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Birdsong v. Ponton

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

September 9, 2016

CHARLES A. BIRDSONG, Plaintiff,
v.
HENRY J. PONTON, et al., Defendants.

          MEMORANDUM OPINION

          James R. Spencer Senior U.S. District Judge

         Charles A. Birdsong, a Virginia inmate, brings this 42 U.S.C. § 1983[1] action alleging that Defendants[2] violated his due process rights under the Fourteenth Amendment.[3] 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 asserts:

Claim One (c): Defendants violated Birdsong's Fourteenth Amendment right to due process when he was transferred to a higher security prison.

         Birdsong 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.

         I. STANDARD FOR SUMMARY JUDGMENT

         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). 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, 448 (1872)).

         In 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).

         At this 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.

         Birdsong's 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.

         II. UNDISPUTED FACTS

         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.)

         On 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.)

         Under 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 recommendation. (Id.)

         Birdsong 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, demonstrate ...


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