Jones v. Vass et al
Filing
17
MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 1/29/13. Copy sent: Yes(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
TIMOTHY A. JONES,
Plaintiff,
v.
Civil Action No. 3:11CV510
SANDRA VASS, /«/.,
Defendants.
MEMORANDUM OPINION
Timothy A. Jones, a former Virginia prisoner proceeding pro se, filed this 42 U.S.C.
§ 19831 action in which he alleges Defendants violated his rights under the Eighth Amendment.2
The matter is before the Court on Defendant Vass's Motion for Summary Judgment and Jones's
failure to serve the two John Doe defendants within the time required by Federal Rule of Civil
Procedure 4(m).
1That statute provides, in pertinent part:
Every person who, under color of any statute ... of any State ... subjects,
or causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law....
42 U.S.C. §1983.
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted." U.S. Const, amend. VIII.
Rule 4(m) provides:
If a defendant is not served within 120 days after the complaint is filed,
the court—on motion or on its own after notice to the plaintiff—must dismiss the
action without prejudice against that defendant or order that service be made
within a specified time. But if the plaintiff shows good cause for the failure, the
I.
FAILURE TO SERVE DOE DEFENDANTS
Pursuant to Federal Rule of Civil Procedure 4(m), Jones had one hundred and twenty
(120) days from the filing ofthe complaint to serve the John Doe defendants.4 Here, that period
commenced on January 31, 2012. By Memorandum Order entered on September 17, 2012, the
Court directed Jones, within eleven (11) days of the date of entry thereof, to show good cause for
his failure to serve the John Doe defendants within the time required by Rule 4(m).5 Jones failed
to respond. Accordingly, the claims against the John Doe defendants will be DISMISSED
WITHOUT PREJUDICE.
II.
A.
MOTION FOR SUMMARY JUDGMENT
Summary Judgment Standard
Summary judgment must be rendered "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). The party seeking summary judgment bears the responsibility to inform the
court of the basis for the motion, and to identify the parts of the record which demonstrate the
absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 471 U.S. 317, 323
court must extend the time for service for an appropriate period. This subdivision
(m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(l).
Fed. R. Civ. P. 4(m).
4The Court considers the complaint "filed" on the date it concludes statutory screening
underthe PrisonLitigation Reform Act. See Fordv. Johnson, 362 F.3d 395, 398 (7th Cir. 2004).
5Rule 4(m) requires that, absent a showing ofgood cause, the Court must dismiss
without prejudice any complaint in which the plaintiff fails to serve the defendant within the
allotted 120-day period. Fed. R. Civ. P. 4(m). Courts find good cause to extend the 120-day
time period when the plaintiffdemonstrates he has made '"reasonable, diligent efforts to effect
service on the defendant.'" Venable v. Dep'tofCorr.,No. 3:05cv821, 2007 WL 5145334, at *1
(E.D. Va. Feb. 7,2007) {quoting Hammad v. Tate Access Floors, Inc., 31 F. Supp. 2d 524, 528
(D. Md. 1999)).
(1986). "[WJhere the nonmoving party will bear the burden of proof at trial on a dispositive
issue, a summary judgment motion may properly be made in reliance solely on the pleadings,
depositions, answers to interrogatories, and admissions on file." Id. at 324 (internal quotation
marks omitted). When the motion is properly supported, the nonmoving party must go beyond
the pleadings and, by citing affidavits or '"depositions, answers to interrogatories, and
admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Id.
{quoting former Fed. R. Civ. P. 56(c) and 56(e) (1986)).
In reviewing a summary judgment motion, the court "must draw all justifiable inferences
in favor of the nonmoving party." United States v. Carolina Transformer Co., 978 F.2d 832, 835
(4th Cir. 1992) {citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). However, a
mere scintilla of evidence will not preclude summary judgment. Anderson, 411 U.S. at 251
{citingImprovement Co. v. Munson, 81 U.S. (14 Wall.) 442,448 (1872)). "'[T]here is a
preliminary question for the judge, not whether there is literally no evidence, but whether there is
any upon which a jury could properly proceed to find a verdict for the party ... upon whom the
onus of proof is imposed.'" Id {quoting Munson, 81 U.S. at 448). Additionally, '"Rule 56 does
not impose upon the district court a duty to sift through the record in search of evidence to
support a party's opposition to summary judgment.'" Forsyth v. Barr, 19F.3dl527, 1537 (5th
Cir. 1994) (quotingSkotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n.7 (5th Cir. 1992)); see
Fed. R. Civ. P. 56(c)(3) ("The court need consider only the cited materials
"). In support of
her Motion for Summary Judgment, Defendant Vass submits her affidavit (Mem. Supp. Mot.
Summ. J. Ex. A ("VassAff."))s and the affidavit of Johnnette R. Cleaton, the Epidemiology
Nurse for the Virginia Department of Corrections ("VDOC") {id. Ex. B ("Cleaton Aff.")), and
Jones's medical chart (Vass Aff. Attach. A).
