United States District Court, W.D. Virginia, Roanoke Division
HON. NORMAN K. MOON UNITED STATES DISTRICT JUDGE
Jervod Simmons, a Virginia inmate proceeding pro se, filed a complaint pursuant to 42 U.S.C. § 1983 alleging a violation of his Eighth Amendment rights. Dkt. No. 22. Simmons’ Amended Complaint named ten defendants, including Lieutenant David Greer (“Lt. Greer”). Id. Pursuant to a settlement agreement, Simmons and nine of the defendants filed a joint motion to dismiss. Dkt. No. 39. Lt. Greer, who is now retired, was not a party to either the settlement agreement or the joint motion to dismiss. The terms of the settlement were approved and the joint motion to dismiss was granted in an order dated March 13, 2015. Dkt. No. 46. Consequently, the only remaining defendant in this case is Lt. Greer, who has filed both a motion to dismiss and a motion for summary judgment. Dkt. Nos. 59, 60, 61. Having considered the pleadings and the applicable law in this case, I conclude that Lt. Greer’s motion for summary judgment should be granted. As Lt. Greer is the last remaining defendant, this award of summary judgment terminates the case, and it will be dismissed with prejudice and stricken from the active docket of this court.
I. FACTUAL BACKGROUND
Simmons’ complaint arises out of a confrontation he had with prison officials, first at his cell and then later on the way to the infirmary. In his complaint, Simmons alleges that on the morning of September 10, 2013, at Wallens Ridge State Prison, Correctional Officers Roberts and Nunley arrived at Simmons’ cell to transport him to his outdoor recreational time. Dkt. No. 22. Simmons claims that while at his cell, Nunley said, “hurry up boy, ” which offended Simmons. Id. Simmons told Nunley not to disrespect him, to which Nunley responded “this boy has a big mouth.” Id. Nunley then placed handcuffs and shackles on Simmons to prepare him for transport. Id. Nunley “forcefully jerked” Simmons to his feet and Simmons laughed at him. Id. Officers Roberts and Nunley transported Simmons a few steps outside his cell before determining that he was being too disruptive and returning him to his cell. Id. At this point an altercation occurred.
Simmons alleges that Nunley pushed him into his cell and that Nunley and Roberts then “slammed” Simmons to the floor out of view of the pod camera. Id. Nunley then began punching Simmons with closed fists in the head and face. Id. At this time, Roberts stood in the cell door and called for back-up. Simmons alleges that “once the other defendants arrived they proceeded to hit and kick the plaintiff as well. The plaintiff was at no time physically resisting any defendant at anytime while in full restraints (handcuffs and shackles) while being held down by unknown defendants in the cell.” Id. Simmons claims that Nunley “busted both the plaintiffs [sic] lips, inside bottom lip, nose, placed a bruise under [his] left eye and a small cut on [his] right cheek.” Id.
During the altercation, Simmons states that Defendant Stanley “fondled [his] penis then started to knee [him] in [his] penis” and kick him. Id. Defendant Smith also yelled at Simmons and then kicked him repeatedly in the head. Defendant Cochrane stood at the cell door holding a video recorder. Once the altercation ended, Defendant Kinser entered the cell and instructed the other officers to clean up the blood on the floor and wall. Id. The defendants then transported Simmons to the infirmary. During this trip, Simmons complained about the tightness of his shackles and handcuffs.
At some point during the walk to the infirmary, the group encountered Lt. Greer, who “instructed the defendants holding [Simmons] to take [him] to the ground even though [he] never resisted.” Id. The medical staff then treated Simmons for his injuries and took photographs of his face. Simmons made no allegations as to the manner in which he supposedly was taken to the ground at Lt. Greer’s direction or whether he suffered any additional injury from this action.
In support of his motion for summary judgment, Lt. Greer filed a declaration in which he states he was not present at the time of Simmons’ initial altercation with the other officers at Simmons’ cell. Dkt. No. 60-1. Lt. Greer states that he responded to the medical building when he heard about the incident and encountered Simmons “screaming, yelling, thrashing and being non-compliant as he was being escorted” to the infirmary. Id. As a supervisor, Lt. Greer instructed the officers “to gain control of the Plaintiff and place him on the ground due to the Plaintiff’s behavior and for the safety of everyone.” Id. Lt. Greer spoke to Simmons and the situation de-escalated without any physical contact between Lt. Greer and Simmons. Id.
In response to Lt. Greer’s declaration, Simmons submitted his own affidavit. Dkt. No. 65. In it, Simmons does not directly refute Lt. Greer’s version of the facts. Instead, Simmons makes passive statements like “[I] have seen no evidence that Defendant Greer did not intentionally interject himself against plaintiff for the sole purpose to cause injury, damage, pain and suffering by any means necessary exists, and I believe no such evidence exists” and “[I] have seen no evidence that when Defendant Greer ordered his officers to force the plaintiff to the ground [sic] was for the purpose to [sic] bring the plaintiff in compliance exists and I believe no such evidence exists.” Id.
After the incident, Simmons arrived at the infirmary where two nurses examined his injuries. The prison staff took photographs of Simmons’ face, cleaned him up, and returned him to a different cell. Simmons utilized the inmate grievance procedures to complain about the officers’ treatment and there are no issues regarding exhaustion of administrative remedies.
II. STANDARD OF REVIEW
An award of summary judgment is appropriate only “if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “As to materiality ... [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” 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 nonmoving party.” Id. 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). Once the moving party meets its initial burden, the nonmoving party may not rely upon mere allegations or denials contained in its pleadings but must come forward with some form of evidentiary material allowed by Rule 56 demonstrating the existence of a genuine issue of material fact requiring a trial. Liberty Lobby, Inc., 477 U.S. at 248-49; Celotex, 477 U.S. at 324.
“In reviewing the evidence, the court must draw all reasonable inferences in favor of the nonmoving party and may not make credibility determinations or weigh the evidence.” Williams v. Staples, Inc., 372 F.3d 662, 667 (4th Cir. 2004); see also Gray v. Spillman, 925 F.2d 90, 95 (4th Cir. 1991) (at the summary judgment stage, “[i]t is not [the court’s] job to weigh the evidence, to count how many affidavits favor the plaintiff and how many oppose him, or to disregard stories that seem hard to believe”). Detailed, factual allegations in a verified, pro se complaint may be sufficient to withstand a motion for summary judgment with supporting affidavits containing a conflicting version of the facts. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (“[A] verified complaint is the equivalent of an opposing affidavit for summary judgment purposes, when the allegations contained therein are based on personal knowledge.”) (citing Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir. 1979)). However, the evidence relied upon 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 ...