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Moody v. City of Newport News

United States District Court, E.D. Virginia, Newport News Division

June 17, 2016

COREY MOODY, Plaintiff,
v.
THE CITY OF NEWPORT NEWS, VIRGINIA, JAMES D. FOX, IN HIS OFFICIAL CAPACITY, RICHARD W. MYERS, IN HIS OFFICIAL CAPACITY, DANIELLE HOLLANDSWORTH, INDIVIDUALLY, RUSSEL TINSLEY, INDIVIDUALLY, RANDY GIBSON, INDIVIDUALLY, and RYAN NORRIS, INDIVIDUALLY, Defendants.

          OPINION AND ORDER

          MARK S. DAVIS, UNITED STATES DISTRICT JUDGE

         On December 12, 2012, Plaintiff Corey Moody ("Plaintiff") suffered gunshot wounds and sustained permanent injuries during a traffic stop and arrest for federal drug and gun charges. Compl., ECF No. 1. Due to the events that transpired during the traffic stop, Plaintiff filed suit, pursuant to 42 U.S.C. § 1983, against the City of Newport News, Virginia, the former and current Newport News Chiefs of Police, James D. Fox and Richard W. Myers, respectively, and the four Newport News Police Officers involved in the shooting, Danielle Hollandsworth ("Hollandsworth"), Russel Tinsley ("Tinsley"), Randy Gibson ("Gibson"), and Ryan Norris {"Norris"). Hollandsworth and Gibson are the only Defendants remaining in this case, as the other Defendants were previously dismissed. ECF Nos. 33, 50, 67, 68.

         Plaintiff alleged claims of excessive force, in violation of the Fourth and Fourteenth Amendments, against Hollandsworth and Gibson. Compl. at 12. This matter comes before the Court on a Motion for Summary Judgment by Hollandsworth, ECF No. 59, and a Motion for Summary Judgment by Gibson (collectively "Defendants"), ECF No. 62. Defendants Hollandsworth and Gibson both assert that they did not violate Plaintiff's constitutional rights and they are entitled to qualified immunity for their actions on December 12, 2012, and urge the Court to grant summary judgment. With the Motions fully briefed, and oral argument completed, this matter is ripe for consideration. I. FACTUAL AND PROCEDURAL BACKGROUND[1]A. Plaintiff s Prior Interactions with Law Enforcement It is undisputed that, in 1999, prior to the incident giving rise to this suit, Plaintiff had been convicted of the felony offense of manufacture, sale, and possession of a controlled substance. Br. in Supp. of Mot. for Summ. J., 3, ECF No. 63 [hereinafter "Mem. in Supp. of Gibson Mot."]; id., Ex. 6, Moody Deposition Excerpts, 68:3-15, ECF No. 63-6 [hereinafter "Moody Depo."]. It is also undisputed that Plaintiff sold narcotics to support himself between 2009 and 2012. Moody Depo. at 22:11-14.

         On March 11, 2012, Hollandsworth pulled Plaintiff over for a traffic stop in Newport News, Virginia. Mem . in Supp . of Gibson Mot. at 3; id., Ex. 3, Hollandsworth Deposition Excerpts, 42:19-43:22, ECF No. 63-3 [hereinafter "Hollandsworth Depo."] . During this March 11, 2012 traffic stop, Plaintiff consented to a search of his person, and Hollandsworth discovered cocaine on Plaintiff. Hollandsworth Depo. at 43:5-14. Plaintiff was advised of his Miranda rights and was detained, - Plaintiff then admitted to possession of the cocaine. Id. Hollandsworth next searched Plaintiff's vehicle and located more narcotics. Id. at 43:15-22, Based upon the discovery of narcotics on Plaintiff's person and in his vehicle, Hollandsworth, and other police officers, obtained a search warrant for Plaintiff's residence. Id. During execution of the search warrant at Plaintiff's residence, Hollandsworth found, among other things, cocaine, ecstasy, several types of ammunition, and a firearm in rooms that were under Plaintiff's control. Id. at 48:11-49:19. Drug and weapon charges were later filed in the Hampton Circuit Court and Newport News Circuit Court related to the items found during the traffic stop and the search of Plaintiff s residence. Id. at 43:19-25. While the state charges were pending, Plaintiff was placed on bond. See Transcript of Hearing on Mot. for Summ. J., 35:12-15, 47:19-23, ECF No. 94 [hereinafter "Transcript" ]; Commonwealth v. Moody, CR1200 0671, Bond Order (Hampton, Va. Cir. Ct.) . Ultimately, federal authorities adopted the case, prosecuting Plaintiff for possession of drugs with the intent to distribute, possessing a firearm in furtherance of such drug trafficking crime, and being a felon in possession of a firearm, and the Hampton and Newport News charges were dismissed as nolle prosequi. Id. at 60:3-15; Mem. in Supp. of Gibson Mot. at 4.

