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Perry v. Jones

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

May 9, 2016

RALPH E. PERRY, Plaintiff,
JOYCE JONES, et al., Defendants.


James R. Spencer, Senior U.S. District Judge.

Ralph E. Perry, a former Virginia inmate proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983 action.[1] By Memorandum Opinion and Order entered on November 1, 2, 2015, the Court dismissed without prejudice all claims against Defendant Joyce Jones pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, and granted the Motion to Dismiss filed by Defendant Ken Peare, a kitchen supervisor at Western Tidewater Regional Jail ("WTRJ"), with respect to Perry's Ninth Amendment[2] claim. Perry v. Jones, No. 3:14CV71, 2015 WL 7016519, at * 1 (E.D. Va. Nov. 12, 2015). What remains is Perry's claim that Peare violated his Eighth Amendment[3] rights by deliberately failing to provide Perry with a diet consistent with his diabetic needs. (Part. Compl. 1-3.)[4] The matter is now before the Court on Peare's Motion for Summary Judgment (ECF No. 56), as well as Perry's Motion for Summary Judgment (ECF No. 61). This matter is ripe for disposition. For the reasons stated below, Peare's Motion for Summary Judgment will be GRANTED, and Perry's Motion for Summary Judgment will be DENIED.


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). It is the responsibility of the party seeking summary judgment 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 (quoting Improvement co. v. Munson, 81 U.S. (14 Wall.) 442, 448 (1872)).

In support of his Motion for Summary Judgment, Peare has submitted his own affidavit. (Def.'s Mot. Summ. J. Ex. 1 ("Peare Aff."), ECF No. 56-1).

At this stage, the Court is tasked with assessing whether Plaintiff "has proffered sufficient proof, in the form of admissible evidence, that could carry the burden of proof of his claim at trial." Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1316 (4th Cir. 1993) (emphasis added). Because Perry failed to swear to the contents of his Particularized Complaint under penalty of perjury, the Particularized Complaint fails to constitute admissible evidence. See United States v. White, 366 F.3d 291, 300 (4th Cir. 2004).

Perry attached to his Motion for Summary Judgment a copy of a medical record from a June 27, 2013 visit to the gastroenterology unit at MCV Hospital in Richmond, Virginia, and a copy of a June 10, 2013, letter from Shavon C. Jones, M.D. (ECF No. 61-1, at 1-4.) However, "[i]t is well established that unsworn, unauthenticated documents cannot be considered on a motion for summary judgment." Orsi v. Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993) (citation omitted). "For documents to be considered, they 'must be authenticated by and attached to an affidavit' that meets the strictures of Rule 56." Campbell v. Verizon Va., Inc., 812 F.Supp.2d 748, 750 (E.D. Va. 2011) (quoting Orsi, 999 F.2d at 92). Perry's submissions run afoul of these rules. Accordingly, the Court will not consider these medical records in connection with the Motions for Summary Judgment.

Perry also has submitted an article titled "Diabetes: Type 2" from RelayHealth (ECF No. 64-1, at 1-5), as well as a copy of the front page of a brochure titled "Insulin Therapy: Managing Your Diabetes" from Harvard Medical School (id. at 6).[5] Perry contends that these documents constitute "a proper affidavit." (ECF No. 66, at 2.) However, these documents constitute hearsay. See Hogge v. Stephens, No. 3:09CV582, 2011 WL 2161100, at *6 (E.D. Va. June 1, 2011) ("Plaintiff submits several medical articles....However, these documents are not authenticated and constitute hearsay." (quoting Cornelius v. Wilkinson, No. l:05-cv-00545, 2006 WL 2404136, at *5 (N.D. Ohio Aug. 18, 2006))). While the Federal Rules of Evidence do provide a hearsay exception for learned treatises, see Fed. R. Evid. 803(18), such documents are only admissible if they are "'called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination.'" Cornelius, 2006 WL 2404136, at *5 (quoting Fed.R.Evid. 803(18)); see Wik v. Shelton, No. CV 07-1726-HA, 2009 WL 2163529, at *1 (D. Or. July 17, 2009) (disregarding the submission of a medical publication meant to establish a medical standard of care because the document was not relied on by an expert witness). Because "[Perry] fails to present these medical articles in conjunction with expert testimony, " they "are inadmissible and may not support [Perry's] allegations." Cornelius, 2006 WL 2404136, at *5.

Perry's complete failure to present any admissible evidence to counter Peare's Motion for Summary Judgment and to support his own Motion for Summary Judgment permits the Court to rely solely on Peare's Affidavit in deciding the Motions for Summary Judgment. See Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) ('"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.'" (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 & n.7 (5th Cir. 1992))). Accordingly, the following facts are established for the Motions for Summary Judgment.


Peare is employed by Aramark Correctional Services, LLC, as a kitchen supervisor at WTRJ. (Peare Aff. ¶ 1.) He was working in that capacity while Perry was incarcerated at WTRJ. (Id.) As a kitchen supervisor, Peare is "aware of the processes involved in the creation of diets for inmates and ha[s] personal knowledge of the diet plan prepared for [Perry]." (Id. ¶ 2.) Peare "ha[s] no authority or discretion to alter any inmate's meal plan without an order from WTRJ's medical staff." (Id. ¶ 10.)

While Perry was incarcerated at WTRJ, medical staff ordered that Perry receive 2, 800 calorie diabetic meals. (Id. ¶¶ 4, 6.) Such meals "were planned in accordance with the nutritional guidelines promulgated by the American Medical Association (' AMA'), the American Diabetic Association ('ADA'), the American Correctional Association ('ACA'), and the United States Department of Agriculture ('USDA')." (Id. ¶ 5 (some internal quotation marks omitted).) All of Perry's meals "were first inspected by WTRJ's medical staff to ensure that the meals were appropriate, safe, and adequately nutritious." (Id. ¶ 7.) All of Perry's meals "were prepared in accordance with the WTRJ's medical staff directives from the approved diet." (Id. ¶ 8.) Moreover, "WTRJ's medical staff ordered [Peare] to serve [Perry] with 2800 calorie diabetic meals, and never authorized [Peare] to alter [Perry's] meal plan in any way." (Id. ¶ 11.)


To survive a motion for summary judgment on his Eighth Amendment claim, Perry must demonstrate that Peare acted with deliberate indifference to his serious medical needs. See Brown v. Harris, 240 F.3d 383, 388 (4th Cir. 2001). A medical need is "serious" if it "'has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.'" Iko ...

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