Dunning v. Renoles et al

Filing 64

MEMORANDUM OPINION. Signed by District Judge Leonie M. Brinkema on 07/10/2017. (c/s to Plaintiff)(jlan)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

Ferry Dunning,
Plaintiff,

I:16cv444 (LMB/IDD)

V.

Superintendent Newton and Sgt. Roney,
Defendants.
MEMORANDUM OPINION

Perry Dunning, a Virginia inmate proceeding pro se, has filed a civil rights action,
pursuant to 42 U.S.C. § 1983, alleging that he suffered endangerment during his former
confinement at the Riverside Regional Jail ("RRJ"). The matter is before the Court on the
Motion for Summary Judgment of Superintendent Newton and Sgt. Roney, the only defendants

who were successfully served in the lawsuit.^ Defendants submitted a memorandum of law with
supporting exhibits, and provided plaintiff with the notice required by Local Rule 7(K) and

Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975). [Dkt. No. 53-55] Dunning responded with

an opposition captioned as a Motionto Deny Summary Judgment. [Dkt. No. 57] After careful

consideration of these submissions, defendants' Motion for Summary Judgment will be granted.^

'Because service has not been effected on named defendants Renoles and Masinburg and more

than 90 days have passed since the complaint was filed, they will be dismissed from the action
without prejudice pursuant to Fed. R. Civ. P. 4(m).
^Defendants also moved for dismissal ofthe action as a sanction for Dunning's failure to comply

with this Court's Orderthat he provide a more definite statement as to the dates and times of his
alleged assaults. [Dkt. No. 49] The Motion to Dismiss will be denied as moot in favor of
adjudicating theMotion for Summary Judgment because defendants' entitlement to summary relief
is clear and the FourthCircuitCourtofAppeals strongly favors resolution of cases on their merits.
See United States v. Shaffer Equip. Co.. 11 F.3d 450,453 (4th Cir. 1993).

I. Background

In the amended complaint,which is the operativecomplaint in the lawsuit [Dkt. No. 5],
Dunning claims to be a former police officer and alleges that defendants "failed to protect [him]
from violence at the hands of other prisoners" at RRJ. Id at 5. Plaintiff states that Sgt. Givens

instructed him to write a statement concerning informationhe had received about the murder of a
child, and "within days" after he gave the statementto RRJ's investigations unit the child's father
and other members of the Bloods gang had obtained copies. Dunning alleges that Sgt. Roney

"was aware that the Bloods gang had put a hit out on [his] life," and both Roney and
Superintendent Newton "took no action" to protect him after he informed them that he had been
assaulted and stabbed. Id at 5-6.

The material facts demonstrated by defendants' exhibits diverge markedly from
Dunning's allegations. First, defendants' exhibits establish that Dunning submitted no

institutional grievancethat made any reference to his having been stabbed until a month after this
lawsuit was filed, and even then the grievance concerned only his dissatisfaction with not being

seen more promptly by medical personnel; he raised no issues concerning lack of security, being
endangered, or not being protected from other inmates. As defendants describe in detail, RRJ

has an established grievanceprocedure which is explainedto inmates when they enter RRJ and is
included in the Inmate Handbook. Def Mem. at 3-5; SpratleyDecl. ^3 and Ex. A. Grievance
records maintained at RRJ reveal that Dunning availed himself of this process on a number of
occasions during 2015 and 2016, albeit in most instances not in compliance with RRJ's

procedural requirements. His grievances concerned many topics, including missing items from
his laundry bag, the preparationof his food tray, his inmate account, his legal mail, and an
offensive comment by a transportationofficer. SpratleyDecl. Iffl 12 - 24. None recounted any

incidents of violence directed at him by other inmates.

A month after this lawsuit was filed, Dunning submitted a grievance asking for
underwear and socks on May 18,2016. RRJ's grievance coordinator, Viola Spratley, went to

plaintiffs housing unit to discuss the issue of his clothing, and while she was there plaintiff
remarked that he had been asking to see medical for treatment because he had been stabbed.
Believing that Dunning was referring to something that had just occurred, Spratley asked

questions such as where he has been stabbed and whether he was bleeding, and she learned that

the alleged stabbing had happened several months earlier and that plaintiff had no wound to show
her. histead, plaintiff was focused on repeating that he was trying to see medical. Spratley Decl.
H25. Because Spratley had no way of knowing whether plaintiff had made previous requests to
see medical that had not been honored, she gave him an Inmate Grievance Form to use if he
wanted to submit a grievance. Spratley Decl. H25. Although that grievance, dated 5/18/16, was
the first time Dunning had complained of any alleged stabbing, he stated:
I have put in 9 request in the past 2 mths to see Medical about a
stabbing and my medication. I have been told Im to see the Doctor
each week but it has not happened. I was stabbed with the blunt
part of the spoon in the ribs 2 mths ago and once in the back. Two
Medication techs and 2 LPNs and 1

are aware and I have not

been seen.

