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Detainee claims officials retaliated against him

Where the parties disputed whether prison officials retaliated against a detainee after he filed grievances and lawsuits, the officials’ motion for summary judgment on these claims was denied.


Gary Wall, a Virginia detainee proceeding pro se, filed this civil rights action under 42 U.S.C. § 1983, alleging various violations of his constitutional rights. Twenty-four defendants employed by or associated with the Virginia Department of Corrections, or VDOC, have filed a motion for summary judgment.


Wall next claims that 11 of the VDOC defendants retaliated against him for exercising his First Amendment right to file grievances and lawsuits. The court finds that, for several of the defendants and claims, there are disputed issues of material fact. However, the court finds that the alleged loss of shower and recreation privileges is not sufficiently adverse to support a claim of retaliation.

Wall’s remaining claims of retaliation are related to his security level and to his continued confinement in segregation. The court finds that his claims against two defendants survive summary judgment because a reasonable jury could find that their adverse decisions were motivated by an impermissible desire to retaliate against Wall for engaging in protected conduct and that these defendants would not have made the same decisions in the absence of Wall’s protected activity.

The court concludes however that summary judgment is appropriate with respect to the claims against five defendants. Although Wall alleges that two defendants warned him against appealing institutional classification authority decisions, Wall does not cite to any evidence indicating that either of these defendants took any adverse action against him after offering those warnings. With respect to the remaining five defendants, Wall has not presented evidence from which a reasonable jury could find that their adverse recommendations were causally connected to Wall’s protected activity.

Cruel and unusual punishment

Wall next asserts claims of excessive force and failure to intervene in violation of the Eighth Amendment. After reviewing the parties’ sworn statements and the available video footage, find that genuine issues of material fact exist as to whether Dickenson, Mullins and/or Begley used “more than de minimis force” in removing Wall’s handcuffs, and as to whether force “was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.”

On the other hand, to the extent Wall seeks to hold Collins and Gilbert liable for the use of excessive force based on a theory of bystander liability, summary judgment is appropriate. Even if both Collins and Gilbert were among the group of officers standing nearby when the use of force occurred, no reasonable jury could find from the evidence presented that these officers had a reasonable opportunity to intervene.

Segregation-related claims

Wall claims that he was held in segregation without receiving due process in violation of the 14th Amendment and that his conditions of confinement violated his Eighth Amendment right to be free from cruel and unusual punishment. The VDOC defendants maintain the same claims are being litigated in Thorpe v. Virginia Department of Corrections, No. 2:20-cv-00007 (W.D. Va.), a putative class action in which Wall is one of the named plaintiffs. I conclude that the due process claim against Jeffrey Kiser is subject to dismissal as duplicative, as are the Eighth Amendment claims against Kiser, Clarke and Elam. All three correctional officials are named as defendants in Thorpe, and the claims against them in Thorpe mirror those asserted in this case.

At this stage of the proceedings, the same result cannot be reached with respect to Wall’s segregation-related Eighth and 14th Amendment claims against other VDOC defendants named in the second amended complaint. The other VDOC defendants are not named as defendants in Thorpe. Nor is there any suggestion that they are in privity with the Thorpe defendants.

The arguments advanced by the VDOC defendants nonetheless appear to weigh in favor of severing those claims into a separate action, potentially staying further proceedings on those particular claims pending the outcome of Thorpe and proceeding with a jury trial on the other remaining claims. The parties should submit briefs on these issues within 30 days.

Virginia claims

Wall asserts supplemental state law claims of assault and battery against Dickenson, Mullins and Begley, based on the alleged use of excessive force on June 8, 2018. These VDOC defendants argue that the claims fail because the named officers “did not pull [Wall’s] arms through the tray slot.” Because a genuine issue of material fact exists with respect to this issue, the motion for summary judgment will be denied as to the claims of assault and battery.

Defendants’ motion for summary judgement granted in part, denied in part.

Wall v. Clarke, Case No. 7:19-cv-00260, March 29, 2023. WDVA at Roanoke (Jones). VLW 023-3-156. 41 pp.

VLW 023-3-156

Virginia Lawyers Weekly