Pronin v. Johnson et al

Filing 209

ORDER denying 173 Motion for Summary Judgment; finding as moot 202 Motion to Stay; finding as moot 203 Motion for Issuance of Subpoena Signed by Honorable David C Norton on June 23, 2017.(rweh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
DMITRY PRONIN,
Plaintiff,
vs.
LT. TROY JOHNSON, and JAKE
BURKETT,
Defendants.

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No. 5:12-cv-03416-DCN

ORDER

This matter is before the court on defendants Lt. Troy Johnson (“Johnson”) and
Jake Burkett’s (“Burkett,” together with Johnson, “defendants”) motion for summary
judgment. For the reasons set forth below, the court denies defendants’ motion for
summary judgment.
I. BACKGROUND
Plaintiff Dmitry Pronin (“Pronin”) filed the instant action on December 3, 2012,
alleging that he suffered numerous civil rights violations during his incarceration at the
Federal Corrections Institution in Edgefield, South Carolina (“FCI Edgefield”). The most
significant of these allegations is Pronin’s claim that he was denied his right of access to
the courts. Pronin contends that on November 5, 2012, while he was housed in the
Special Housing Unit (“SHU”) of FCI Edgefield, he received a package from his former
attorney, Galina Rakityanskaya (“Rakityanskaya”), which contained—among other
things—certain medical documentation which he used to draft a habeas petition that was
to be filed in the District of Delaware (the “Draft Delaware Petition”). Pronin contends
that the Draft Delaware Petition and all related attachments were placed in an envelope
by Saturday, November 10, 2012. However, on Sunday, November 11, 2012, before the
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envelope could be mailed, Pronin was involved in an incident with his then cellmate and
removed from his cell. Crucially, Pronin contends that his legal papers—including the
Draft Delaware Petition and its attachments—were left in the cell with his cellmate.
Pronin further contends that Burkett, who was eventually tasked with retrieving these
documents from the cell, intentionally left a portion of Pronin’s documents in the cell,
where they were destroyed, and that Johnson subsequently threw out another portion of
Pronin’s documents two days later. While Pronin was eventually able to file another
habeas petition in the District of Delaware (the “Filed Delaware Petition”), he argues he
was unable to recover certain of the medical documents he received from Rakityanskaya
as a result of the defendants’ actions. Specifically, Pronin claims to have lost medical
certificates from Policlinic #3 of the City of Irkutsk, Russia, which contained evidence of
his mental illness. Notably, Pronin’s filing in the District of Delaware did contain
medical certificates from Policlinic #2, which were also sent by Rakityanskaya in the
same package that allegedly contained the Policlinic #3 documents.
The court granted defendants’ prior motion for summary judgment as to all of
Pronin’s claims on March 31, 2015. ECF No. 152. Pronin appealed the court’s decision.
The Court of Appeals affirmed the court’s grant of summary judgment on most of
Pronin’s claims, but found that the court erred in its analysis of Pronin’s access-to-courts
claim by relying on defendants’ declarations that they did not destroy Pronin’s
documents, and Burkett’s declaration that he did not intend to destroy such documents,
when those declarations were contested. ECF No. 162 at 6. The Court of Appeals went
on to find that Pronin had raised a material question of fact as to whether he was injured
by defendants’ actions. The Court of Appeals recognized that Pronin’s Filed Delaware

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Petition raised a claim for ineffective assistance of counsel based on his attorney’s refusal
to pursue a “neuropsychiatric” evaluation in connection with his sentencing, and found
that “evidence of serious mental illness . . . would have supported Pronin’s case at
sentencing.” Id. at 7. Thus, the Court of Appeals concluded,
the [d]efendants’ alleged destruction of [Pronin’s] legal materials prevents
him from providing the court with his medical history showing that these
illnesses had been diagnosed prior to his criminal activity. This evidence
could be helpful in showing that his attorney should have investigated his
mental health. Without expressing an opinion as to Pronin’s likelihood of
success in his § 2255 proceeding, we find that Pronin has raised a material
question of fact as to whether he can show a nonfrivolous and arguable
question regarding whether such materials would result in a successful
§ 2255 motion.
Id. at 8.1 Therefore, the Court of Appeals vacated the court’s grant of summary judgment
on Pronin’s access to courts claim and remanded the case for further proceedings. Id. at
13.
On November 11, 2016, defendants again moved for summary judgment, arguing
that Pronin’s sworn statements fail to raise a material question of fact because they are

