Joyner v. Fleming et al

Filing 71

MEMORANDUM OPINION. Signed by Chief Judge Michael F. Urbanski on 3/18/2019. (tvt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
KENNETH BRIAN JOYNER,
Plaintiff,
v.
LESLIE J. FLEMING, et al.,
Defendants.

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Civil Action No. 7:16cv00486
MEMORANDUM OPINION
By: Michael F. Urbanski
Chief United States District Judge

Kenneth Brian Joyner, a Virginia inmate proceeding pro se, commenced this action
pursuant to 42 U.S.C. § 1983, naming numerous staff of the Virginia Department of Corrections
(“VDOC”) and Wallens Ridge State Prison as defendants. By memorandum opinion and order
entered May 8, 2018, the court granted defendants’ motion for summary judgment, but directed
defendants to file another motion for summary judgment regarding two unaddressed claims, an
equal protection claim and a retaliation claim. See ECF Nos. 59 and 60. Pursuant to the court’s
order, defendants filed another motion for summary judgment. See ECF Nos. 63 and 64. Joyner
responded and this matter is ripe for disposition. See ECF No. 70. After reviewing the record,
the court grants defendants’ motion.
I.
The allegations of Joyner’s unverified amended complaint are set out in the court’s prior
memorandum opinion. 1 See ECF No. 59. As relevant to the remaining claims before the court,
Joyner alleges that he was placed in the Special Housing Unit (“SHU”) from the Grooming
Standard Violator Housing Unit (“VHU”) on November 26, 2014, after he was charged with

1

The court notes that Joyner filed an unverified amended complaint on September 25, 2017. See ECF No.
43. By order entered September 29, 2017, the court noted that Joyner’s amended complaint constituted his “sole
pleading.” See ECF No. 46. Although his original complaint (ECF No. 1) is verified and his amended complaint
(ECF No. 43) is not, the court notes that the claims currently before the court were raised for the first time in his
unverified amended complaint.

(and ultimately convicted of) the disciplinary infraction of indecent exposure, when he
masturbated in front of a female officer. Joyner alleges that seven other inmates were placed in
the SHU after he was, but that the other inmates were all released before him. He also alleges
that one inmate in particular had been charged with the same offense as him, but that the other
inmate was released from segregation about a month before him. Joyner states that when he
inquired as to why everyone was being released except him, defendant Unit Manager Dennis
Collins told him that was the only inmate complaining and, therefore, they were going to release
him last. Joyner argues that he was denied equal protection and retaliated against because he
complained about the “unlawful treatment.”
Defendants moved for summary judgment and included an affidavit from Unit Manager
Dennis Collins. Collins avers that Joyner was assigned to the VHU on February 22, 2010.
Between that time and October 2017, Joyner received sixteen institutional disciplinary
convictions and, consequently, was “back and forth” between segregation, general population,
and VHU housing assignments. Joyner was assigned to the SHU on November 26, 2014,
following his receipt of the institutional disciplinary charge for indecent exposure. He stayed in
the SHU until he was released to general population on June 5, 2015. At the time of Joyner’s
indecent exposure charge in November 2014, he had already received two disciplinary
convictions in 2014: possession of contraband and possession of intoxicants. Collins affirms that
the Institutional Classification Authority’s (“ICA”) decision to continue Joyner in segregation
status between November 26, 2014 and June 5, 2015, was “in no way made out of retaliation,”
but was “an appropriate decision” that was “made in order to give Joyner an opportunity to
demonstrate stability in his behavior.” After his release from segregation on June 5, 2015,
2

Joyner remained in a general population assignment until he was returned to the VHU on
February 17, 2016. With the exception of a one-month assignment to segregation between
October 17, 2016 and November 16, 2016 (following another institutional disciplinary
conviction for possessing intoxicants), Joyner had, from February 17, 2016 through at least
August 2, 2018, remained assigned to the VHU.
Unit Manager Collins avers that the other inmate that Joyner references as having
received the same conviction as Joyner, offender Davis, was assigned to segregation on March 4,
2015, following receipt of an indecent exposure charge, and was released to general population
on May 15, 2015. Prior to that charge, offender Davis had not received an institutional charge
since June 2013. Collins states that while staff follows VDOC guidelines regarding offender
housing assignments, those decisions are made by the ICA on an individual basis. Numerous
factors are considered, including behavior patterns and history of disciplinary issues.

