United States District Court, E.D. Virginia, Richmond Division
E. Payne United States District Judge
Canady, a Virginia inmate, has submitted this civil action
under 42 U.S.C. § 1983. 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.
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"),  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.
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 STANDARD
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)).
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
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.
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
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.
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). 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
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.
SUMMARY OF PERTINENT FACTS
Facts Pertaining To Defendant Logan
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.)
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 ...