Defendants state that the question of whether their actions “prevented [Pronin]
from pursuing a ‘nonfrivolous’ and ‘arguable’ claim in his pending § 2255 motion”—i.e.,
that he was actually injured by defendants’ alleged actions, see Lewis v. Casey, 518 U.S.
343, 353 (1996)—is still before this court. If defendants simply mean that Pronin must
show that they actually destroyed his medical records, they are correct, but to the extent
defendants are suggesting that the court must still evaluate whether the destruction of
Pronin’s medical records prevented him from pursuing a nonfrivolous claim, they are
incorrect. The Court of Appeals has already found that—assuming defendants destroyed
evidence of Pronin’s medical history—Pronin has raised a material question of fact as to
whether it was “nonfrivolous” or “arguable” that these materials would have resulted in a
successful § 2255 petition in the District of Delaware. ECF No. 173 at 8. Thus, the
question of whether defendants’ alleged actions cost Pronin “the opportunity to pursue a
‘nonfrivolous’ or ‘arguable’ claim” has been resolved in Pronin’s favor for summary
judgment purposes. The only question that remains is whether defendants actually took
such actions.
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barred by the sham affidavit rule.2 ECF No. 173. Pronin filed a response on February
15, 2017, ECF No. 192, and defendants filed a reply on March 3, 2017. ECF No. 199.
Pronin then filed a sur-reply, ECF No. 201, along with a motion to stay all proceedings
with respect to defendants’ motion for summary judgment, ECF No. 202, and a motion
for the issuance of a subpoena, ECF No. 203, on March 20, 2017. Defendants responded
to the motion to stay on March 31, 2017, ECF No. 204, and the motion for issuance of a
subpoena on April 3, 2017. ECF No. 205. The matters are now ripe for the court’s
review.
II. STANDARD
Summary judgment is proper “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.”
Fed. R. Civ. P. 56(a). “Only 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 (1986). “[S]ummary judgment will
not lie 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. At the summary
judgment stage, the court must view the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in his favor. Id. at 255.

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Defendants also argue that they are entitled to qualified immunity, but they only
argue they are entitled to qualified immunity because Pronin’s constitutional rights were
not violated. ECF No. 173 at 11–14. Thus, defendants’ qualified immunity argument
merges with their sham affidavit argument and their argument that Pronin has failed to
“identify an actual injury resulting from an alleged denial of access to the courts”—the
latter of which the court need not address for the reasons discussed in footnote 1.
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III. DISCUSSION
Defendants argue that Pronin has failed to raise a genuine issue of fact as to
whether they actually destroyed or intentionally failed to retrieve any of Pronin’s legal
documents. Pronin has provided sworn statements on this issue, but defendants contend
that these statements are barred by the “sham affidavit rule.”
It is well-established that “a party cannot create a genuine issue of fact sufficient
to survive summary judgment simply by contradicting his or her own previous sworn
statement (by, say, filing a later affidavit that flatly contradicts that party’s earlier sworn
deposition) without explaining the contradiction or attempting to resolve the disparity.”
Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999); see also Barwick v.
Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984) (“A genuine issue of material fact is not
created where the only issue of fact is to determine which of the two conflicting versions
of the plaintiff’s testimony is correct.”). This principle is frequently referred to as the
“sham affidavit rule.”3 “For the sham affidavit rule to apply ‘there must be a bona fide
inconsistency’” between the affiant’s sworn averments or testimony. Kinser v. United
Methodist Agency for the Retarded--W. N. Carolina, Inc., 613 F. App’x 209, 210 (4th
Cir. 2015) (alterations omitted) (quoting Spriggs v. Diamond Auto Glass, 242 F.3d 179,
186 (4th Cir. 2001)). Courts are careful to limit “[a]pplication of the sham affidavit rule
at the summary judgment stage . . . to situations involving flat contradictions of material
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The court notes that this case involves a somewhat awkward application of the
sham affidavit rule. In an ordinary case, the sham affidavit rule would be used to prevent
a plaintiff from getting around a defendant’s summary judgment argument by simply
filling in gaps in the record or raising issues of fact with sworn averments. Here,
defendants have identified a variety of perceived inconsistencies contained in several
different sources and used these inconsistencies as the entire basis of their motion. The
court finds it unnecessary to determine whether the sham affidavit rule can even be
applied in this context because it finds that the prerequisites for applying the rule have
not been satisfied.
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fact.” Sky Angel U.S., LLC v. Discovery Commc'ns, LLC, 28 F. Supp. 3d 465, 484 (D.
Md. 2014) (quoting Elat v. Ngoubene, 993 F. Supp. 2d 497, 528 (D. Md. Jan. 21, 2014)).
Defendants have not listed out Pronin’s supposed contradictions in any organized
or precise manner. Nevertheless, defendants appear to argue that Pronin has contradicted
himself in the following ways:
(1) By previously stating, in an affidavit attached to his December 27,
2012 habeas petition filed in the District of South Carolina (the “South
Carolina Petition”), that when Burkett returned with a portion of the
documents left in Pronin’s cell “the § 2255 Motion was still there,” Case
No. 5:12-cv-3623-DCN, ECF No. 1-1 ¶ 17, but later claiming that he is
missing the Policlinic #3 certificates;
(2) By previously stating, in the same affidavit discussed above, that
when he received a package of documents from Rakityanskaya, “there was
(sic) medical documents in the package. Those were the medical
documents from Russian Federation Policlinic #2 . . . [,]” Case No. 5:12cv-3623-DCN, ECF No. 1-1 ¶ 4, but later claiming that he also received
documents from Policlinic #3;
(3) By previously stating, in the same affidavit discussed above, that he
saw Johnson take his documents towards the trash can and when Johnson
came back into view, he was no longer holding the documents, Case No.
5:12-cv-3623-DCN, ECF No. 1-1 ¶ 31, but later claiming in his deposition
that he actually saw Johnson throw the documents away; and
(4) By previously stating that his documents were being held by SHU
staff as of November 19, 2012, ECF No. 1-1 ¶ 29, but now claiming that
Johnson threw away his documents on November 13, 2012.
ECF No. 173 at 6–10. Having reviewed each of the statements in question, the court is
convinced that none rise to the level of “flat contradiction of material fact” required to
invoke the sham affidavit rule. The court addresses each statement in turn.
A.