         A valid federal arrest warrant was issued for Plaintiff, who was forty years old at the time, on November 15, 2012, based upon a three-count federal indictment for (1) possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1); (2) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924 (c) (1) (A); and (3) possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) (1) . Mem. in Supp. of Gibson Mot. at 4; id., Ex. 4, Moody Indictment, ECF No. 63-4; id., Ex. 10, Moody Arrest Warrant, ECF No. 63-10.

         At some point prior to December 12, 2012, Hollandsworth was informed of the federal charges pending against Plaintiff. Mem, in Supp. of Gibson Mot. at 4 . According to Hollandsworth, Special Agent Tim Jenkins of the United States Drug Enforcement Agency advised her that a "federal detainer" had been issued against Plaintiff, and he requested her assistance in locating Plaintiff. Hollandsworth Depo. at 56:1-19, 60:12-15. Special Agent Jenkins also informed Hollandsworth of Plaintiff's last known whereabouts and the make, model, and license plate number of the car that Plaintiff was believed to be driving. Def. Hollandsworth's Mem. of Law in Supp. of Mot. for Summ. J., Ex. 4, Hoilandsworth's Answers to Plaintiff's First Set of Interrogatories, 2, ECF No. 60-4 [hereinafter "Hollandsworth Interrogatory Answers"].[2] Hollandsworth looked for Plaintiff's vehicle "over several months" in the area reported to her by Special Agent Jenkins, and she located the vehicle known to be associated with Plaintiff on December 12, 2012. Id. at 2.

         B. December 12, 2012

         On the evening of December 12, 2012, after locating the vehicle known to be associated with Plaintiff, Hollandsworth, assisted by Tinsley, undertook surveillance of the apartment where the vehicle was located. Hollandsworth Depo. at 75:22-77:7. Hollandsworth and Tinsley asked fellow Newport News police officers Norris and Gibson for assistance with this surveillance. Id. at 76:8-15. During the surveillance, Hollandsworth observed a blue BMW, which she knew to have some relationship to Plaintiff, pull away from the apartment. Id. at 79:8-16. Hollandsworth and Tinsley suspected that Plaintiff was driving the vehicle, and began to follow the blue BMW in their unmarked police car. Mem, in Supp. of Gibson Mot. at 4-5; id., Ex. 9, Tinsley Deposition Excerpts, 62:11-63:6, ECF No. 63-9 [hereinafter "Tinsley Depo."]. While Hollandsworth and Tinsley followed the blue BMW, they observed the vehicle fail to signal a lane change. Tinsley Depo. at 64:3-18. Hollandsworth and Tinsley then activated the blue lights on their unmarked police vehicle and pulled over the blue BMW. Tinsley Depo. at 64:3-65:5. While pulling the vehicle over, Hollandsworth called in the traffic stop over the radio, notifying Gibson and Norris of the stop. Mem. in Supp. of Gibson Mot., Ex. 2, Gibson Deposition Excerpts, 28:7-29:4, ECF No. 63-2 [hereinafter "Gibson Depo. " ]; Tinsley Depo . at 64:10-18. Hollandsworth and Tinsley pulled the blue BMW over in the far left-hand lane, on an incline, [3] on the 3 5th Street overpass in Newport News, Virginia, near the on-ramps for Interstate 664 South and Interstate 664 North. Tinsley Depo. at 64:3-65:5; Gibson Depo. at 29:9-15. After the blue BMW stopped in the far left-hand lane, Tinsley and Hollandsworth parked their unmarked police car behind the BMW. Gibson Depo. at 29:9-15; Hollandsworth Depo. at 112:22-25. Gibson and Norris, who arrived with their blue lights activated at the scene shortly after Tinsley and Hollandsworth arrived, parked their unmarked police car behind Tinsley and Hollandsworth's vehicle.[4] Mem. in Supp. of Gibson Mot. at 5.

