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Askew v. Villanueva

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

May 18, 2016

TAMMY Y. ASKEW, Plaintiff,
v.
H. VILLANUEVA, et al., Defendants.

          MEMORANDUM OPINION

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

         Tammy Y. Askew, a Virginia inmate proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983 action.[1] 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.)[2] 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:

Claim One: Defendants[3] violated Askew's Eighth Amendment[4] rights by failing to protect her from an assault perpetrated by two other inmates while she was incarcerated at the Hampton Roads Regional Jail ("HRRJ").

(Compl. 5, ECF No. 1.)

         This 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[5] 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.

         I. FAILURE TO SERVE STUBBLEFIELD

         Under the version of Federal Rule of Civil Procedure 4(m)[6] 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.

         II. 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 (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").

         In 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).

         As 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).[7] 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 ...


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