“[T]he § 2255 Motion was still there . . . .”

Pronin claims that following the incident with his cellmate on November 11, 2012
he was transferred to a new cell, at which point Burkett brought him a portion of his legal

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papers from his former cell.4 ECF No. 192-7, Pronin Dec. ¶ 8. In his deposition, Pronin
stated that the envelope that contained the Draft Delaware Petition and related materials
was not included in those papers. ECF No. 173-1, Pronin Dep. 37:12–17. Defendants
highlight Pronin’s claim in his South Carolina Petition that “[u]pon receiving [his]
property [from Burkett,] [Pronin] started to look through it and found out that some of the
legal documents, i.e. half of the file from Rakityanskaya [] were missing. . . . However,
the § 2255 Motion was still there.” Case No. 5:12-cv-3623-DCN, ECF No. 1-1 ¶ 17
Defendants do not offer any discussion of these statements in their substantive
arguments, but their description of the facts of the case suggests that the statements are
somehow inconsistent. ECF No. 173 at 3. Thus, it is not clear that defendants even view
these statements as “flat contradictions of material fact.” Nevertheless, the court
addresses them for the sake of clarity.
The court first notes that any inconsistency contained in these statements is
wholly immaterial. This case turns on whether defendants intentionally destroyed or
withheld documents which prevented Pronin from pursuing a non-frivolous claim. The
only way in which the two statements would contradict each other would be if Pronin’s
statement that “the § 2255 Motion was still there” were read to indicate that Burkett
actually brought him the envelope containing the Draft Delaware Petition, as he clearly
claimed that Burkett failed to bring him that envelope in his deposition. Even assuming
this was the proper reading, it is simply not a contradiction of material fact. Pronin’s
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Defendants briefly argue that, because Burkett brought Pronin some of his legal
documents, “Burkett’s actions amount to, at most negligence, which is not actionable
under § 1983.” ECF No. 173 at 9. That is quite a leap. This argument does not warrant
much discussion, but suffice it to say, the court finds that it is entirely possible for a
person to intentionally complete only a portion of an assigned task. Thus, the fact that
Burkett retrieved some of Pronin’s paperwork does not undermine Pronin’s claim that
Burkett intentionally left the remainder of his paperwork in his former cell.
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access-to-courts claim does not turn on Burkett’s failure to bring him an envelope; it
turns on Burkett’s failure to bring him documentation that could be used to support the
Filed Delaware Petition—specifically, the Policlinic #3 documents. Moreover, a
thorough reading of the affidavit accompanying Pronin’s South Carolina Petition reveals
that the term “§ 2255 Petition” was not used to include the envelope, or even the related
attachments to the Draft Delaware Petition. It was simply used to refer to the petition
itself. See Case No. 5:12-cv-3623-DCN, ECF No. 1-1 ¶ 8 (explaining that Pronin made
“the package ready to be sent” to the District of Delaware, and that this “package”
“consisted of the Motion under U.S.C. title 28 § 2255 itself, two (2) affidavits . . . and
notarized medical certificates”). Thus, the statements are not even contradictory, much
less “flat contradictions of material fact.”
Defendants also cite another statement Pronin made in his deposition testimony,
in which he claimed that “defendants ‘did not ‘collect none (sic) of the legal paperwork
that was in the cell.’” ECF No. 173 at 3 (quoting Pronin Dep. 38:1–2). The full
statement reads as follows: “[T]hey, totally, collect (sic) none of the legal paperwork[]
that was in the cell, and they also left my food there.” Pronin Dep. 38:1–3. Having read
the transcript of the deposition, it appears Pronin was referring to Burkett as “they,”
although it is not entirely clear. In any event, the court will assume for the sake of
argument that Pronin was referring to Burkett. This makes the statement actually
contradictory, as Pronin acknowledged, both prior to and after making the statement in
question, that Burkett brought him some of his legal paperwork. Case No. 5:12-cv-3623DCN, ECF No. 1-1 ¶ 8; Pronin Dec. ¶ 8. Still, the issue of materiality remains. Any
statements regarding the precise documents that Burkett brought to Pronin following his

