Johnson, Jr. v. Riddick
Filing
32
MEMORANDUM OPINION. Signed by District Judge Leonie M. Brinkema on 1/8/15. (gwalk, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
Otis P. Johnson, Jr.,
Plaintiff,
I:14cvl48 (LMB/TCB)
V.
Jonathan Durrell Riddick,
Defendant.
MEMORANDUM OPINION
Otis P. Johnson, Jr., a Virginia inmate proceeding pro se, filed this civil rights action
pursuant to 42 U.S.C. ยง 1983, alleging that he was the victim of excessive force during his
former incarcerationat Sussex II State Prison ("Sussex 11").' The matter is now before the Court
on a Motion for Summary Judgment filed by the sole named defendant, Jonathan Durrell
Riddick. Dkt. 23. Defendant has submitted a supporting Memorandum of Law with exhibits,
and has provided plaintiff with the notice required by Local Rule 7(k) and Roseboro v. Garrison.
528 F.2d 309 (4th Cir. 1975). Dkt. 24-25. After receiving an extension of time within which to
do so, plaintiff filed a Response to Motion for Summary Judgment on October 6, 2014. Dkt. 30.
Accordingly, this matter is now ripe for disposition. For the reasons which follow, defendant's
Motion for Summary Judgment will be granted, and summary judgment will be entered in his
favor.
I. Background
Briefly, plaintiff alleged that on February 5, 2013, he was locked in a strip cell at Sussex
II and was "on [his] knees, sick, trying to see a nurse to get some medical attention." Compl. at
5. Around lunchtime, he pressed the intercom button for emergencymedical assistance because
'Plaintiff is now confined at Wallens Ridge State Prison.
he was throwing up and could not hold down food. Officer Riddick came to plaintiff s cell
distributing lunch, and plaintiff passed the officer a cup to get somejuice. Plaintiff told the
officer that he was sick and wasn't going to be eating his lunch and said that he needed to see the
nurse, and the officer asked if he would be drinking the juice. Plaintiff responded "no" and the
officer took the juice out of plaintiffs hand and placed it on top of a trash can, and when he came
back to plaintiffs cell he allegedly "snatch[ed] the T-shirt out of [plaintiffs] hand and threw it
on the floor, then started stomping [plaintiffs] arm repeatedly as hard as he could." Id. Plaintiff
pulled his arm into the cell and defendant kicked the tray slot shut. Plaintiff attempted to get
some help but received no response until the next shift came on duty. As a result of this incident
plaintiffs arm is permanently scarred and he suffers recurring sharp pain. Id. He alleged
expressly that "[t]his was done maliciously and sadistically to cause harm to me. No force can be
justified ...." Id. As relief, plaintiff seeks monetary damages and a transfer to a Level III facility.
Compl. at 6.
By an Order dated February 26,2014, plaintiff was directedto sign and return an affidavit
concerning his exhaustion of the administrative grievance process. Dkt. 2. On the Verified
Statement plaintiff returned to the court, he affirmed that he exhausted his administrative
remedies as to his claim, Dkt. 6, and defendant has not contested that assertion. Accordingly,
this matter may be adjudicated on the merits.
Woodford v. Neo. 548 U.S. 81, 92 (2006)
("Exhaustion is no longer left to the discretion of the district court, but is mandatory."). For the
reasons which follow, defendant's Motion for Summary Judgment will be granted, and judgment
will be entered in his favor.
II. Standard of Review
Summary judgment "shallbe rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law." Fed. R. Civ. P. 56(c). The moving party bears the burden of proving that judgment on
the pleadings is appropriate. See Celotex Corp. v. Catrett. 477 U.S. 317, 323 (1986) (moving
party bears the burden of persuasion on all relevant issues). To meet that burden, the moving
party must demonstrate that no genuine issues of material fact are present for resolution. Id at
322. Once a moving party has met its burden to show that it is entitled to judgment as a matter of
law, the burden then shifts to the non-moving party to point out the specific facts which create
disputed factual issues. Anderson v. Liberty Lobbv. Inc.. 477 U.S. 242,248 (1986); Matsushita
Electrical Industrial Co. v. Zenith Radio Corp.. 475 U.S. 574, 587 (1986). In evaluating a motion
for summary judgment, a district court should consider the evidence in the light most favorable
to the non-moving party and draw all reasonable inferences from those facts in favor of that
party. United States v. Diebold. Inc.. 369 U.S. 654, 655 (1962). Those facts which the moving
party bears the burden of proving are facts which are material. " [T]he substantive law will
identify which facts are material. Only disputes over facts which might affect the outcome of the
suit under the governing law will properly preclude the entry of summary judgment." Anderson.