As a general rule, a non-movant must respond to a motion for summary judgment with
affidavits or other verified evidence. Celotex Corp., 477 U.S. at 324. Nurse Vass provided
Jones with appropriate Roseboro notice.6 Jones has not responded to the Motion for Summary
Judgment, however, he submitted a sworn complaint containing a three-page "Statement of the
Claim."
Nevertheless, the facts offered by a sworn declaration must also be in the form of
admissible evidence. See Fed. R. Civ. P. 56(c)(4). In this regard, the statement in the sworn
declaration "must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters stated." Id.
Therefore, "summary judgment affidavits cannot be conclusory or based upon hearsay." Evans
v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996) (internal citations omitted).
In his complaint, Jones argues: "Based on the irreparable harm and danger from the results of
Nurse Vass Action, I have suffer from extreme mental anguish and emotional stress. I am
experiencing numeroues [sic] health issues and personal injuries as a result of Nurse Vass
Actions." (Compl. 6.)7 Jones contends: "Nurse Vass knew orshould have known that the
exposal [sic] of other disease were likely under the present conditions of the contaminated and
dirty gloves." {Id.) Jones's statements run afoul of the above prohibitions against conclusory
statements and hearsay. Moreover, conclusory comments of this ilk fail to create material
disputes of fact. See United States v. Roane, 378 F.3d 382,400-01 (4th Cir. 2004) (observing
that "[a]iry generalities" and "conclusory assertions" cannot"stave off summary judgment")
(alteration in original; internal quotation marks omitted).
6See Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975).
7The Court employs the pagination assigned by the CM/ECF docketing system for
citations to and quotations from Jones's complaint.
In light of the foregoing principles and submissions, the following facts are established
for the purposes of the Motion for Summary Judgment. All permissible inferences are drawn in
favor of Jones.
B.
Summary of Undisputed Facts
On October 27,2009, Sandra Vass, RN, a nurse at Halifax Correctional Center,
administered tuberculin skin tests ("TST") to the inmate population. (Compl. 4; Vass Aff. ^ 2.)
The TST determines whether individuals are infected with tuberculosis. (Vass Aff. 12.) Jones
states:
As I stood in line awaiting my turn to be administered the shot, I observed that
Nurse Vass was not changing her gloves in between each tuberculosis shot given.
There was something that I also observed, she had already pre-prep the needles
and had them all on the table. After noticing that she was not changing her gloves
and that serve of the offender had bleed after being administered the shot, when
the time came for me to take the shot I respectfully asked Nurse Vass if she could
change her gloves because of possible contamination from the previous offenders.
I told her, that I had just saw her wipe blood from the offender who had just went
before me arm, and that I would like for her to change her gloves before
administering me the tuberculosis shot. I told her that I watch her give
approximately fifty (50) offenders shots and never once change her glo[v]es.
Nurse Vass said "NO" I am not going to change my gloves for you.
(Compl. 4 (grammatical errors in original).) Jones asked Vass to change her gloves several
additional times and she refused. (Id 4-5.)
Vass explains that medical staff administer the TST intradermally, meaning between the
skin layers and not intraveneously. (Vass Aff. ffi[ 2.) The VDOC has no policy requiring nurses
administering the TST to wear latex gloves, nor a requirement that the nursing staff change
gloves while administeringthe TST so long as no blood or bodily fluid contaminatesthem.
(Vass Aff. ffif 3-4; Cleaton Aff. fl[ 3-4.) Vass wore gloves while administering the TST
although not required to do so. (Vass. Aff. ffi[ 3, 5.) No blood or bodily fluid contaminatedher
gloves when she administered the TST to Jones.7 (Id. U5.) Vass cleaned Jones's skin with an
alcohol swab and injected the tuberculin into the superficial layer of his skin, about 3 mm. (Id.)
Jones's medical chart from August 1, 2008, when he arrived at Halifax Correctional
Center, until March 23, 2010, when the VDOC transferred him to another facility, reflects no
medical repercussions from the TST administration. (Id. K6; Vass Aff. Attach. A6-9.)8
C.
Analysis
Although Jones references the Due Process Clause9 inhis Complaint, "it is now well
established that the Eighth Amendment 'serves as the primary source of substantive protection to
convicted prisoners,' and the Due Process Clause affords a prisoner no greater substantive
protection 'than does the Cruel and Unusual Punishments Clause.'" Williams v. Benjamin, 11
F.3d 756, 768 (4th Cir. 1996) (quoting Whitley v. Albers, 475 U.S. 312, 327 (1986)). Thus,
Jones's substantive due process claim is subsumed within his claim that Nurse Vass violated the
Eighth Amendment by failing to follow proper hygienic procedures.
To survive a motion for summary judgment on an Eighth Amendment "cruel and unusual
punishment" claim, Jones "must prove two elements: (1) that objectively the deprivation of a
basic human need was 'sufficiently serious,' and (2) that subjectivelythe prison officials acted
with a 'sufficiently culpable state of mind.'" Johnson v. Quinones, 145 F.3d 164, 167(4th Cir.
