United States District Court, E.D. Virginia, Richmond Division
CHARLES A. BIRDSONG, Plaintiff,
HENRY J. PONTON, et al., Defendants.
R. Spencer Senior U.S. District Judge
A. Birdsong, a Virginia inmate, brings this 42 U.S.C. §
action alleging that Defendants violated his due process rights
under the Fourteenth Amendment. By Memorandum Opinion and Order
entered on November 13, 2015, the Court dismissed all of
Birdsong's claims except Claim One (c). Birdsong v.
Ponton, No. 3:14CV702, 2015 WL 7176112, at *6 (E.D. Va.
Nov. 13, 2015). The action proceeds on Claim One (c) of
Birdsong's Complaint. (ECFNo. 1.) Specifically, Birdsong
Claim One (c): Defendants violated Birdsong's Fourteenth
Amendment right to due process when he was transferred to a
higher security prison.
seeks declaratory, injunctive, and monetary relief. The
matter is now before the Court on Defendants' Motion for
Summary Judgment (ECF No. 40) and Supplemental Motion for
Summary Judgment (ECF No. 50). For the reasons stated below,
Defendants' Motion for Summary Judgment and Supplemental
Motion for Summary Judgment will be GRANTED.
STANDARD FOR SUMMARY JUDGMENT
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). It is the responsibility of the party
seeking summary judgment 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 Celolex 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 (quoting
Improvement co. v. Munson, 81 U.S. (14 Wall.) 442,
support of their Motion for Summary Judgment and Supplemental
Motion for Summary Judgment, Defendants have submitted: (1)
Defendant Ponton's affidavit (Mem. Supp. Mot. Summ. J.
Ex. 1 ("Ponton Aff."), ECF No. 41-1); (2) an
affidavit from David Robinson, Chief of Corrections
Operations for the VDOC (id. Ex. 2 ("Robinson
Aff."), ECF No. 41-2); and, (3) an affidavit from D.
Tate, a major at Red Onion State Prison ("ROSP")
(Mem. Supp. Supp'l Mot. Summ. J. Ex. 1 ("Tale
Aff."), ECF No. 51-1).
stage, the Court is tasked with assessing whether Birdsong
"has proffered sufficient proof, in the form of
admissible evidence, that could carry the burden of
proof of his claim at trial." Mitchell v. Data Gen.
Corp., 12 F.3d 1310, 1316 (4th Cir. 1993) (emphasis
added). Because Birdsong failed to swear to the contents of
his Complaint under penally of perjury, the Complaint fails
to constitute admissible evidence. See United Stales v.
White, 366 F.3d 291, 300 (4th Cir. 2004). Moreover,
although Birdsong responded to both the Motion for Summary
Judgment and the Supplemental Motion for Summary Judgment
(ECF Nos. 44, 43), Birdsong failed to submit any evidence
with his responses.
failure to present any admissible evidence to counter
Defendants' Motion for Summary Judgment and Supplemental
Motion for Summary Judgment permits the Court rely solely on
Defendants' affidavits in deciding the Motion and
Supplemental Motion. See Forsyth v. Barr, 19 F.3d
1527, 1537 (5th Cir. 1994) ("'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.'" (quoting
Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915
& n.7 (5th Cir. 1992))). Accordingly, the following facts
are established for the Motion for Summary Judgment and
Supplemental Motion for Summary Judgment. The Court draws all
permissible inferences in favor of Birdsong.
was initially assigned to Security Level 5 when he entered
into the custody of the VDOC in 2001. (Ponton Aff. ¶ 5.)
In 2003, after a review, Birdsong was assigned to Security
Level 3. (Id.) Three years later, after an
institutional conviction for aggravated assault,
"Birdsong was assigned to segregation status and
Security Level 5." (Id.) On October 20, 2010,
while incarcerated at Wallens Ridge State Prison, Birdsong
was assigned to Security Level 4. (Id.) "He was
transferred to Sussex I State Prison on July 24, 2012, and to
[Nottoway Correctional Center ("NCC")] on August
31, 2012." (Id.)
November 2, 2012, Birdsong received institutional charges
while incarcerated at NCC which resulted in an increase in
his security level. (Id.) On January 10, 2013,
Birdsong received an Institutional Classification Authority
("ICA") Hearing Notification Form. (Id.
¶ 7.) This form notified Birdsong "that he would be
reviewed by the ICA on or after January 10, 2013, for
transfer to a higher security facility and reduction in good
time earnings." (Id.)
VDOC Operating Procedure 830.1, an offender must
"receive notice within 48 hours of a formal ICA hearing.
The offender is permitted to be present at the hearing, to
remain silent and to have a counselor or other employee
present to advise him." (Id. ¶ 6.)
Birdsong waived his right to 48-hours notice. (Id.
¶ 7.) His ICA hearing was held on January 11, 2013.
(Id.) Birdsong was present for the hearing.
(Id.) During the hearing, "Birdsong disputed
the scoring used to determine his assignment(s). The ICA
recommended Birdsong's assignment to Security Level 5 and
transfer to Red Onion State Prison or Wallens Ridge State
Prison, noting that he had established a poor pattern of
institutional behavior within a short time."
(Id.) On January 17, 2013, the VDOC's
Classification Section reviewed and approved the ICA's
was transferred to ROSP on January 28, 2013. (Id.)
Birdsong "was received at ROSP from Nottoway
Correctional Center under segregation status on January 28,
2013." (Tate Aff. ¶ 4.) ROSP "is a maximum
security correctional facility that houses offenders who are
classified as high security risks and who are some of the
most violent offenders incarcerated in the VDOC."
(Robinson Aff. ¶ 3.) Many offenders housed at ROSP
"require segregation housing because they are
disruptive, assaultive, have severe behavioral problems,