477 U.S. at 248. An issue of material fact is genuine when, "the evidence ... create[s] [a] fair
doubt; wholly speculative assertions will not suffice." Ross v. Communications Satellite Corp..
759 F.2d 355, 364 (4th Cir. 1985). Thus, summary judgment is appropriate only where no
material facts are genuinely disputed and the evidence as a whole could not lead a rational fact
finder to rule for the non-moving party. Matsushita. 475 U.S. at 587.
III. Analysis
Defendant has established the following facts. At the time he executed his affidavit on
June 25, 2014, defendant had been employed as a corrections officer at Sussex II for
approximately six (6) years. Riddick Aff H1. On February 5, 2013, he was working as a floor
officer on the day shift in Housing Unit #3, where plaintiff was confined in a strip cell. Id. H4.
At approximately 11:55 a.m., defendant approached plaintiffs cell and opened the tray slot to
serve plaintiff a lunch tray. Id Plaintiff, to whom defendant had never spoken before, said that
he did not want the tray and asked to see the nurse. Id Defendant returned the tray to the
feeding cart and explained to plaintiff that he had to finish his assigned task of feeding offenders
their lunches, and that he would contact the nurse thereafter. Id Defendant then attempted to
give plaintiff a cup ofjuice through the tray slot, but plaintiff grabbed it, began to curse, and tried
to knock the cup out of defendant's hand. Id At that point defendant noticed that plaintiff also
was holding a second cup containing an unidentified liquid, and plaintiff both spilled the juice on
defendant and threw the unidentified liquid at him, striking defendant on his pants leg and his
shoe. Id Defendant tried to close the tray slot with his hand, but plaintiff wrapped a t-shirt
around the slot to keep defendant from being able to do so. Id Defendant used his hands to try
to get the t-shirt off the slot and eventually got it away from plaintiff by pulling it through the
slot. Id Plaintiff continued to yell and curse and kept grabbing defendant's arms as he
attempted to close and secure the tray slot, and after several such attempts defendant "placed
distance between [himself] and the offenderand used [his] foot to close the slot, and then
secure[] it." Id Defendant attests:
I did not intentionally close Johnson's hands in the slot, nor did I
intend to harm him. I did not observe Johnson's hands or arms in the
tray slot when I closed it with my foot, nor did I stomp his hands or
arms in the tray slot as he claims in this lawsuit. As Johnson kept
grabbingmy armswhen I attempted to closethe trayslot, my aim was
to prevent being assaulted further by Johnson.
RiddickAff45.
As a result of the incident, defendant wrote a disciplinary offense report against plaintiff
for the infraction of attempting to commit simple assault upon a non-offender. Riddick Aff. ^ 6.
On February 12, 2013, plaintiff was convicted of the charge and penalized with 30 days in
disciplinary segregation. Id.; Enc. A.
Defendant has also provided the affidavit of R. Connor, R.N., the Health Services
Administrator at Sussex II. Connor Aff. ^ 1. Nurse Connor attests that on February 5, 2013,
plaintiff was seen by a nurse during sick call at 7:55 p.m., when he complained of being
"assaulted by [an] officer during lunch." Id H5. The nurse took plaintiffs vital signs and noted
muhiple bruised areas to his lower left arm and a slight amount of swelling in his upper left arm.
Plaintiff stated that the arm was tender to the touch, and the nurse noted a facial grimace. Id
Plaintiff stated that his pain level was 5 or 6, and the nurse observed that he had limited range of
motion due to the pain and "bilateral wrist restraints." Id. The nurse noted no open areas or
protruding bones, and she referred plaintiffs chart to the physician for an x-ray of the arm to rule
out a fracture. Id. She also gave the plaintiff Motrin. Id.
Two days later, plaintiff was seen by the doctor for complaints of pain in his left shoulder
and arm. Connor Aff. H6. The doctor noted that plaintiff was a well built, muscular individual
in no distress, alert, oriented and ambulatory. Id, Upon examination the doctor found no
restriction of motion of plaintiffs left arm or hand, no bone deformity, and some skin
ecchymosis to the forearm and arm.^ Id An x-ray was taken of the arm that reflected no acute
fracture or dislocation of the shoulder, forearm or humerus., and the doctor assessed the injury as
^Ecchymosis is definedas a discoloration of the skin from bleeding underneath, typically caused
by bruising.
minor contusions to the left shoulder and upper extremity. Id.
On February 18, 2013, plaintiff was seen by the nurse during sick call for his complaint of
left arm injury. He stated that this pain level was seven, and the nurse noted bruising of the left
forearm with no swelling and gave plaintiff Motrin. Connor Aff. ^ 7. Nine days later, the nurse
visited plaintiff on sick call and plaintiff reported that he no longer needed to be seen. Connor
Aff. 18. Plaintiff was seen and assessed by medical personnel at Sussex II four more times
between March 22 and May 30,2013 for complaints of left arm pain. Staff noted on those
occasions that he was not in distress, he had no restriction in his range of motion, and he had no
bone fracture, and plaintiff continued to be prescribed Motrin and analgesic balm. Id
9-12.
