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White v. Levin

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

March 3, 2015

DARRYLA. WHITE, Plaintiff,
v.
LEONARD LEVIN, et al., Defendants.

MEMORANDUM OPINION

JAMES R. SPENCER, Senior District Judge.

Plaintiff, Darryl A. White, a Virginia state prisoner with a history of back problems, brings this 42 U.S.C. § 1983 action. The matter is before the Court on the Motion for Summary Judgment filed by Dr. Leonard Levin, Debbra Kirksey, Jamie Boothe, and Edith Dunn. White has responded. For the reasons set forth below, the Court will GRANT the Motion for Summary Judgment.

I. CLAIMS REMAINING BEFORE THE COURT

The Court previously dismissed the majority of Mr. White's claims. See White v. Levin, No. 3:13CV23, 2014 WL 1050922, at *10 (E.D. Va. Mar. 17, 2014); White v. Levin, No. 3:13CV23, 2014 WL 1056700, at *5 (E.D. Va. Mar. 17, 2014). Mr. White moves the Court to reconsider the dismissal of his claims. (ECF No. 73.) The power to revisit an order prior to the entry of final judgment "is committed to the discretion of the district court." Am. Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 515 (4th Cir. 2003) (citing Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 (1983)). Reconsideration of an interlocutory order is appropriate when, inter alia, "the prior decision was clearly erroneous and would work manifest injustice.'" Id. (quoting Sejman v. Warner-Lambert Co., 845 F.2d 66, 69 (4th Cir. 1988)). Mr. White fails to demonstrate any error in the Court's dismissal of his claims or advance any other compelling reason for revisiting the dismissal of his claims. Accordingly, Mr. White's Request for Reconsideration of Dismissals (ECF No. 73) will be DENIED.

The following claims remain before the Court:[1]

Claim 1 Mr. White had severe back problems from January of 2010 to June 8, 2010. Defendants violated Mr. White's rights by failing to provide appropriate care for Mr. White's back problems.
(a)(ii) Dr. Levin violated Mr. White's rights under the Americans with Disabilities Act[2] ("ADA") by failing to utilize appropriate X-ray equipment for a large person, such as Mr. White.
Claim 2 (a) Nurse Kirksey violated Mr. White's rights under the Eighth Amendment when she failed to provide Mr. White with appropriate medical care on March 19, 2010.
Claim 3 (a) Nurse Dunn violated Mr. White's rights under the Eighth Amendment[3] when she placed a bag containing ammonium carbonate over Mr. White's head on March 20, 2010.
(b) Nurse Boothe violated Mr. White's rights under the Eighth Amendment when she failed to intervene and stop Nurse Dunn from holding the bag containing ammonium carbonate over Mr. White's head.

II. SUMMARY JUDGMENT

A. 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 their Motion for Summary, Defendants have submitted, inter alia: a declaration from Dr. Levin (Mem. Supp. Mot. Summ. J. Ex. 1 ("Levin Decl."), ECF No. 71-1); copies of Mr. White's medical records ( id Ex. A-D); an affidavit from Kenneth Forrest, an institutional investigator at Haynesville Correctional Center ("HCC") (Mem. Supp. Mot. Summ. J. Ex. 6 ("Forrest Aff."), ECF No. 71-6); institutional disciplinary reports pertaining to Mr. White ( id. Exs. A-B); the declaration of Nurse Kirksey (Mem. Supp. Mot. Summ. J. Ex. 7 ("Kirksey Decl."), ECF No. 71-7); the affidavit of Rose Brown (Mem. Supp. Mot. Summ. J. Ex. 11 ("Brown Aff."), ECF No. 71-11); and the regulations pertaining to the grievance procedure for the Virginia Department of Corrections ( id. Ex. A ("Operating Procedure § 866.1, " ECF No. 71-11, at 5-16 (as paginated by CM/ECF))). Additionally, Defendants rely upon the previously submitted affidavit of Rose Brown (ECF No. 12-1), and the grievance material attached thereto (ECF No. 12-2).[4]

Mr. White filed three responses. (ECF Nos. 76, 77, 78.)[5] Mr. White attached to his responses, among other things, copies of some grievance material. In his responses, Mr. White repeatedly states, "These are my sworn statements of fact that are made on my personal knowledge and I am competent to testify on the matters stated herein." ( See, e.g., ECF No. 76, at 1; ECF No. 76-3, at 2.) Such statements fail to transform the allegations therein into admissible evidence.[6] Price v. Rochford, 947 F.2d 829, 832 (7th Cir. 1991) (observing that a "form of verification [that] avoids the possibility of perjury (or perhaps because it avoids the possibility of perjury)... is insufficient for the purposes of opposing a motion for summary judgment"). Additionally, Mr. White filed a Motion Requesting Ruling Regarding Exhaustion of Administrative Remedies (ECF No. 82) to which he attached additional grievance material.

For the reasons set forth below, the Court will: dismiss Claim 1(a)(ii) against Dr. Levin because Mr. White failed to exhaust his administrative remedies for any ADA claim prior to filing this action; dismiss Claim 2(a) as lacking in merit; and dismiss Claims 3(a) and 3(b) as barred by the statute of limitations. In light of the varying legal bases upon which the Court grants summary judgment, the Court recites the pertinent facts established for summary judgment in conjunction with the analysis of each claim.

B. Mr. White Failed to Exhaust His Administrative Remedies for Claim 1(a)(ii)

In Claim 1(a)(ii), Mr. White asserts that Dr. Levin violated Mr. White's rights under the ADA by failing to provide appropriate medical care for Mr. White's back problems. The pertinent statute provides: "No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983] or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Generally, in order to satisfy the exhaustion requirement, the inmate must file a grievance raising the claim and pursue the grievance through all available levels of appeal. See Woodford v. Ngo, 548 U.S. 81, 90 (2006).

This Court has previously noted that "White has submitted a number of grievances during his incarceration. White, however, has not submitted and exhausted any grievance complaining that he was discriminated against because of his large size, much less a grievance that mentions the ADA." White v. Levin, No. 3:13CV23, 2014 WL 1056700, at *4 (E.D. Va. Mar. 17, 2014) ...


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