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Awe v. Clarke

United States District Court, W.D. Virginia, Roanoke Division

March 11, 2014

HAROLD CLARKE, et al., Defendants.


JACKSON L. KISER, Senior District Judge.

Kenneth Valentine Awe, a Virginia inmate proceeding pro se, commenced a civil rights action, pursuant to 42 U.S.C. ยง 1983. Plaintiff named as defendants Harold Clarke, the Director of the Virginia Department of Corrections ("VDOC"); Randal Mathena, Warden of the Red Onion State Prison ("ROSP"); and Dr. Miller, a private physician serving ROSP inmates. I dismissed the claims against Clarke and Mathena and terminated them as defendants by a prior Memorandum Opinion and Order, and presently before me is Dr. Miller's motion for summary judgment. Plaintiff states that he cannot respond to Dr. Miller's motion without photocopies of his medical record and asks me to order the VDOC to give him copies of unspecified medical records. After reviewing the record, I find Plaintiff fails to adequately explain why he cannot oppose Dr. Miller's motion for summary judgment and grant Dr. Miller's motion.


Plaintiff simply alleges in the verified Complaint:

[On] [January 28, 2013, ] during intake at [ROSP], the ROSP security and medical state employees (acting under color of state law) took this Plaintiff's eye medications and eyeglasses leaving this Plaintiff who[]se known eye condition is documented in the VDOC medical records without needed eye medications, causing this Plaintiff unbearable eye pain and loss of eyesight. The ROSP M.D. Dr. Miller knowingly with medical knowledge refuses to provide Plaintiff with needed eye medication to rel[i]e[]ve - prevent eye pain, loss of eyesight, [and] damage to eyes. [Dr. Miller] knowingly causes the Plaintiff eye pain and injury for over eight weeks on this date of March 25[, ] 2013 inflicting cruel and unusual punishment with deliberate indifference....

Compl. 3.

In response, Dr. Miller avers the following facts. Dr. Miller performed the initial medical evaluation of Plaintiff when Plaintiff arrived at ROSP. Plaintiff requested artificial tear drops for his dry eyes, and Dr. Miller confirmed via Plaintiffs medical record that a prior physician had prescribed artificial tear drops in September 2012 because Plaintiff experienced mild dry eyes. Dr. Miller referred Plaintiff to an optometrist, Dr. Repko, who normally visited ROSP twice monthly.[1] Although Plaintiff saw Dr. Miller at unrelated medical appointments on February 28 and March 7 and 14, 2013, Plaintiff did not mention any issue with his eyes. At a medical appointment on March 21, 2013, Plaintiff submitted a sick call request to see the optometrist for "painful eyes." Plaintiff explained to a nurse that his eyes were cloudy and painful, and the nurse referred Plaintiff to Dr. Repko like Dr. Miller had done in January.

On April 3, 2013, Plaintiff saw Dr. Repko, who gave him a prescription for artificial tears and "Lacri-lube ophthalmic ointment." Plaintiff saw Dr. Repko again on May 15, 2013, and requested more artificial tears because the first prescription did not last thirty days. Dr. Repko wrote a new order to allow Plaintiff to receive more than one bottle of artificial tear drops per month. Plaintiff did not complain about his eyes at his next medical appointment with Dr. Miller on June 25, 2013, which was about a different medical issue.


A party is entitled to summary judgment if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact. Fed.R.Civ.P. 56(a); see Williams v. Griffin , 952 F.2d 820, 823 (4th Cir. 1991) (recognizing a party is entitled to summary judgment if the record as a whole could not lead a rational trier of fact to find in favor of the non-movant). "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). The moving party has the burden of showing - "that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett , 477 U.S. 317, 325 (1986). If the movant satisfies this burden, then the non-movant must set forth specific, admissible facts that demonstrate the existence of a genuine issue of fact for trial. Id. at 322-23. The nonmoving party "may not rest upon the mere allegations or denials of his pleading, but... must set forth specific facts showing there is a genuine issue for trial." Anderson , 477 U.S. at 248. Therefore, "[m]ere unsupported speculation... is not enough to defeat a summary judgment motion." Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc. , 53 F.3d 55, 62 (4th Cir. 1995).


In response to Dr. Miller's motion for summary judgment, Plaintiff states that he needs free photocopies from agents of the VDOC, which "can prove defendant is a bare faced liar who acted deliberately indifferent to Plaintiff's serious medical need." Pl.'s Resp. 1. I construe the statement as expressing that he cannot present facts essential to justify opposition, pursuant to Federal Rule of Civil Procedure 56(d). See, e.g., Evans v. Technologies Applications & Serv. Co. , 80 F.3d 954, 961 (4th Cir. 1996). Rule 56(d) permits a district court to defer or deny the motion for summary judgment, permit discovery, or issue any other appropriate order when a party opposing a motion for summary judgment "shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition[.]" Plaintiffs statement, which is not an averment, wholly fails to specify reasons how discovery is necessary in order to contradict Dr. Miller's averments. Plaintiff does not identify any information that he believes would be adduced by discovery and simply demands photocopies from a nonparty. Accordingly, Plaintiff's response is insufficient to properly invoke Rule 56(d).[2]


I grant Dr. Miller's motion for summary judgment because Plaintiff fails to establish Dr. Miller's deliberate indifference. See, e.g., Estelle v. Gamble , 429 U.S. 97, 104 (1976). Deliberate indifference requires a state actor to have been personally aware of facts indicating a substantial risk of serious harm, and the actor must have actually recognized the existence of such a risk. Farmer v. Brennan , 511 U.S. 825, 838 (1994). "Deliberate indifference may be demonstrated by either actual intent or reckless disregard." Miltier v. Beorn , 896 F.2d 848, 851 (4th Cir. 1990); see Parrish v. Cleveland , 372 F.3d 294, 303 (4th Cir. 2004) ("[T]he evidence must show that the official in question subjectively recognized that his actions were inappropriate in light of that risk."). "A defendant acts recklessly by disregarding a substantial risk of danger that is either known to the defendant or which would be apparent to a reasonable person in the defendant's position." ...

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