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Kelly v. Jamaludeen

United States District Court, Fourth Circuit

December 16, 2013

ANDREW KELLY, Plaintiff,
v.
ABDUL JAMALUDEEN, et al., Defendants.

MEMORANDUM OPINION

ROBERT E. PAYNE, Senior District Judge.

Andrew Kelly, a Virginia prisoner proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983[1] complaint. The matter is before the Court on Sheriff Kenneth W. Stolle's Motion to Dismiss (ECF No. 15) and Dr'. Abdul Jamaludeen's and Nurse Donald Sadler's Motion for Summary Judgment. (ECF No. 28.) Defendants provided Kelly with appropriate Roseboro[2] notice. (ECF Nos. 17, 27.) Kelly has not responded. For the reasons set forth below, the Court will grant the Motion to Dismiss and the Motion for Summary Judgment.

I. KELLY'S COMPLAINT

At all times relevant to the action, Kelly was incarcerated in the Virginia Beach Correctional Center ("VBCC"). (Compl. 4.) Kelly alleges:

Soon as I got in this institution a (cyst) formed on my wrist, or at least we think it's a (cyst). Doctor said he doesn't even know what it is. Doctor (Jamaludeen experimented several times by draining it to try to get rid of it. 1st time drained a jelly substance came out, Doctor said he never seen anything like it before, but he would not even look at it under microscope or send to lab or anything. (2nd time) It came right back [a] week [and] 1/2 later. Doctor persisted to drain again, which he did (same thing again). I came back [a] week [and] 1/2 later again while in mean time he keep telling me I'm on (outside medical waiting list), which usually... takes a few months (at most). I've been waiting almost 5 months now. So 3rd time it came back, Doctor came to drain again (w/ same nurses as usual) except 1 more by name (of Sadler) [and] Doctor wanted him to drain it. didn't feel comfortable, (Sadler) said he never done it before [and] I was in a lot of pain so I had no choice, I needed help so Doctor (Jamaludeen) instructed (Sadler) to drain[ ] it, then he did something wrong, like he hit a nerve, instant pain (bad). I told him to stop, he just said "hold on" but it hurt too bad. I just wanted him to stop. He didn't, just continued, then took out needle [and) stuck it in a new spot. It hurt bad! I tried to take my hand back but deputies held me so he could finish even though I told him to stop because of pain, (plus) Doctor already said he didn't know what it was. If it didn't work 1st, 2x, why keep experimenting on me? I should have [and] still need to see a physician who know[s] what they are working on. This was a form of malpractice and cruel punishment that has caused severe damage! My hand turned yellow [and] black from bruising. I have nerve damage, problem using my finger [and] right hand, it has taken me over a week to write this! I need medical attention and I am being denied. ( Id. at 5 (capitalization, spelling, and punctuation corrected).) Kelly demands monetary damages. ( Id. at 6.) The Court construes Kelly to raise the following Eighth Amendment[3] claims for relief:

Claim One: Dr. Jamaludeen acted with deliberate indifference to Kelly's serious medical needs by providing ineffective treatment for Kelly's cyst.

Claim Two: Dr. Jamaludeen acted with deliberate indifference to Kelly's serious medical needs by failing to promptly refer Kelly to a specialist.

Claim Three: Nurse Sadler acted with deliberate indifference to Kelly's serious medical needs by subjecting Kelly to severe pain while treating the cyst.

II. MOTION TO DISMISS

In order to state a viable claim under 42 U.S.C. § 1983, a plaintiff must allege that a person acting under color of state law deprived him or her of a constitutional right or of a right conferred by a law of the United States. See Dowe v. Total Action Against Poverty in Roanoke Valley , 145 F.3d 653, 658 (4th Cir. 1998) (citing 42 U.S.C. § 1983). "[A] plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal , 556 U.S. 662, 676 (2009). Kelly fails to mention Stolle in the body of the Complaint, much less explain Stolle's personal involvement in the events for which Kelly seeks relief. "Where a complaint alleges no specific act or conduct on the part of the defendant and the complaint is silent as to the defendant except for his name appearing in the caption, the complaint is properly dismissed, even under the liberal construction to be given pro se complaints." Potter v. Clark , 497 F.2d 1206, 1207 (7th Cir. 1974) (citing Brzozowski v. Randall , 281 F.Supp. 306, 312 (E.D. Pa. 1968)). Accordingly, Stolle's Motion to Dismiss (ECF No. 15) will be granted.

III. STANDARD FOR SUMMARY JUDGMENT

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 , 477 U.S. 317, 323 (1986). "[W]here 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 , 477 U.S. at 251 (citing Improvement 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 , 19 F.3d 1527, 1537 (5th Cir. 1994) (quoting Skotak 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 his Motion for Summary Judgment, Dr. Jamaludeen and Nurse Sadler submit the following pertinent evidence: declarations from Dr. Jamaludeen (Mem. Supp. Mot. Summ. J. Ex. 1 ("Jamaludeen Decl."), ECF No. 29-1) and Nurse Sadler (id. Ex. 2 ("Sadler Decl."), [4] ECF No. 29-2), and Kelly's medical records (Jamaludeen Decl. Ex. A, ECF No. 29-1).

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. Kelly did not respond to Jamaludeen's or Sadler's Motion for Summary Judgment. Additionally, Kelly's Complaint fails to constitute admissible evidence because Kelly did not swear to the contents of his ...


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