United States District Court, E.D. Virginia, Richmond Division
TAMMY Y. ASKEW, Plaintiff,
H. VILLANUEVA, et al., Defendants.
R. Spencer Senior U.S. District Judge.
Y. Askew, a Virginia inmate proceeding pro se and
in forma pauperis, filed this 42 U.S.C. § 1983
action. In her Complaint, Askew states:
On 1-28-15, 1 was assaulted by two inmates in HU2-1-A at the
Hampton Roads Regional Jail [("HRRJ")]. According
to the Housing Unit I was housed in there was not suppose[d]
to be [any] violent offenders. And that unit was to only
house pregnant non-violent offenders and trustees. Defendant
#5 Vanessa Benson was not a trustee and was not pregnant.
Therefore, she should not have been housed in that particular
unit. I was assaulted by defendant #5 Vanessa Benson and also
Latisha Harris. Defendant 1 Lt. H. Villanueva & Defendant
3 Capt. Cowan are head of security it took their approval to
house a violent offender in that unit leaving me and others
at risk that caused the harm on me. Defendant #4 was the
classification officer that assigned Vanessa Benson to a
non-violent housing unit. Defendant #2 Major Hatchett is
chief of Operations that all decisions to where all inmates
are housed. I know if all the defendants above would have
followed the housing guidelines I would not have been
assaulted in that wing by inmate Vanessa Benson. I feel they
all caused me to be harmed.
(Compl. 5, ECF No. I.) Askew also contends that prior to the
assault, she and several inmates complained to Master Jail
Officer Cherry, Officer Hart, Sergeant Cheeseboro, and
Sergeant Phillips "about Benson being housed in that
particular pod." (ECF No. 1-1, at 1.) The Court
construes Askew's Complaint to assert the following
Claim One: Defendants violated Askew's Eighth
Amendment rights by failing to protect her from an
assault perpetrated by two other inmates while she was
incarcerated at the Hampton Roads Regional Jail
(Compl. 5, ECF No. 1.)
matter is before the Court on the Motion for Summary Judgment
filed by Defendants Villanueva, Cowan, and Hatchett
(collectively, "Defendants") (ECF No. 13), as well
as the Court's Memorandum Order of April 19, 2016,
directing Askew to show cause as to why Defendant
Stubblefield should not be dismissed without prejudice for
failure to serve him in a timely manner. Despite sending
appropriate Roseboro notice with the Motion for
Summary Judgment, Askew has not responded. For the reasons
stated below, the Court will GRANT Defendants' Motion for
Summary Judgment. The Court will also DISMISS WITHOUT
PREJUDICE all claims against Defendant Stubblefield pursuant
to Rule 4(m) of the Federal Rules of Civil Procedure.
FAILURE TO SERVE STUBBLEFIELD
the version of Federal Rule of Civil Procedure
in effect at the time Askew filed her action, Askew had one
hundred and twenty (120) days from October 26, 2015 to serve
the Defendants. The summons issued as to Defendant
Stubblefield was returned as unexecuted. (ECF No. 8, at
11-12.) Accordingly, by Memorandum Order entered on April 19,
2016, the Court directed Askew to "show good cause why
the action should not be dismissed without prejudice against
Defendant Stubblefield." (ECF No. 16, at 1.) Askew
failed to respond to the April 19, 2016 Memorandum Order.
Askew has failed to state good cause for her failure to serve
Defendant Stubblefield in a timely manner. Accordingly, all
claims against Defendant Stubblefield will be DISMISSED
WITHOUT PREJUDICE pursuant to Rule 4(m) of the Federal Rules
of Civil Procedure.
STANDARD FOR SUMMARY JUDGMENT
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)).
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 (1871)). '"[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").
support of their Motion for Summary Judgment, Defendants
submit: (1) an affidavit from Defendant Cowan (Mem. Supp.
Mot. Summ. J. Ex. 1 ("Cowan Aff"), ECF No. 14-1);
(2) an affidavit from Defendant Villanueva (id. Ex.
2 ("Villanueva Aff."), ECF No. 14-2); (3) an
affidavit from Defendant Hatchett (id. Ex. 3
("Hatchett Aff."), ECF No. 14-3); (4) an affidavit
from Stephen Phillips, a Sergeant at HRRJ (id. Ex. 4
("Phillips Aff."), ECF No. 14-4); (5) an affidavit
from Mary Cheeseboro, a Sergeant at HRRJ (id. Ex. 5
("Cheeseboro Aff."), ECF No. 14-5); (6) an
affidavit from Sonya Cherry, a Master Jail Officer at HRRJ
(id. Ex. 6 ("Cherry Aff."), ECF No. 14-6);
and, (7) an affidavit from Linda Hart, an Officer at HRRJ
(id Ex. 7 ("Hart Aff."), ECF No. 14-7).
Askew failed to respond, Askew fails to cite the Court to any
evidence 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). Askew's complete failure to present
any evidence to counter Defendants' Motion for Summary
Judgment permits the Court to rely solely on Defendants'
submissions in deciding the Motion 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 ...