         After pulling the blue BMW over, Hollandsworth exited the police vehicle and approached the right (passenger) side of the vehicle. Tinsley Depo. at 68:4 -14. Hollandsworth progressed far enough forward on the right side of the blue BMW to identify Plaintiff (who she knew from her earlier interactions with him) as the driver, and she informed Tinsley as much by giving Tinsley a thumbs up and confirming that "it's him." Id. After Hollandsworth identified Plaintiff, she returned to the rear of Plaintiff's vehicle-walking back the way that she had come-and circling around the back of Plaintiff's vehicle to eventually stand by the rear door on the left (driver) side. Id. at 68:8-15; Def. Hollandsworth's Mem. of Law in Supp. of Mot. for Summ. J., Ex. 1, Hollandsworth Deposition Excerpts, 86:5-8, 87:1-10, ECF No. 60-1 [hereinafter "Hollandsworth Mot. Depo."].

         As Hollandsworth walked towards Plaintiff's vehicle, Tinsley exited the unmarked police car and approached the left (driver) side of Plaintiffs vehicle. Tinsley Depo. at 68:4-20. Tinsley continued to walk forward along the left side of Plaintiff's vehicle until he reached the front driver's side window. Id. at 68:13-69:9. However, as Tinsley neared Plaintiff's vehicle, he realized that he could not see Plaintiff's hands. Id. at 68:13-20. Tinsley then yelled and ordered Plaintiff to place his hands out the window, where the officers could see them.[5] Moody Depo. at 38:16-19; cf. Tinsley Depo. at 68:13-20. Plaintiff complied with Tinsley's order and placed both hands out the window. Moody Depo. at 38: 16-19; Tinsley Depo. at 68:13-20. Additionally, Plaintiff did not immediately place his vehicle in park when he came to a stop on 35th Street; one of the police officers told Plaintiff to take his foot off the brake and put the vehicle in park. Moody Depo. at 38:8-13. Plaintiff complied with the order and placed his vehicle in park. Id. at 38:11-15.

         Gibson and Norris arrived at the scene shortly after Tinsley and Hollandsworth arrived, just as Tinsley exited his police car. Gibson Depo. at 29:9-19. After arriving, Norris remained away from Plaintiff s vehicle during the officers' interaction with Plaintiff . Id. at 37:1-4; Hollandsworth Mot. Depo. at 86:15-87:4. Gibson, however, exited the unmarked police car and slowly walked towards the right (passenger) side of Plaintiff's vehicle. Gibson Depo. at 32:2-15. Gibson continued to walk along the right side of Plaintiff's vehicle until he reached the front right door. Id. at 32:17-22.

         During the traffic stop, all four officers were wearing police raid vests, with the word "police" printed on them in yellow letters and a police badge on the front of the vest.[6] Tinsley Depo. at 58:17-25; Hollandsworth Depo. at 84:17-85:4. Further, both unmarked police vehicles were equipped with blue police lights, and such blue lights were activated on both cars during the traffic stop.[7]Mem. in Supp . of Gibson Mot. at 5; Hollandsworth Depo. at 112: 5-113: 2; Mem. in Supp. of Gibson Mot., Ex. 7, Norris Deposition Excerpts, 75:12-76:6, ECF No. 63-7 [hereinafter "Norris Depo."]; Moody Depo. at 37:7-21. Due to the blue flashing lights, Plaintiff understood that the individuals pulling him over were police officers. Moody Depo. at 37:19-38:7.