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offender’s housing assignment has no bearing on decisions made regarding another offender.
Collins affirms that at no time did he tell Joyner that he was being held in segregation longer
because of his complaints and grievances.
II.
Federal Rule of Civil Procedure 56(a) provides that a court should grant summary
judgment “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.” “Material facts” are those facts necessary to
establish the elements of a party’s cause of action. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). In order to preclude summary judgment, the dispute about a material fact must
be “‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the
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nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also JKC
Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). If the evidence
of a genuine issue of material fact “is merely colorable or is not significantly probative, summary
judgment may be granted.” Anderson, 477 U.S. at 250. In considering a motion for summary
judgment under Rule 56, a court must view the record as a whole and draw all reasonable
inferences in the light most favorable to the nonmoving party. See, e.g., Celotex Corp. v. Catrett,
477 U.S. 317, 322-24 (1986); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). However, the
non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to
defeat a motion for summary judgment. Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th
Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that
would apply at a trial on the merits.” Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1315-16 (4th
Cir. 1993) (“The summary judgment inquiry thus scrutinizes the plaintiff’s case to determine
whether the plaintiff has proffered sufficient proof, in the form of admissible evidence, that could
carry the burden of proof of his claim at trial.”); Sakaria v. Trans World Airlines, 8 F.3d 164,
171 (4th Cir. 1993) (finding that the district court properly did not consider inadmissible hearsay
in an affidavit filed with motion for summary judgment). A plaintiff may not amend a complaint
through argument in a brief opposing summary judgment. Cloaninger v. McDevitt, 555 F.3d
324, 336 (4th Cir. 2009).
In the Fourth Circuit, verified complaints by pro se prisoners are to be considered as
affidavits and may, standing alone, defeat a motion for summary judgment when the allegations
contained therein are based on personal knowledge. Williams v. Griffin, 952 F.2d 820, 823 (4th
Cir. 1991). However, Joyner’s amended complaint is unverified. “[T]he law is clear that a
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plaintiff cannot rely on an unverified complaint in opposing a motion for summary judgment.”
See Huff v. Outlaw, No. 9:09-cv-00520-RBH, 2010 U.S. Dist. LEXIS 34696, at *5, 2010 WL
1433470, at *2 (D.S.C. Apr. 8, 2010).
Further, as a general rule, the non-movant must respond to a motion for summary
judgment with affidavits, or other verified evidence, rather than relying on an unverified
complaint. Alston v. Ruston, No. 9:99-244-19RB, 2000 U.S. Dist. LEXIS 11939, at *9 (D.S.C.
Mar. 9, 2000) (citing Celotex Corp., 477 U.S. at 324; Williams, 952 F.2d at 823). An affidavit
presented in opposition to a motion for summary judgment “must present evidence in
substantially the same form as if the affiant were testifying in court.” Id. (citing Evans v.
Technologies Applications & Service Co., 80 F.3d 954, 962 (4th Cir. 1996)). Thus, a party
cannot ward off summary judgment with an affidavit or verified complaint “based on rumor or
conjecture.” Id. (citing Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir. 1989);
Conaway v. Smith, 853 F.2d 789, 793 (10th Cir. 1988) (summary judgment may be appropriate
in cases where the allegations in the verified pleading are merely conclusory)). Joyner has
responded to defendants’ motion for summary judgment, but he has failed to provide any
affidavit, even his own, to contradict defendants’ version of the facts. 2 The court notes that
Joyner was given notice of the motion for summary judgment filed against him and the
opportunity to file counter-affidavits or other evidence “contradicting, explaining, or avoiding”
2

Under Federal Rule of Civil Procedure 56(e), if a plaintiff wants certain evidence considered in opposition
to a summary judgment motion, plaintiff is required to point it out to the district court. Brown v. Flowers, 196 F.
App’x 178, 182 (4th Cir. 2006). The court notes that Joyner cites to many exhibits in his response in opposition to
defendants’ motion for summary judgment. See ECF No. 70. These exhibits were attached to his motion for
preliminary injunction filed in September 2017. See ECF No. 45. The court has reviewed these exhibits and finds
that none of the exhibits genuinely dispute the material facts established in defendants’ motion for summary
judgment. In addition, although not referenced in his response in opposition to the motion for summary judgment,
the court notes that Joyner filed a declaration in support of his motion for a temporary restraining order and
preliminary injunction. See ECF No. 44. The court has reviewed the declaration and finds that it does not genuinely
dispute the material facts established in defendants’ motion for summary judgment.

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defendants’ evidence. See ECF Nos. 63 and 65. Accordingly, the court will view defendants’
facts, as established in the affidavit of Unit Manager Collins, as undisputed, but the court may
grant the motion only if defendants are entitled to summary judgment. Fed. R. Civ. P. 56(e)(2)(3).
III.
To the extent Joyner brings this action against the defendants in their official capacity for
monetary damages, such relief is not available via § 1983. Will v. Michigan Dep’t of State
Police, 491 U.S. 58 (1989).

