United States District Court, E.D. Virginia, Richmond Division
E. PAYNE SENIOR UNITED STATES DISTRICT JUDGE
Gardner Dennis, a Virginia prisoner proceeding with counsel,
submitted this 42 U.S.C. § 1983 complaint. Dennis
demands relief upon the following grounds:
One Dennis's forced participation in the Sex Offender
Residential Treatment program ("SORT") violates his
rights under the Fifth Amendment. (Compl. ¶ 21, ECF No.
Two Dennis's forced participation in SORT violates his
rights to due process because:
(a) it allows "Dennis to be labeled a violent sex
offender, " (id. ¶ 14);
(b) it "has the potential to cause severe changes to the
time to be served on his sentence, " (id.);
(c) "once an inmate is enrolled in the rehabilitation
program, the inmate becomes subject to highly onerous
conditions requiring [his] civil commitment after the
inmate's sentence has been served" (id.
matter is before the Court on the MOTION FOR SUMMARY JUDGMENT
(ECF No. 9) filed by Harold Clarke, the Director of the
Virginia Department of Corrections ("VDOC"). Dennis
has responded. For the reasons set forth below, the Motion
for Summary Judgment will be granted because Dennis's
claims fail as a matter of law.
STANDARD FOR 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.'" 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 (1872)). " * [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 his Motion for Summary Judgment, as pertinent
here, Clarke submitted an affidavit from Marissa M. Coon, the
Program Director for SORT. (Mem. Supp. Mot. Summ. J. Ex. 1
("Coon Aff., " ECF 10-1).) In response, Dennis
submitted his own affidavit. (Mem. Opp'n Mot. Summ. J.
Ex. 1 ("Gardner Decl., " ECF No. 11-1).)
Additionally, Dennis submitted a Psychological Evaluation And
Assessment of Sexual Interest that appears to have been
prepared as a defense exhibit for Dennis's criminal
sentencing in 2008. (Id. Ex. 2 ("Psychological
the Court will consider the evidence offered by the parties
in support of and in opposition to the Motions for Injunctive
Relief filed by Dennis. Specifically, Dennis filed a Motion
for Emergency Temporary Restraining Order and Motion for
Preliminary Injunction (ECF No. 23) and a Second Motion for
Emergency Temporary Restraining Order and Second Motion for
Preliminary Injunction (ECF Nos. 28, 30.) Both these motions
were denied. (See MEMORANDUM ORDER (ECF No. 25) and ORDER
(ECF No. 36).) In support of those motions, Dennis has
submitted his own declarations. (Mem. Supp. Mot. TRO &
Prelim. Inj . Ex. 1 ("Dennis Inj. Decl., " ECF
22-1)); (Mem. Supp. Second Mot. TRO & Prelim. Inj. Ex. 1
("Dennis TRO Decl., " ECF No. 29-1)); (Reply Ex. 1,
("Dennis TRO Supp'l Decl., " ECF No. 34-1).) In
opposition to the Motions for Injunctive Relief, Clarke has
submitted, inter alia, an affidavit from S.
Robertson, a Unit Manager at Greensville Correctional Center
("GCC"), (Def.'s Supp'l Resp. TRO Ex. 1,
("Robertson Aff., " ECF 32-1)), and the affidavit
of S.R. Taylor, a nurse at GCC. (Id. Ex. 2,
("Taylor Aff., " ECF No. 32-2).)
course, the facts offered by any affidavit must be in the
form of admissible evidence. See Fed.R.Civ.P.
56(c)(2). To meet that requirement, the statements in the
affidavit or sworn declaration "must be made on personal
knowledge . . . and show that the affiant or declarant is
competent to testify on the matters stated."
Fed.R.Civ.P. 56(c)(4). Furthermore, summary judgment
affidavits must "set out facts, " rather than
conclusions. Id. Therefore, "summary judgment
affidavits cannot be conclusory ... or based upon
hearsay." Evans v. Techs. Applications & Serv.
Co., 80 F.3d 954, 962 (4th Cir. 1996) (citing
Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970, 975
(4th Cir. 1990); Md. Highways Contractors Ass'n v.
Maryland, 933 F.2d 1246, 1252 (4th Cir. 1991)). Thus,
the parties' conclusory sworn assertions will not be
considered in reviewing the motion for summary
light of the foregoing principles and submissions, the
following facts are established for the purposes of the
Motion for Summary Judgment.
SUMMARY OF PERTINENT FACTS
Summary Of Pertinent Facts
Dennis's Convictions And Referral To SORT
"was convicted by the Albemarle Circuit Court for
[twenty] counts of Possession of Child Pornography, one count
of Sexual Battery, and one count of Computer Use to Commit
Certain Sex Offense with a Minor." (Coon Aff. ¶
10.) Dennis asserts that he entered
Alford pleas to each of these offenses, and he
continues to believe that he did not commit any crime.
(Dennis TRO Decl. ¶ 4.) The public records, however,
reflect that Dennis actually pled guilty to the twenty counts
of possession of child pornography. Dennis v.
Jennings, No. 7:ll-cv-00245, 2011 WL 6293279, at *3, *6
(W.D. Va. Dec. 13, 2011).
purposes of sentencing, Dennis's counsel in the criminal
case referred Dennis for a Psychological Evaluation and
Assessment of Sexual Interest. (Psychological Evaluation
l.)The Psychological Evaluation appears to
have been submitted as a defense exhibit at sentencing.
(Id.) The psychologist administered a "STATIC
99 ... an instrument designed to assist in the prediction of
sexual and violent recidivism for sexual offenders."
(Id. at 5.) According to the psychologist,
Dennis's score of 1 on the STATIC 99 "suggest[s]
that Mr. Dennis is at very low risk for sexual
reoffending." (Id. at 6.) On November 12, 2008,
the Albemarle Circuit Court sentenced Dennis to eleven (11)
years of incarceration. (Compl. ¶ 6; Answer ¶ 7.)
15, 2015, Dennis was transferred from Coffeewood Correctional
Center to GCC for participation in SORT. (Compl. ¶ 9;
Answer ¶ 10.) At GCC, "Dennis is a security level 2
inmate." (Robertson Aff. ¶ 7.) GCC "houses
inmates classified as security levels 2 and 3."
"is part of the VDOC Sex Offender Services Program,
whose mission is to enhance public and institutional safety
by providing evidence based assessment, treatment, re-entry,
and supervision services to sex offenders." (Coon Aff.
¶ 4.) “The primary goal of these
programs is to help sex offenders manage their deviant