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transfer to a new cell are immaterial unless they contradict Pronin’s claim that Burkett
did not bring him the Policlinic #3 documents. Therefore, even if Pronin’s testimony that
“they” did not bring him any of his legal paperwork was contradicted by prior and
subsequent sworn statements, it is still not material because it does not contradict his
claim that Burkett left important legal documents in his cell.
B.

“Those were the medical documents from Russian Federation
Policlinic #2.”

Pronin’s claim is largely dependent on his assertion that the documents provided
by Rakityanskaya included medical certificates from Policlinincs #2 and #3. ECF No.
192 at 2. Defendants argue that this assertion is in direct conflict with another statement
made in the affidavit filed alongside Pronin’s South Carolina Petition, in which he stated
that “there was (sic) medical documents in the package [provided by Rakityanskaya].
Those were the medical documents from Russian Federation Policlinic #2.” Case No.
5:12-cv-3623-DCN, ECF No. 1-1 ¶ 4. Defendants argue that this statement clearly
indicates that the Rakityanskaya file did not include any Policlinic #3 documents. ECF
No. 173 at 8. If Pronin is now making a contrary assertion, the contradiction is clearly
material as the entire access-to-courts claim is dependent on the existence of the
Policlinic #3 documents.
Certainly, Pronin’s statement could be read to assert that the Policlinic #2
documents were the only “medical documents” provided in the Rakityanskaya package.
However, when all of the circumstances are considered, the court is convinced that a
reasonable juror could read the statement differently. It must first be noted that there are
not multiple Policlinics #2 documents. The only Policlinic #2 materials that were
included in the Filed Delaware Petition were the original “Medical Certificate,” and a
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translated copy. ECF No. 173-2, Filed Delaware Petition at 18–21. The certificate
contains a “diagnosis” of “vegetative-vascular dystonia of eutonic type, asthenicneurologic syndrome,” and lists certain prescribed treatments. The original certificate
and the translation are each a single page.5 Id. It strikes the court as unnatural to refer to
the Policlinics #2 medical certificate as multiple “documents.” Perhaps one might
consider the translation and the original certificate to be separate documents, but the court
is convinced that a reasonable fact-finder might find the initial interpretation of Pronin’s
statement problematic after having looked at the Policlinic #2 “documents” in question.
This interpretation becomes even more problematic when one considers other
statements contained elsewhere in the same affidavit. Whether the Policlinics #2
materials constitute one or multiple “documents,” it is clear that they constitute a single
“certificate.” Id. But in the affidavit submitted alongside the South Carolina Petition,
Pronin states that he included multiple “certificates” in the package containing his Draft
Delaware Petition. Case No. 5:12-cv-3623-DCN, ECF No. 1-1 ¶ 8. This is not an
isolated incident. In a separate paragraph, Pronin refers to “the unexpected receipt of
medical certificate concerning asthenic neurologic condition (sic) and other medical
papers.” Id. ¶ 5. As noted above, the Policlinic #2 certificate addressed Pronin’s alleged
“asthenic-neurologic syndrome,” indicating that the Policlinic #2 certificate is the
certificate Pronin was referencing in this statement. But if this is so, then Pronin’s
statement indicates that he received “other medical papers” in addition to the Policlinics
#2 certificate. Id. The court finds these statements significant, as they clearly indicate
that the Policlinics #2 certificate was not the only medical document provided in the
Rakityanskaya package.
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The third page contains only a seal and is otherwise blank.
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All that is clear is that at least one of Pronin’s statements in the affidavit filed
alongside the South Carolina Petition is inaccurate. The statements were all made at the
same time, suggesting that the conflict may have been the result of poor phrasing or some
other cause. Pronin has not specifically explained the sentence “[t]hose were the medical
documents from Russian Federation Policlinic #2,” but because that statement is clearly
inconsistent with other portions of the same affidavit, the court believes that a reasonable
juror could conclude that Pronin did intend to state that the Policlinic #2 certificate was
the only medical document he received from Rakityanskaya. Thus, defendants have
failed to show that Pronin’s subsequent claims that the Rakityanskaya package included a
certificate from Policlinic #3 do not “flatly contradict” his prior sworn statements.
C.

