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Canady v. Tuell

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

July 19, 2016

RODERIC L. TUELL, et al., Defendants.


          Robert E. Payne United States District Judge

         Marlon Canady, a Virginia inmate, has submitted this civil action under 42 U.S.C. § 1983.[1] This matter is before the Court on Defendants' Motion for Summary Judgment (ECF No. 50), Canady's Motion Request for a Temporary Restraining Order (ECF No. 65), and Canady's Motion Request for Production of Documents (ECF No. 69) . For the reasons set forth below, the Motion for Summary Judgment (ECF No. 50) will be granted in part and denied in part, the Motion Request for a Temporary Restraining Order (ECF No. 65) will be denied, and the Motion Request for Production of Documents (ECF No. 69) will be denied without prejudice.

         On January 5, 2015, the Court received Canady's lengthy, rambling, and repetitive Particularized Complaint. (ECF No. 27.) By Memorandum Opinion and Order entered on October 2, 2015, the Court dismissed all of Canady's claims except Claim One. Canady v. Tuell, No. 3:14CV420, 2015 WL 5793678, at *9 (E.D. Va. Oct. 2, 2015) . The Court construes the remaining claim to be as follows:

Claim One: (a) Defendants R. Tuell ("Tuell"), Housing Unit Manager at Sussex I State Prison ("Sussex I")/ S. Logan ("Logan"), former Corrections Sergeant at Sussex I, and S. Vancampen ("Vancampen"), [2] Corrections Counselor at Sussex I ("Defendants"), violated Canady's Eighth Amendment rights by failing to protect him from an attack by his cell mate by refusing to allow Canady to change cells.
(b) Tuell refused to allow Canady to change cells because he had a good conduct allowance level four.

         Canady requests declaratory, injunctive, and monetary relief. Defendants have moved for summary judgment. Canady has responded. The matter is ripe for disposition. For the reasons discussed below, the Motion for Summary Judgment will be granted in part and denied in part.


         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.7" 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)). Nevertheless, "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)).

         As pertinent here, in support of their Motion for Summary Judgment, Defendants submit their respective affidavits (Mem. Supp. Mot. Summ. J. Ex. 1 ("Logan Aff."), ECF No. 51-1; id. Ex. 2 ("Tuell Aff."), ECF No. 51-2; Id. Ex. 3 ("Vancampen Aff."), ECF No. 51-3); and an Internal Incident Report (Tuell Aff. Encl. A).

         As a general rule, a non-movant must respond to a motion for summary judgment with affidavits or other verified evidence. Celotex Corp., 477 U.S. at 324. The Court previously warned Canady that:

[T]he Court will not consider as evidence in opposition to any motion for summary judgment a memorandum of law that is sworn to under penalty of perjury. Rather, any verified allegations must be set forth in a separate document titled "Affidavit" or "Sworn Statement, " and reflect that the sworn statements of fact are made on personal knowledge and that the affiant is competent to testify on the matter stated therein. See Fed.R.Civ.P. 56(c) (4).

(ECF No. 42, at 2.) Canady failed to comply with this directive. Instead, he filed a document entitled "AFFIDAVIT IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT" ("Opposition, " ECF No. 57) comprised of numbered statements where he admits or denies portions of the Defendants' Memorandum in Support of Motion for Summary Judgment, provides legal argument, and makes unsupported conclusions upon which he has no firsthand knowledge. The Court will not accord the Opposition any evidentiary value.

         Additionally, Canady submitted an unsworn "Particularized Complaint." Canady also states the following: "I have read the foregoing complaint, and hereby verify that the matters alleged therein, are true, except as to matters alleged on information and belief, and, as to those, I believe them to be true. I certify under penalty of perjury that the foregoing is true and correct." (Part. Compl. 68.) Such a statement fails to transform the statements in the Particularized Complaint into admissible evidence. Hogge v. Stephens, No. 3.-09CV582, 2011 WL 2161100, at *2-3 & n.5 (E.D. Va. June 1, 2011) (treating statements sworn to under penalty of perjury, but made upon information and belief as ”'mere pleading allegations'" (quoting Walker v. Tyler Cty. Comm'n, 11 F.App'x 270, 274 (4th Cir. 2001))). Therefore, the matters referred to as "on information and belief" will not be afforded evidentiary effect. Attached to his Opposition and filed more than a year after his Particularized Complaint, Canady states: "MARLON CANADY, pro se plaintiff, hereby certify, or declare under penalty of perjury that the information asserted in My Particularized Complaint, and in this Affidavit in Opposition to Defendants' Motion for Summary Judgment is true, and correct to the best of my knowledge." (Opposition 28.) While it is doubtful that Canady's Particularized Complaint constitutes admissible evidence, because Defendants fail to lodge any objection to the admissibility of the Particularized Complaint, the Court nevertheless considers the Particularized Complaint (except where based on information and belief) in assessing the propriety of entering summary judgment.

         Turning to the contents of Canady's Particularized Complaint, "sworn statements 'must be made on personal knowledge . and show that the affiant or declarant is competent to testify to the matters stated.'" Fed.R.Civ.P. 56(c)(4). Therefore, ”summary judgment affidavits cannot be conclusory or based upon hearsay." Evans v. Techs. Apps. & Serv. Co., 8 0 F.3d 954, 962 (4th Cir. 1996) (citations omitted). The absence of an "affirmative showing of personal knowledge of specific facts" prevents the consideration of such facts in conducting the summary judgment analysis." EEOC v. Clay Printing Co., 955 F.2d 936, 945 n.9 (4th Cir 1992) (internal quotation marks omitted). Canady's Particularized Complaint runs afoul of these requirements. The Particularized Complaint contains numerous legal conclusions and matters upon which Canady has no personal knowledge, and thus fails to comply with Federal Rule of Civil Procedure 56(c)(4).[3] The Court will not consider any legal conclusions or matters upon which Canady has no personal knowledge in its consideration of the propriety of summary judgment relief.

         In light of the foregoing principles and submissions, the following facts are established for the purposes of the Motion for Summary Judgment. All permissible inferences are drawn in favor of Canady.


         A. Facts Pertaining To Defendant Logan

         Either on March 6 or March 13, 2012, Canady's cell mate Ernest M. Jones called Logan to their cell to report that Canady had threatened him and possessed weapons. (Part. Compl. ¶ 19.) Logan found large stones outside the cell door near where Jones stood. (Id. ¶ 2 0.) Canady explains that inmates used large stones "to put in pillow cases and socks, so an inmate may bash another inmate in the head or striking other body parts to cause injuries. Both inmates denied ownership of the stones." (Id. ¶¶ 20-21.) Logan warned both inmates "that if she had to return to [the] cell for any reason, she was going to write disciplinary charges, and send [both inmates] to segregation." (Id. 24.) Both inmates asked for a cell change. Logan told them that Tuell made those decisions. (Id. ¶ 25.)

         Logan has no recollection of speaking with Canady about a cell change or finding large stones outside of the cell. (Logan Aff. ¶ 5.) As a Sergeant, Logan had no authority to make cell changes at Sussex. (Id.) However, Logan avers:

Had either offender told me that he had been threatened by his cellmate, and especially if weapons were mentioned, I would have immediately notified my supervisor, the Housing Unit Manager. The offenders would have been brought out of the cell and the cell would be searched for weapons. In addition, situations requiring immediate separation of offenders could also be handled by the Building Lieutenant who would have the authority to immediately separate the offenders. At no time would I force offenders to ...

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