at any other point during his 16-hour confinement, that he should not have been placed in five-point restraints with "open wounds" on his back, and that he was denied all but one break from the restraints. Based on the audio and video recordings in the record, however, a reasonable jury could conclude that Edwards displayed dangerous and disruptive behavior during the altercation and during his transport to the medical department. During the times when Edwards appeared calm and quiet on the video recordings, he was in restraints and surrounded by several security staff. A reasonable jury could also conclude that his attempt to "wiggle[] out" of his restraints during his confinement demonstrated that his continued confinement was justified.

As to his back wounds, medical staff attests that the wounds were "superficial lacerations" and "not open/gaping wounds." Nurses checked Edwards's five-point restraints immediately after they were applied and multiple times throughout the night and confirmed that they were properly applied, that there were "no contraindications for the restraints," [*13]  and that the restraints were not placed over any of his wounds. Based on this evidence, a reasonable jury could conclude that the restraints were not improperly applied because of his back wounds.

Finally, affidavits and video evidence submitted by the defendants reflect that Edwards was offered at least two breaks that he refused to take and that he took at least one break during his 16 hours in the restraints overnight. Although Edwards asserts that the defendants lied about offering him breaks, that critical fact is in dispute, and a reasonable jury could conclude that the defendants did not act with deliberate indifference.

Having reviewed the record as a whole and drawing all reasonable inferences in the light most favorable to the defendants, the court concludes that there are genuine issues of material facts, and that Edwards has not shown that he is entitled to judgment as a matter of law.


Edwards also argues that two of the defendants denied him due process during his confinement in five-point restraints. Specifically, he argues that although two of the defendants were there for 12 hours of his confinement in the restraints, he was given "no process." The court concludes that [*14]  material disputes of genuine facts preclude summary judgment and Edwards has not shown that he is entitled to judgment as a matter of law.

The Due Process Clause of the Fourteenth Amendment requires states to provide procedural rules to protect persons against mistaken deprivations of life, liberty, or property. Carey v. Piphus, 435 U.S. 247, 259, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978). Liberty interests can arise from two sources: the Due Process Clause itself and state law. Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995). The Due Process Clause may create a liberty interest when the restraint imposed upon an inmate exceeds his sentence in an "unexpected manner." Id. State prison rules may also create liberty interests that are protected by the Due Process Clause when they "impose[] [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484-86 (holding that prisoner has no state-created liberty interest in being free from segregated confinement because it does not constitute an atypical, significant deprivation).

In Williams, the court acknowledged that an inmate's transfer from administrative segregation to "total immobilization in [four-point] restraints surely 'work[ed] a major disruption in his environment.'" 77 F.3d at 759, 769-70 (quoting Sandin, 515 U.S. at 486). While the court rejected the plaintiff's due process argument for other reasons, it held that an inmate has some "liberty interest" in not [*15]  being confined in immobilizing restraints:

Simply because the initial application of the restraints occurred soon after a disturbance does not mean that four-point restraints may be imposed indefinitely. At some point in time, an inmate so restrained would be entitled to some procedural protection to ensure that his liberty interest was not being arbitrarily and capriciously denied. In this appeal, we decline to resolve where that point exists.

77 F.3d at 770 n.10. Although the Fourth Circuit has held that inmates have a "liberty interest" in not being "arbitrarily and capriciously" confined in immobilizing restraints, it has yet to determine precisely when the process to protect that liberty interest is due. Sadler v. Young, 325 F. Supp. 2d 689, 705 (W.D. Va. 2004); see also Card v. D.C. Dept. of Corrections, No. 2:00CV631, 2005 U.S. Dist. LEXIS 48697, 2005 WL 2260167, at *8 (E.D. Va. Sept. 13, 2005) (noting that, "[a]t some point in time," an inmate in five-point restraints "would be entitled to some procedural protections to ensure that his liberty interest was not being arbitrarily and capriciously denied").

There is no dispute that Edwards was placed in five-point restraints as a consequence of the alleged violent altercation with staff. At a minimum, Edwards admits that he struck at least one officer. Based on the video and audio [*16]  evidence in the record, the court finds that a reasonable jury could conclude that Edwards's initial placement in five-point restraints was justified. Williams, 77 F.3d 756, 769-70 (4th Cir. 1996) (citing Lunsford v. Bennett, 17 F.3d 1574, 1583 (7th Cir. 1994) ("Pre[-]deprivation protections [cannot] reasonably be applied to a prison disturbance situation where institutional security is threatened."); Albers v. Whitley, 546 F. Supp. 726, 732 n.1 (D. Ore. 1982)).