“When T. Johnson came back to my eyesight . . . there was nothing in
his hands anymore.”

In the affidavit filed alongside the South Carolina Petition, Pronin explained that
after some of his documents were retrieved from his old cell they were placed in a tied-up
sheet and left in the SHU lieutenants’ office. Case No. 5:12-cv-3623-DCN, ECF No. 1-1
¶ 29. He further explained that on the morning of November 13, 2012, he saw Johnson
take a tied up sheet from the office. Id. This is entirely consistent with the statements he
has made in this action. Pronin Dep. 53:3–9. In the South Carolina Petition affidavit,
Pronin stated that he then saw Johnson go toward a small hallway where the trashcans
were located. Case No. 5:12-cv-3623-DCN, ECF No. 1-1 ¶ 30. Johnson left Pronin’s
field of vision and “[w]hen [] Johnson came back to [Pronin’s] eyesight, again standing
in front of his office door, there was nothing in his hands anymore.” During his
deposition, Pronin testified that he saw Johnson throw out the bundled sheet. Pronin
Dep. 53:3–25, 55:8–11. Defendants argue that Pronin has contradicted himself on the
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issue of whether he actually saw Johnson throw away a portion of his legal documents.
ECF No. 173 at 9–10.
The court fails to see how this is a contradiction of a material fact. Pronin’s claim
against Johnson does not depend on whether he saw Johnson throw out the paperwork, it
depends on whether Johnson threw out the paperwork. Though Pronin’s statements may
be inconsistent in a number of ways, they are not inconsistent on this point. Thus, the
sham affidavit rule does not apply.
D.

“[M]y legal property [] has been unlawfully held by SHU staff . . . for
more than a week now”

Defendants last highlight a statement from Pronin’s complaint in the instant
action, where he stated that:
[A]s of today, Monday November 19, 2012, I did not see no (sic) copies,
filled financial certificate forms, nor legal-sized envelopes . . . , nor
remedies forms, nor tort claim, nor the remains of my legal property that
has been unlawfully held by SHU staff and lieutenant Johnson for more
than a week now . . .
ECF No. 1-1, Compl. ¶ 29. Defendants argue that if the SHU staff was holding “the
remains of [Pronin’s] legal property” on November 19, 2012, then Johnson could not
have possibly thrown out the legal paperwork retrieved from Pronin’s cell on November
13, 2012. ECF No. 173 at 10. This argument is obviously dependent on the assumption
that the only “legal property” Pronin owned at the time was the paperwork contained in
his cell on November 10, 2012. However, Pronin explains in his response that the legal
paperwork he had in his cell was not the “sum total” of his legal paperwork. ECF No.
192 at 5. He also had paperwork that was held in the SHU property room. Id.
According to Pronin, this is the “legal property” that was being “unlawfully held” as of
November 19, 2012. Id. This appears to be consistent with Pronin’s prior statements, as
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the defendants have not pointed to any prior statements indicating that the papers in
Pronin’s cell were his only “legal property.” A court may not apply the sham affidavit
rule where a party explains the contradiction between the two statements. June v.
Thomasson, 2016 WL 7374432, at *5 (D. Md. Dec. 20, 2016) (“After thoroughly
reviewing case law, the Court concludes that in the Fourth Circuit, the rule remains that
an affidavit is not sham if the party presenting it ‘explain[s] the contradiction or
attempt[s] to resolve the disparity.’” (quoting Cleveland, 526 U.S. at 806)). Pronin has
done so here. Therefore, the court finds that the sham affidavit rule does not apply.
IV. CONCLUSION
For the foregoing reasons, the court DENIES defendants’ motion for summary
judgment. The court further finds that Pronin’s motion to stay and motion for issuance of
a subpoena are MOOT.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
June 23, 2017
Charleston, South Carolina

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