         C. Tinsley and Plaintiff's Struggle

         Tinsley approached the left (driver) side of Plaintiffs vehicle, holding handcuffs in one hand. Moody Depo. at 144:7-146:2, 157:7-17; Tinsley Depo. at 68:21-69:9. When Tinsley reached the front driver's side door, he attempted to place the handcuffs on Plaintiff. Moody Depo. at 144:2-6; Tinsley Depo. at 68:21-69:9. While trying to place the handcuffs on Plaintiff, Tinsley grabbed Plaintiff's arm and attempted to pull Plaintiff towards himself, through the vehicle window. Moody Depo. at 40:13-41:25, 144:2-146:2. However, as Tinsley attempted to handcuff Plaintiff, Plaintiff "snatched" his hands back, away from Tinsley, and twisted to the right, towards the passenger seat of the vehicle. Id. at 38:20-24, 48:18-25, 158:17:-159:6; Tinsley Depo. at 68:21-69:9; Hollandsworth Interrogatory Answers at 3. After Plaintiff pulled back from Tinsley, he attempted to ask Tinsley "what's the problem . . . what's going on"? Moody Depo. at 40:13-41:6. Tinsley's attempts to handcuff Plaintiff while he was still in the car were confusing to Plaintiff because, while he knew that Tinsley was a police officer, he had never been arrested or handcuffed in such a fashion. Opp'n to Def. Gibson's Mot. for Summ. J., Ex. 2, Moody Deposition Excerpts, 46:21-48:4, ECF. No. 72-2 [hereinafter "Moody Opp'n Depo."]. Further, when Plaintiff pulled his arm away from Tinsley, he heard the officer standing by the passenger's side of the vehicle (Gibson) say "something about he was going to blow [Plaintiff's] head off or something like that." Id. at 42:17-43:7. As Plaintiff pulled away from Tinsley, Plaintiff drew his arms back towards himself and turned to his right, towards the passenger's seat. Moody Depo. at 48:14-25. Tinsley observed Plaintiff reach towards the center console area with both hands. Tinsley Depo. at 69:6-9. At that point, Tinsley attempted to gain control of Plaintiff's hands by reaching through the driver's side window. Id. at 69:10-21; Moody Depo. at 48:5-25. In his attempt to grab Plaintiff's hands, Tinsley inserted the upper half of his body into Plaintiff's vehicle and ended up inside the car, through the driver's side window, from his waist up.[8] Tinsley Depo. at 69:11-21; Moody Depo. at 53:5-13. While attempting to control Plaintiff's hands, Tinsley also told Plaintiff to "stop reaching." Def. Hollandsworth's Mem. of Law in Supp. of Mot. for Summ. J., 2, ECF No. 60; id., Ex. 2, Tinsley Deposition Excerpts, 78:13-24, ECF No. 6 0-2 [hereinafter "Hollandsworth Mot. Tinsley Depo."]; Hollandsworth Mot. Depo. at 87:11-14.

         While Tinsley was inside Plaintiff's vehicle and attempting to grab his hands, Tinsley saw Plaintiff release the emergency brake on his vehicle. Tinsley Depo. at 69:18-70:3. Plaintiff then attempted to shift his car into gear. Moody Depo. at 53:1-13, 57:1-19. To shift his vehicle from park into drive, Plaintiff reached his hand to the right and down, between the driver and front passenger bucket seats. Moody Depo. at 53:18-55:18; Transcript at 95:16-21. While Plaintiff was reaching between the driver and front passenger seats, Plaintiff then heard a gunshot from one side of his vehicle and put his car in neutral. Moody Depo. at 53:1-4, 55:19-57:4. Plaintiff attempted to put his car into drive to escape the gunshot but he was only able to shift his car into neutral gear initially. Id. at 55:19-56:25. After Plaintiff put his car in neutral, he heard additional shots from the other side of his vehicle. Id. at 53:1-56:25. Plaintiff recalls that the gunshots came in short succession-with a very short time in between the first shot and those that followed from the other side of his vehicle. Id. at 56:1-25. Once Plaintiff shifted his vehicle into drive, his vehicle travelled forward, up the slight incline of the 35th Street overpass. Id. at 59:21-60:15. Tinsley was still in the passenger compartment of Plaintiff's vehicle when the car began to move.[9] Tinsley Depo. at 69:22-70:5; Def. Hollandsworth's Mem. of Law in Supp. of Mot. for Summ. J. at 3; id, Ex. 6, Norris Deposition Excerpts, 69:4-25, ECF No. 60-6 [hereinafter "Hollandsworth Mot. Norris Depo."]. Plaintiff's vehicle traveled forward a short distance before Tinsley heard a shot and felt a sensation "like somebody punched [him] in the side of the face." Tinsley Depo. at 70:1-5. Plaintiff's vehicle continued to travel forward across the 35th Street overpass, and it came to a stop on the other side of the overpass. Moody Depo. at 60:6-15. Plaintiff did not possess a weapon during the events on December 12, 2012. Opp'n to Def. Gibson's Mot. for Summ. J. at 4; see Hollandsworth Mot. Depo. at 92:10-93:8 (explaining that Hollandsworth did not see a weapon in Plaintiff's possession on December 12, 2012); cf. Def. Hollandsworth's Mem. of Law in Supp. of Mot. for Summ. J., Ex. 15, Certificate of Analysis, ECF No. 60-15 (listing forensic analysis test results of Hollandsworth and Gibson's weapons, the only two weapons fired at the scene on December 12, 2012) .