Therefore, the court will grant defendants’ motion for summary

judgment as to Joyner’s claims for monetary damages against defendants in their official
capacities.
IV.
The Equal Protection Clause of the Fourteenth Amendment generally requires the
government to treat similarly situated people alike. City of Cleburne v. Cleburne Living Ctr.,
Inc., 473 U.S. 432, 439-41 (1985). It “does not take from the States all power of classification,
but keeps governmental decision makers from treating differently persons who are in all relevant
respects alike.” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (internal quotation marks
and citations omitted). To prove an equal protection claim, an inmate “must first demonstrate
that he has been treated differently from others with whom he is similarly situated and that the
unequal treatment was the result of intentional or purposeful discrimination” on the basis of the
plaintiff’s membership in a protected class, such as race, gender, or religion. Id. (internal
quotation marks omitted). The plaintiff must next show that the policy is not reasonably related
to legitimate penological interests. Id. at 732. This element requires the inmate to “allege facts
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sufficient to overcome the presumption of reasonableness applied to prison policies.” Id. Once
this showing is made, the burden shifts to a defendant to show the disparity is not an exaggerated
response to a particular concern. Morrison v. Garraghty, 239 F.3d 648, 654-55 (4th Cir. 2001).
Joyner alleges that other inmates who were placed in segregation around the same time as
him were all released before him. With the exception of one inmate, he does not allege that the
other inmates had the same, or even similar disciplinary convictions, and thus has not
demonstrated that they were similarly situated to him. With regard to the one inmate who had
the same disciplinary conviction, the uncontroverted evidence is that the other inmate had a
much different disciplinary record than that of Joyner, with Joyner having had at least three
convictions that year and the other inmate having only one conviction in nearly two years. As
such, the court cannot find that Joyner has demonstrated that he and the other inmate are
similarly situated.

Moreover, Joyner does not identify any intentional or purposeful

discrimination by the defendants. Accordingly, the court concludes that Joyner has not shown a
violation of his right to equal protection and, therefore, the court will grant defendants’ motion
for summary judgment as to this claim.
V.
It is well settled that state officials may not retaliate against an inmate for exercising his
constitutional rights. See Am. Civ. Liberties Union v. Wicomico County, 999 F.2d 780, 785 (4th
Cir. 1993). In order to sustain a cognizable retaliation claim under § 1983, an inmate must point
to specific facts supporting his claim of retaliation. White v. White, 886 F.2d 271 (4th Cir.
1989). A First Amendment retaliation claim under § 1983 consists of three elements: (1) the
plaintiff engaged in constitutionally protected First Amendment activity; (2) the defendant took
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an action that adversely affected that protected activity; and (3) there was a causal relationship
between the plaintiff’s protected activity and the defendant’s conduct. Martin v. Duffy, 858 F.3d
239, 249 (4th Cir. 2017).
Prisoners have a “First Amendment right to be free from retaliation for filing a
grievance” under the prison’s established grievance procedure. Booker v. S.C. Dep’t of Corr.,
855 F.3d 533, 541 (4th Cir. 2017). “[F]or purposes of a First Amendment retaliation claim under
§ 1983, a plaintiff suffers adverse action if the defendant’s allegedly retaliatory conduct would
likely deter a person of ordinary firmness from the exercise of First Amendment rights.”
Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005).
Joyner alleges in his unverified amended complaint that when he asked why all other
inmates except him were being released back to the VHU, defendant Unit Manager Collins told
him that he would be released last because he was on the only inmate “complaining.” Joyner
argues that he was held in the SHU as a “direct act of retaliation” in response to his “continuous
complaints of unlawful treatment.” However, the uncontroverted evidence before the court is an
affidavit from Collins affirming that he, in fact, did not tell Joyner that he was being held in
segregation longer because of his complaints and grievances. Further, Collins avers that the ICA
decided to continue Joyner’s assignment to the SHU in order for him to demonstrate stability in
his behavior, after his third disciplinary conviction in a year. Based on the foregoing, the court
cannot find that Joyner has shown that he was retaliated against for exercising a First
Amendment right. 3 Accordingly, the court will grant defendants’ motion for summary judgment
as to this claim.
3

The court also notes that Joyner alleges no personal involvement of defendants Fleming, Clarke, Ponton,
Combs, Anderson, Stapleton, Welch, Ravizee, Cope, Gilbert, Franks, Sgt. Collins, Sigman, Turner, Addington,
Robinson, Locust, and King.

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VI.
Upon review of the docket, it appears that although he is named in Joyner’s amended
complaint, defendant Unit Manager Jimmy Collins was never added to the docket or notified of
this action. Accordingly, the court will direct the Clerk to add Jimmy Collins as a defendant and
notify him of this action.
VII.
For the foregoing reasons, the court grants defendants’ motion for summary judgment
and adds Unit Manager Jimmy Collins as a defendant.
18th
ENTER: This ____ day of March, 2019.

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