Whether Edwards was entitled to some process and what that process might have looked like over the next 16 hours is not clear. Edwards does not specify what sort of procedural protections were required. His confinement in restraints lasted through the night (from 5:20 p.m. to 9:00 a.m.). The video evidence shows that at 10:34 p.m., approximately five hours into his confinement, Edwards attempted to wiggle out of the restraints. The court finds that a reasonable jury could conclude that no hearing was possible during that period because the period ended as soon as officers determined that Edwards's behavior was sufficiently compliant for him to be released. Further, Edwards has not alleged that his post-deprivation state remedies were inadequate. See Williams, 77 F.3d at 769-70 (recognizing that when prison security emergency precludes pre-deprivation process, post-deprivation procedural protections are adequate). [*17] 

Having reviewed the record as a whole and drawing all reasonable inferences in the light most favorable to the defendants, the court concludes that there are genuine issues of material facts and that Edwards has not shown that he is entitled to judgment as a matter of law, precluding summary judgment on his due process claim.


For the reasons stated, the court will deny Edwards's motion for summary judgment. This matter will proceed to trial as scheduled.

The Clerk is directed to send copies of this Memorandum Opinion and the accompanying Order to the parties.

ENTERED this 19th day of September, 2022.

/s/ Thomas T. Cullen




For the reasons stated in the court's Memorandum Opinion, it is ORDERED that Plaintiff Michael Derrick Edwards's motion for summary judgment (ECF No. 279) is DENIED. This case will proceed to trial as previously scheduled.

The Clerk is directed to send copies of this Order and the accompanying Memorandum Opinion to the parties.

ENTERED this 19th day of September, 2022.

/s/ Thomas T. Cullen




End of Document


Edwards names other defendants in this action but only moves for summary judgment against these four. Throughout this opinion, the court uses the term "defendants" only in reference to those defendants against whom Edwards seeks summary judgment.

The court notes that there is no video evidence in the record associated with this alleged 6:20 p.m. interaction.

Barbee v. Anderson

Barbee v. Anderson

United States Court of Appeals for the Fourth Circuit

October 14, 2021, Submitted; November 8, 2021, Decided

No. 20-6437



2021 U.S. App. LEXIS 33127 *; 2021 WL 5176464

MARCUS BARBEE, Plaintiff - Appellant, v. MAJOR ANDERSON, Correctional Officer; M. D. NAPIER, Correctional Officer; J. L. THOMPSON, Correctional Officer; JOSEPH ELY, Unit Manager; B. K. MCCRAY, Correctional Officer; W. C. COLLINS, Correctional Officer; T. L. SPEARS, Correctional Officer; M. E. ROBINSON, Correctional Officer; FRANKS, H/O; LT. J. G. BRYANT; B. MULLINS, M.D.; C. MORGAN, LPN; WARDEN MANIS, Defendants - Appellees, and SGT. JOHN DOE; JANE DOE, Nurse (2), Defendants.


Prior History:  [*1] Appeal from the United States District Court for the Western District of Virginia, at Roanoke. (7:19-cv-00306-EKD-JCH). Elizabeth Kay Dillon, District Judge.

Barbee v. Anderson, 2020 U.S. Dist. LEXIS 43133, 2020 WL 1189938 (W.D. Va., Mar. 12, 2020)

Disposition: AFFIRMED.

Counsel: Marcus Barbee, Appellant, Pro se.

Nathan Henry Schnetzler, FRITH, ANDERSON & PEAKE, PC, Roanoke, Virginia, for Appellees.

Judges: Before NIEMEYER and HARRIS, Circuit Judges, and TRAXLER, Senior Circuit Judge.





Marcus Barbee appeals the district court's order denying relief on his 42 U.S.C. § 1983 complaint. Limiting our review of the record to the issues raised in Barbee's informal brief, see 4th Cir. R. 34(b), we find no reversible error. Accordingly, we affirm the district court's order. Barbee v. Anderson, No. 7:19-cv-00306-EKD-JCH, 2020 U.S. Dist. LEXIS 43133 (W.D. Va. Mar. 12, 2020). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.



End of Document

Silva-Prentice v. Turco