SpratleyDecl. 129 and Ex. R. Officer Spratley forwarded Dunning's grievance to the medical
department on May 25, 2016, and on May 27 a registered nurse responded:
Submit another sick call, because you have been seen for spider
bite, nothing regarding puncture wounds.
Spratley Decl. ^ 30 and Ex. R.

In addition to this dearth of evidence in Dunning's grievance history as to his fear of other

inmates, inadequate security or protection, or the allegedstabbing incident, his medical history

during the relevant time period likewise provides no support for his current claim. On January

18,2016, Dunningwas seen by medical staff at sick call for a complaint of a possible "spider

bite" and concerns regarding his prescription for lactulose, a medication for constipation. Flippen

Decl. H3. Dunning submitted two sick callrequests in March, 2016, bothconcerning a spider
bite on his arm and his medication. Flippen Decl.

4-5. He was triaged by nurses on April 15

and May 1,2015, and in both instances he again referenced only a spider bite and concerns about
his medication. Flippen Decl. fl 7-8. He was seen at sick call on May 2, 2016, and the

examining nurse noted a spider bite on his left wrist that he said had occurred about six weeks
earlier. Flippen Decl. 19.

On June 7,2016, about two months after this lawsuit was filed. Dunning for the first time

submitted a health services request that mentioned having been stabbed. In its entirety, the
request stated:

For the 11th time this is not about a spider bit. [sic] I was stabbed
3 mths back and if Im not seen soon I will contact your main office
and inform them that you have refused me care.

Flippen Decl. T| 10 and Ex. G. When Dunning was seen in the mental health department on June
12,2016, the psychiatristnoted that he "also reports that he was stabbed with a shank 2x3
months ago." Flippen Decl. f 11 and Ex. I. Nonetheless, when Dunning was seen by the

medical doctor two days later, it was noted on his chart only that he took lactulose for chronic
constipation deriving from his medications and that otherwise he was doing well. In the

subjective portionof the inmate section it stated, "Bruised side fi'om injury three months ago has
resolved completely." Flippen Decl. H12 and Ex. I.

After receiving defendants' Roseboro notice. Dunning filed his Motion to Deny Summary

Judgment. [Dkt. No. 57] After citing case lawforthe proposition that summary judgment is to be

denied where there is a genuine issue of material fact, Dunning asserts: "The defendants

submitted exhibits to the court, but they did not submit paper work that supports the plaintiffs
facts. The defendant has misled this court about the facts and has not been genuine in its

documents." He claims that defendants have "left out'' 12 unspecified documents, and "several of
the documents were put in the trash." Dunning further states vdthout elaboration that defendants
"made several attempts to prevent [him] from responding to any of the motions," and he asks the
Court to note that defendants have not submitted "any of the 22 request forms that were given
regarding the stabbing."
11. Standard of Review

Summary judgment "shall be 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). Once a

moving party has met its burden to show that it is entitled to judgment as a matter of law, the
burden 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). 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).
III. Analysis

Defendants argue that they are entitled to summaryjudgment on several grounds, all of
which are meritorious. The threshold and therefore dispositive consideration is that Dunning
failed to exhaust his administrative remedies for his present claim of endangerment. Pursuant to
the Prison Litigation Reform Act ("PLRA"), "[n]o action shall be brought with respect to prison

conditions under section 1983 of this title, or any other federal law, by a prisoner confined in any
jail, prison, or other correctional facility until such administrative remedies as are available are
exhausted." ^

42 U.S.C. § 1997e(a); Woodfordv. Ngo. 548 U.S. 81, 85 (2006) ("Exhaustion

is no longer left to the discretion of the district court, but is mandatory."). As has been

recognized previously in this district, "the PLRA amendment made [it] clear that exhaustion is
now mandatory." Langford v. Couch. 50 F.Supp.2d 544, 548 (E.D. Va. 1999). A prisoner now
must exhaust all available administrative remedies, whether or not they meet federal standards or

are plain, speedy or effective, Porter v. Nussle. 534 U.S. 516, 524 (2002), and even if exhaustion

would be futile because it would not provide the relief the inmate seeks. Davis v. Stanford. 382
F.Supp.2d 814, 818 (E.D. Va.), afPd. 127 Fed. App'x 680 (4th Cir. 2005).

