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Dennis v. Clarke

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

August 17, 2016




         James Gardner Dennis, a Virginia prisoner proceeding with counsel, submitted this 42 U.S.C. § 1983 complaint. Dennis demands relief upon the following grounds:

         Claim One Dennis's forced participation in the Sex Offender Residential Treatment program ("SORT") violates his rights under the Fifth Amendment. (Compl. ¶ 21, ECF No. 1.)

         Claim 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.); and,
(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. ¶ 16).

         The 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.[1]


         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 (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 . . . .") .

         In 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 Evaluation").)

         Additionally, 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).)

         Of 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.[2] 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 judgment.[3]

         In light of the foregoing principles and submissions, the following facts are established for the purposes of the Motion for Summary Judgment.


         B. Summary Of Pertinent Facts

         1. Dennis's Convictions And Referral To SORT

         Dennis "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[4] 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).

         For purposes of sentencing, Dennis's counsel in the criminal case referred Dennis for a Psychological Evaluation and Assessment of Sexual Interest. (Psychological Evaluation l.)[5]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.)

         On July 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." (Id.)

         SORT "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 thoughts ...

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