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McCreary v. Governor of Commonwealth of Virginia

United States District Court, E.D. Virginia, Richmond Division

August 19, 2014



HENRY E. HUDSON, District Judge.

Denise McCreary, a federal inmate proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. ยง 1983.[1] McCreary alleges that during her incarceration at the Northern Neck Regional Jail ("NNRJ") Defendants[2] subjected her to cruel and unusual punishment and violated her due process rights through use of a restraint chair, and subsequently denied her adequate medical care. The matter is before the Court on the Motion for Summary Judgment filed by Hull, Turner, Neale, Reese, and Hickey ("Defendants"). Defendants provided McCreary with the appropriate Roseboro [3] notice for their Motion for Summary Judgment. (ECF No. 27.) McCreary has responded. (ECF No. 49.) The matter is ripe for disposition. For the reasons stated below, the Court will grant Defendants' Motion for Summary Judgment.


McCreary's claims stem from the use of a restraint chair to confine her after she attempted to commit suicide while in a booking cell and subsequently became combative with NNRJ staff. McCreary's claims against Defendants Hull, Turner, Neale, Dr. Reese, and Hickey are best summarized as follows:[4]

Claim One Defendants Hull, Turner, Neale, Reese, and Hickey violated McCreary's Eighth Amendment[5] rights when they "acquiesced or directly participated in [Sergeant] Russell's unlawful and sadistic use of the restraint chair[.]" (Compl. 11.)[6]
Claim Two Defendants Hull, Turner, Neale, Reese, and Hickey violated McCreary's due process[7] rights "because they knew or should have known Russell's propensity to violence but retained and promoted him." ( Id. at 12.)
Claim Three Defendants Reese and Neale denied McCreary adequate medical care following her confinement in the restraint chair. ( Id. )[8]
Claim Four Defendants Hull, Hickey, and Turner failed to reasonably investigate the use of the restraint chair or protect McCreary from retaliation in violation of due process.


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 of informing the Court of the basis for the motion and identifying 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), (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 (quoting Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448 (1872)). Nor can a nonmoving party "create a genuine dispute of fact through mere speculation.'" Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008) (quoting Beale v. Hardy, 769 F.3d 213, 214 (4th Cir. 1985)). Accordingly, "[t]he nonmovant can show that a dispute is genuine only if it provides sufficient evidence so that a reasonable jury could return a verdict for the nonmoving party.'" Wiggins v. DaVita Tidewater LLC, 451 F.Supp.2d 789, 796 (ED. Va. 2006) (quoting Anderson, 477 U.S. at 248).

In support of their Motion for Summary Judgment, Defendants Hull, Turner, Neale, Reese, and Hickey submitted their respective affidavits (Mem. Supp. Mot. Summ. J. Ex. A ("Hull Aff., " ECF No. 28-1), id. Ex. C ("Hickey Aff., " ECF No. 28-3), id. Ex. E ("Turner Aff., " ECF No. 28-5), id. Ex. F ("Neale Aff., " ECF No. 28-6), id. Ex. H ("Reese Aff., " ECF No. 28-8)), records pertaining to McCreary's attempt to hang herself and use of the restraint chair ( id. Ex. B, ECF No. 28-2), the NNRJ Use of Restraints policy ( id. Ex. D, ECF No. 28-4), and copies of McCreary's pertinent medical records ( id. Ex. G (ECF No. 28-7)).[9]

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. McCreary filed a Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment that failed to comply with Rule 56(B) of the Local Civil Rules for the United States District Court for the Eastern District of Virginia ("Local Rule 56(B)"). (ECF Nos. 41, 44.) Accordingly, by Memorandum Order entered May 22, 2014, the Court warned McCreary that she must file an affidavit as required by Federal Rule of Civil Procedure 56(c)(4) ("Rule 56") and a brief that complies with Local Rule 56(B). (ECF No. 47, at 1-2.) The Court also instructed McCreary that it would not consider McCreary's Memoranda of Law in Opposition and her sworn Complaint as admissible evidence. (ECF No. 47, at 2.)[10] McCreary has responded with an affidavit (ECF No. 49), that is comprised almost entirely of allegations, legal conclusions, and matters upon which she has no personal knowledge, and fails to comply with Rule 56. McCreary also attached an unsworn document entitled "Argument." (ECF No. 49, at 5-17.) McCreary's "Argument" section fails to constitute admissible evidence because she failed to swear to the contents of this document under penalty of perjury. See United States v. White, 366 F.3d 291, 300 (4th Cir. 2004).

No need exists to catalog the entirety of inadmissible evidence previously submitted by McCreary because she fails to cite the Court to any evidence, such as her Complaint, that she wishes the Court to consider in opposition to the Motion for Summary Judgment. See Fed.R.Civ.P. 56(c)(3) (emphasizing that "[t]he court need consider only the cited materials" in deciding a motion for 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)) ("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."). McCreary's failure to submit admissible evidence permits the Court to rely solely on the submissions of Defendants in deciding the Motion for Summary Judgment.[11]

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 McCreary.


A. Facts Pertaining to the Use of the ...

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