The PLRA requires "proper" exhaustion, which demands "compliance with an agency's
deadlines and other critical procedural rules." Woodford. 548 U.S. at 90-91,93. Proper

administrative exhaustion requires that "a prisoner must submit inmate complaints and appeals in
the place, and at the time, the prison's administrative rules require." Dale v. Lappin. 376 F.3d
652, 655 (7th Cir. 2004). The benefits of proper exhaustion are realized only if the prison

grievance system is given a "fair opportunity to consider the grievance" which will not occur

"unless the grievant complies with the system's critical procedural rules." Id. at 95; s^ also

Moore V. Bennette. 517 F.3d 717, 725 (4th Cir. 2008),

When, as here, a Virginia prisoner is confined in a local jail, before bringing an action in
federal court he must receive a response to his properly-filed grievance and, if unsatisfactory, he

must pursue it through all available levels of appeal before presenting that claimin federal court.
In this action, as described above. Dunning clearly was well aware of the grievance process and

used it frequently, yet he never properlyexhausted his present claim that he was stabbed as the
result of defendants' failure to protect him. Therefore, as defendants' undisputed evidence

demonstrates that Dunning failed properly to exhaust administrative remedies before filing this

lawsuit, they are entitled to summaryjudgment on that basis.

Anderson v. XYZ Corr. Health

Servs.. 407 F.3d 674 (4th Cir. 2005) (courts have no discretion to dispense with exhaustion

requirement in cases where PLRA applies).^
Lastly, the Court notes that even if Dunning had exhausted his claim, he has come

forward with no credible evidence to support his contentionthat he was stabbed at RRJ, while

^Dunning's attempt to create a genuine issue of material fact as to the administrative exhaustion
ofhis claim in his Motion for Summary Judgment falls short. The Motion is neither notarizednor
sworn, and as it thus does not subject Dunning to the penalty of perjury for any misstatements, it
cannot defeat defendants' summaryjudgment request. Fed. R. Civ. P. 56(e); see United States v.
White. 366 F.3d 291, 300 (4th Cir. 2004) (unsworn argument does not constitute evidence to be
considered in opposition to summaryjudgmentmotion). Moreover, evenif Dunninghad signedthe
Motion under penalty of perjury, the non-moving party may not defeat a properly-supported
summary judgment motion by simplysubstituting the "conclusory allegations of the complaint or
answer with conclusoryallegations of an affidavit." Luian v. Nat'l Wildlife Fed'n. 497 U.S. 871,
888(1990). Thisappliesevenwhere the non-moving partyis a pro se prisoner. Campbell-El v. Dist.
of Columbia. 874 F.Supp. 403,406 - 07 (D.C. 1994); see al^, Local Civil Rule 7(K)(3) (to defeat
a dispositive motion, a pro se party"must identify all facts stated by the moving party with which
the pro se party disagrees and must set forth the pro se party's version of the facts by offering
affidavits... orbyfiling swornstatements...."). Durming's conclusory andunsubstantiated references
in his Motion to defendants withholding favorable evidence and misleading the Court are no more

than"wholly speculative assertions" anddo not suffice to create a genuine issue as to whether his
present claim was administratively exhausted. Ross. 759 F.2d at 364.

the defendants' evidence in fact shows that he sufferedno physical injury at that facility. As a
resuh, even if Dunning had exhausted his claim, defendants would be entitled to summary
judgment on the basis of 42 U.S.C. § 1997e(e), which provides:

No Federal civil action may be brought by a prisoner confined in a
jail, prison, or other correctional facility, for mental or emotional
injury suffered while in custody without a prior showing ofphysical
injury or the commission of a sexual act.
See Brooks V. Liotrot. 2013 WL 4498679 *4 (E.D. Va. Aug. 21,2013) ("Section 1997(e)

prohibits inmates from bringing actions for mental or emotional injury suffered while in custody
without a prior showing of physical injury."), afFd. 549 F. App'x 173 (4th Cir. 2013).
IV. Conclusion

For the foregoing reasons, the Motion for Summary Judgment of defendants Newton and
Roney v^ll be granted, and final judgment will be entered in their favor. The claims against

defendants Renoles and Masinburg will be dismissed without prejudice pursuant to Fed. R. Civ.
P. 4(m). Defendants' Motion to Dismiss for Plaintiffs Failure to Comply will be denied as moot.

Plaintiffs Motion to Deny Summary Judgment will be denied, and his Motions to Move Forward
and to Request Update will be denied as moot. An appropriate Order and Judgment shall issue.

Entered this _ fi

Alexandria, Virginia

day of Qv

2017.

fsf
Leonie M. Brinkema

United States District Judge