         D. Hollandsworth's Actions

         During Tinsley's interactions with Plaintiff, Hollandsworth stood behind Tinsley, along the left (driver) side of the vehicle, near the rear left door. Hollandsworth Mot. Depo . at 86:5-8. After Tinsley approached the front, driver side window, Hollandsworth watched Tinsley reach inside Plaintiff's vehicle with handcuffs and she observed the ensuing struggle between Tinsley and Plaintiff. Id. at 123:4-125:2. During the struggle, Hoilandsworth saw Plaintiff's vehicle's brake lights flash[10] and Plaintiff reach downward, between the driver and front passenger seats, with his right hand. Hollandsworth Interrogatory Answers at 3 . Hollandsworth could not see fully into Plaintiff's vehicle, and she did not see a weapon from her vantage point. Hollandsworth Mot. Depo. at 92:10-93:8. However, having found a firearm in rooms under Plaintiff's control during her prior March 11, 2012 search of Plaintiff's residence, and therefore being concerned that Plaintiff might have a gun in his vehicle and might be reaching for such gun with his right hand, Hollandsworth took a step backwards and drew her weapon. Id. Hollandsworth "fear[ed] that Officer Tinsley would be shot, " and she "fired [her] weapon once at the vehicle in an effort to protect Officer Tinsley." Hollandsworth Interrogatory Answers at 3. Hollandsworth fired one shot at the car. Id.; Hollandsworth Mot. Depo. at 87:21-22. After Hollandsworth fired her shot, she immediately heard Gibson fire his weapon. Hollandsworth Interrogatory Answers at 3; Hollandsworth Depo. at 120:5-16. Hollandsworth's shot did not strike Plaintiff, but traveled through the left rear side window, behind the driver's seat, through the driver's headrest and penetrated the dashboard. Def. Hollandsworth's Mem. of Law in Supp. of Mot. for Sumrn. J. at 4; id., Ex. 7, Criminal Investigation, 5, ECF No. 60-7; id, , Ex. 9, Best Deposition Excerpts, 50:10-22, ECF No. 60-9.

         E. Gibson's Actions

         When Gibson arrived at the scene, he exited his unmarked police car and approached the right (passenger) side of Plaintiff s vehicle. Gibson Depo. at 32:4-25. Gibson walked along the right side of Plaintiff's vehicle until he reached the front of the vehicle, near the front passenger side door. Id. Once Gibson reached the front passenger side door, he observed Tinsley, standing alongside the left driver side of Plaintiff's vehicle, reach inside Plaintiff's vehicle to take control of Plaintiff's left arm. Def . Hollandsworth's Mem. of Law in Supp. of Mot. for Summ. J., Ex. 3, Gibson Deposition Excerpts, 37:11-39:8, ECF No. 60-3 [hereinafter "Hollandsworth Mot. Gibson Depo."]. Gibson saw Tinsley's body break the threshold of Plaintiff's vehicle window, but he does not recall whether Tinsley's chest, head, or upper torso, were in the proximity of Plaintiff's steering wheel. Gibson Depo. at 42:2-19. While Tinsley was attempting to take control of Plaintiff's arm, Gibson observed Plaintiff reach down, place his hand on his vehicle's emergency brake, and lower the emergency brake. Hollandsworth Mot. Gibson Depo. at 37:11-38:23. As Gibson realized the Plaintiff was lowering the emergency brake, he yelled at Plaintiff to stop. Id. at 39: 9-15 . When Plaintiff continued to lower the emergency brake and began to move to put his vehicle into gear, Gibson began drawing his firearm. Id. at 40:6-25. As Gibson drew his weapon, he observed Tinsley "going forward and downward" as if "being drug by the car."[11] Gibson Depo. at 44:1-4, 45:7-18. Gibson believed that Plaintiff was about to flee and that Tinsley was in danger of being dragged or run over during Plaintiff ' s flight, so he fired his weapon at Plaintiff . Mem. in Supp. of Gibson Mot. at 8; id., Ex. 1, Gibson Interrogatory Answers, 2, ECF No. 63-1.