On June 11, 2013, plaintiff was transferred to Wallens Ridge State Prison. Id. ^ 13.
Plaintiffs Response to Motion for Summary Judgment is neither sworn nor notarized,
and consists of a reiteration of the factual allegations in the complaint and a brief memorandum
of law. Plaintiffs pleading thus is insufficient to oppose a motion for summary judgment, as it is
unsworn and does not subject the author to the penalty of perjury for any misstatements. Fed. R.
Civ. P. 56(e);
United States v. White. 366 F.3d 291, 300 (4th Cir. 2004) (unsworn argument
does not constitute evidence to be considered in opposition to summary judgment motion); Price
V. Rochford. 947 F.2d 829, 832 (7th Cir. 1991) (verification based on personal knowledge or
information and belief is insufficient to oppose a motion for summary judgment because it avoids
the possibility ofpeijury). Accordingly, plaintiffs unsworn statements cannot be considered
here.^
^Moreover, even if plaintiffs response had been sworn, the nonmoving party may not defeat a
properly-supported summary judgment motion by simply substituting the "conclusory allegations
of the complaint or answer with conclusory allegations of an affidavit." Luian v. NatM Wildlife
Fed'n. 497 U.S. 871, 888 (1990). This is true even where the nonmoving party in such a situation
is a pro ^ prisoner entitled to liberal construction of his pleadings; a "declaration under oath ... is
In determining whether the Eighth Amendment has been violated by the use of excessive
force, 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 (1992); see also. Whitlev v. Albers. 475 U.S. 312, 320-21 (1986). "When prison
officials maliciously and sadistically use force to cause harm, contemporary standards of decency
always are violated ... whether or not significant injury is evident." Hudson. 503 U.S. at 9. The
extent of injury suffered by the inmate is relevant to the Eighth Amendment inquiry, both
because it may suggest whether the use of force could plausibly have been thought necessary in a
particular situation, Whitlev. 475 U.S. at 321, and because it may provide some indication of the
amount of force applied, Wilkins v. Gaddv.
U.S.
, 130 S.Ct. 1175, 1178 (2010) (rejecting
the notion that an excessive force claim involving only de minimis injury is subject to automatic
dismissal). The Eighth Amendment generally excludes from constitutional recognition de
minimis uses of physical force, Hudson. 503 U.S. at 9, and an inmate who complains of a "push
or shove" that causes no discemable injury "almost certainly" fails to state a valid excessive force
claim. Ml, quoting Johnson v. Glick. 481 F.2d 1028,1033 (2d Cir, 1973). Nonetheless, "[ijnjury
and force ... are only imperfectly correlated, and it is the latter that ultimately counts. An inmate
who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim
merely because he has the good fortune to escape without serious injury." Wilkins. 130 S.Ct. at
not enough to defeat a motion for summary judgment. He has to provide a basis for his statement.
To hold otherwise would render motions for summary judgment a nullity." Campbell-El v. Dist. of
Columbia. 874 F.Supp. 403, 406 - 07 (D.C. 1994). Here, the factual allegations in plaintiffs
response amount to nothing more than a conclusory recapitulation of the complaint, without
additional supporting evidence. Thus, even had it been sworn, plaintiffs pleading would still be
insufficient to defeat defendant's summary judgment motion. Dovlev. Sentry Ins.. 877 F.Supp. 1002,
1005 (E.D. Va. 1995) (Merhige, J.) (to defeat a motion for summaryjudgment, a nonmoving party
cannot rely on "mere belief or conjecture, or the allegations or denialscontainedin the pleadings.")
1178-79.
Defendant Riddick's attestation that he did not intend to harm plaintiff when he used his
foot to close plaintiffs tray slot, and that his sole aim in doing so was to prevent being further
assaulted by plaintiff, is uncontroverted. In addition, plaintiffs being disciplined for assaulting
the defendant is not contested. Given this evidence, plaintiff has failed to carry his burden to
show that defendant applied force "maliciously and sadistically to cause harm," Hudson. 503
U.S. at 7, and therefore fails to establish an Eighth Amendment violation.
V. Conclusion
For the foregoing reasons, the defendant's Motion for Summary Judgment will be
granted, and judgment will be entered in favor of the defendant by an appropriate Order to be
issued with this opinion.
day of
r\
U
c\
2015.
'
Alexandria, Virginia
Leonie M. Briukeraa
United States DistrictJudge
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