*7
Jones alleges only that he saw Nurse Vass wipe blood from another inmate and asked
herto change gloves due to "possible contamination." (Compl. 4.) No evidence exists reflecting
that Jones saw blood on Vass's gloves. Jones fails to direct the Court to evidence that reflects
Vass employed the gloves themselves rather than an alcohol swab to clean blood off another
inmate.
8The Court employs the pagination assigned by the CM/ECF docketing system for the
medical records.
"No State shall... deprive any person of life, liberty, or property, without due process
of law...." U.S. Const, amend. XIV, § 1.
6
1998) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). To satisfy the objective element of
an Eighth Amendment claim, the deprivation complained of must be extreme and amount to
more than the "'routine discomfort [that] is part ofthe penalty that criminal offenders pay for
their offenses against society.'" Strickler v. Waters, 989 F.2d 1375, 1380 n.3 (4th Cir. 1993)
(some internal quotation marks omitted) (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992)).
Thus, Jones '"must produce evidence of a serious or significant physical or emotional injury
resulting from the challenged conditions.'" Rish v. Johnson, 131 F.3d 1092, 1096 (4th Cir. 1997)
(quoting Strickler, 989 F.2d at 1381).
The subjective prong of a deliberate indifference claim requires the plaintiff to
demonstrate that a particular defendant actually knew of and disregarded a substantial risk of
serious harm to his person. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). "Deliberate
indifference is a very high standard—a showing of mere negligence will not meet it." Grayson
v. Peed, 195 F.3d 692, 695 (4th Cir. 1999) (citing Estelle v. Gamble, 429 U.S. 97,105-06
(1976)).
[A] prison official cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the official knows of
and disregards an excessive risk to inmate health or safety; the official must both
be aware of facts from which the inference could be drawn that a substantial risk
of serious harm exists, and he must also draw the inference.
Farmer, 511 U.S. at 837. Farmer teaches "that general knowledge of facts creating a substantial
risk of harm is not enough. The prison official must also draw the inference between those
general facts and the specific risk of harm confronting the inmate." Quinones, 145 F.3d at 168
(citingFarmer, 511 U.S. at 837); see Rich v. Bruce, 129 F.3d 336, 340 (4th Cir. 1997)) (stating
same). Thus, to survive a motion for summary judgment under the deliberate indifference
standard, a plaintiff "must show the official in question subjectively recognized a substantial risk
of harm
[and] "that the official in question subjectively recognized that his actions were
'inappropriate in light of that risk.'" Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th
Cir. 2004) (quoting Rich, 129 F.3d at 340 n.2).
Jones fails to satisfy either the objective or subjective component for his Eighth
Amendment claim. With respect to the objective component, Jones fails to demonstrate, as he
must, that he sustained any injury, much less a serious or significant physical or emotional injury
resulting from Nurse Vass's failure to change her gloves. Strickler, 989 F.2d at 1381 (4th Cir.
1993). Jones's general claims of mental anguish and emotional stress fail to establish a
sufficiently serious injury. See id. at 1381 n.9; see also Lowery v. Bennett, No. 11-6425, 2012
WL 3218006, at *5 (4th Cir. Aug. 9, 2012) (holding that "bare allegations that [plaintiff inmate]
suffered 'pain' are not sufficient to establish the requisite level of seriousness"). Given that
deficiency, Jones fails to demonstrate an Eighth Amendment violation. See Solan v. Rice, No.
3:09CV643, 2011 WL 2982190, at *3-5 (E.D. Va. July 22, 2011) (concluding inmate's
complaint about "suffering] great psychological stress and anxiety" from lack of testing for
cancer failed to support an Eighth Amendment claim) (internal quotation marks omitted); Harris
v. Vass, No. 7:10CV00327, 2010 WL 8750302, at *l-2 (W.D. Va. July 30, 2010) (dismissing as
legally frivolous nearly identical claim against Nurse Vass); Winslow v. Johnson, No.
3:08CV184, 2009 WL 743437, at *4 (E.D. Va. Mar. 18, 2009) (finding that plaintiff inmate's
claims failed to establish resulting serious physical or emotional injury).10
Jones also cannot establish the subjective component. Jones fails to introduce evidence
sufficient for a finder of fact to conclude that, by not changing her gloves when requested, Nurse
10 Jones cannot pursue a claim for monetary relief for any emotional harm because he
failed to sustain any physical injury. See 42 U.S.C. § 1997e(e) ("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.").
8
Vass knew of and disregarded a substantial risk of harm to Jones. Farmer, 511 U.S. at 837.
Jones puts forth no evidence to counter Nurse Vass's sworn statement that no blood or bodily
fluid contaminated her gloves when she administered the TST to Jones. (Vass. Aff. \ 5.) Thus,
Jones fails to establish that Nurse Vass perceived a substantial risk of harm to Jones, much less,
disregarded that risk.
Accordingly, Vass's motion for summary judgment will be GRANTED. Jones's
constitutional claim against Nurse Vass will be DISMISSED.
An appropriate Final Order shall issue.
Date:/-n-0
Richmond, Virginia
JsL
James R. Spencer
United States District Judge
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