         When he began to shoot, Gibson stood alongside the front right (passenger) side door and his first shot went through the front right side window, towards Plaintiff's legs. Gibson Depo. at 44:17-45:6. At about the time Gibson shot, he heard another gunshot, which he believed to have come from another officer. Id. at 44:5-16. Gibson's next shots, towards Plaintiff's upper body, traversed along the right side of the vehicle as the vehicle moved forward away from Gibson. Id. at 45:7-25, 48:7-18; Def. Hollandsworth's Mem. of Law in Supp. of Mot. for Summ. J., Ex. 8, NNPD Photographs, ECF No. 60-8. Gibson fired approximately four shots at Plaintiff through the windows of Plaintiff's vehicle. Gibson Depo. at 48:19-49:20. Plaintiff suffered gunshot wounds and sustained permanent injuries resulting from the transection of his spinal cord at the T10-T11 level. Opp'n to Def. Hollandsworth's Mot. for Summ. J., Ex. 4, Waller Report, ECF No. 64-4.

         F. Procedural History

         On July 31, 2014, Plaintiff filed suit, pursuant to 42 U.S.C. § 1983, against the City of Newport News, Richard Myers (the current Newport News Chief of Police), James Fox (the former Newport News Chief of Police), and Norris, Hollandsworth, Tinsley, and Gibson. Compl., ECF No. 1. Plaintiff asserted several claims, including claims of unreasonable seizure through use of excessive force, in violation of the Fourth and Fourteenth Amendments, against the four police officers. Id. Claims against Richard Meyers and James Fox were dismissed on November 4, 2014. ECF Nos. 33, 44. The parties stipulated to dismissal of Plaintiff's claims against Norris on September 11, 2015. ECF No. 50. Further, the parties stipulated to the dismissal of the City of Newport News and Tinsley on December 28, 2015. ECF Nos. 67, 68. Thus, the only parties remaining in this action are Hollandsworth and Gibson.

         On December 7, 2015, Hollandsworth filed her Motion for Summary Judgment, arguing that she did not violate Plaintiff's constitutional rights because her actions on December 12, 2012 did not seize Plaintiff, that her actions did not constitute excessive force, and that she is entitled to qualified immunity.[12] Def. Hollandsworth's Mot. For Summ. J., ECF No . 59. On December 21, 2015, Plaintiff filed his opposition to Hollandsworth's Motion. Opp'n to Def. Hollandsworth's Mot. for Sumrn. J., ECF No. 64. Hollandsworth filed her reply in support of her Motion on December 23, 2015. Def. Hollandsworth's Reply to Opp'n to Mot. for Summ. J., ECF No. 65.

         On December 21, 2 015, Gibson filed his Motion for Summary Judgment, arguing that his actions did not constitute excessive force and that he is entitled to qualified immunity. Mot. for Summ. J., ECF No. 62. On January 11, 2016, Plaintiff filed his opposition to Gibson's motion. Opp'n to Def. Gibson's Mot. for Summ. J., ECF. No. 72. Gibson filed his reply in support of his Motion on January 19, 2016. Reply Br. in Supp. of Mot. for Summ. J., ECF No. 80. The parties then appeared before the Court for extensive oral argument on May 5, 2016.

         II. LEGAL STANDARD

         A. Summary Judgment Standard

         The Federal Rules of Civil Procedure provide that a district court shall grant summary judgment in favor of a movant if such party "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) . "' [T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.'" Cloaninger ex rel. Estate of Cloaninger v. McDevitt, 555 F.3d 324, 332 (4th Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is "material" if it "might affect the outcome of the suit, " and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. A party opposing a summary judgment motion "'cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another.'" Othentec Ltd. v. Phelan, 526 F.3d 135, 140 (4th Cir. 2008) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)).

         Federal Rule of Civil Procedure 56(c) addresses the applicable procedure for pursuing, and defending against, summary judgment, explaining as follows:

(c) Procedures.
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c) (emphasis added) . Rule 56 further states that " [i] f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), " the Court has discretion to "consider the fact undisputed for purposes of the motion." Fed.R.Civ.P. 56(e) (2) .

         Although the initial burden at summary judgment falls on the moving party, once such party has advanced evidence supporting entry of summary judgment, the non-moving party may not rest upon the mere allegations of the pleadings, but instead must set forth specific facts in the form of exhibits, sworn statements, or other materials that illustrate a genuine issue for trial. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); Butler v. DriveAuto. Indus, of Am., Inc., 793 F.3d 404, 408 (4th Cir. 2015). Thus, while the movant must carry the burden to show the absence of a genuine issue of material fact, when such burden is met, the non-movant must establish the existence of such an issue. Celotex, 477 U.S. at 322- 23. At that point, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. In doing so, the judge must construe the facts and all ...


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