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Roberts v. McCabe

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

March 14, 2017

SHERIFF McCABE, et ah, Defendants.


          John A. Gibney, Jr. Judge

         Antwain Roberts, a former Virginia detainee[1] proceeding pro se, filed this 42 U.S.C. § 1983[2] action in which he alleges Defendants[3] violated his rights under the Eighth Amendment[4]and Fourteenth Amendment.[5] Roberts alleges that during his detention in the Norfolk City Jail, the Defendants subjected him to excessive force and denied him adequate medical care. Specifically, Roberts argues that he is entitled to relief on the following claims:

Claim One: Defendant McCabe violated "Roberts's 8th and 14th Amendments when he allowed his deputy Defendant Satterthewaite to assault Mr. Roberts . . . and when he failed to write an incident report. . . ." (Statement of Claims 13, ECF No. 1-2.)[6]
Claim Two: Defendant Satterthewaite violated "Roberts's 8th and 14th amendments" when he grabbed Roberts and forced him into a cell. (Id.)
Claim Three: Defendant Johnson was deliberately indifferent to Roberts's medical needs when he:
(a) "he misdiagnosed Mr. Roberts's injury as muscle spasms from sleeping the wrong way;" and,
(b) "took over 20 days after the assault to even see Plaintiff Roberts." (Id. at 14.)
Claim Four: Defendant Davis was deliberately indifferent to Roberts's medical needs when she "failed to recognize the serious injury to Mr. Roberts's right shoulder and refused him adequate medical treatment of physical therapy and follow up treatments" and told him to do exercises that made his condition worse. (Id.)

         Roberts seeks monetary damages and an injunction in the form of ordering Defendants to provide therapy. (Id. at 16.) The matter is before the Court on the Motion for Summary Judgment filed by Defendants McCabe and Satterthewaite (ECF No. 31) and the Motion for Summary Judgment filed by Defendants Johnson and Davis (ECF No. 39). Roberts has responded. (ECF Nos. 37, 42.) For the reasons that follow, the Motions for Summary Judgment will be GRANTED.


         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 ....").

         Moreover, not all disputes of fact preclude summary judgment. Instead, "the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 248. With respect to materiality, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.

         As to genuineness, the nonmoving party "must produce . . . evidence that creates a fair doubt; wholly speculative assertions will not suffice." Bongam v. Action Toyota, Inc., 14 F.App'x 275, 280 (4th Cir. 2001) (internal quotation marks omitted). "A motion for summary judgment may not be defeated by evidence that is 'merely colorable' or 'is not sufficiently probative.'" M & M Med. Supplies & Serv., Inc. v. Pleasant Valley Hosp., Inc., 981 F.2d 160, 163 (4th Cir. 1993) (quoting Anderson, 477 U.S. at 249-50). Nor will mere "metaphysical doubt as to the material facts" create a genuine dispute. Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Thus, "[t]he nonmovant can show that a dispute is genuine only if it provides sufficient evidence so that a 'reasonable jury could return a verdict for the nonmoving party.'" Wiggins v. DaVita Tidewater LLC, 451 F.Supp.2d 789, 796 (E.D. Va. 2006) (quoting Anderson, 477 U.S. at 248).

         In support of their Motion for Summary Judgment, Defendant McCabe and Satterthewaite submit: (1) a large group of records including booking records, the internal investigation conducted of the incident, and Roberts's medical records (ECF No. 32-1); (2) an affidavit of Defendant Johnson (ECF No. 32-2 ("Johnson Aff.")); (2) an affidavit of Lt. Gerald Snyder (ECF No. 32-3 ("Snyder Aff.")); (3) an affidavit of Captain Gregory Toczek (ECF No. 32-A ("Toczek Aff.")); (4) an affidavit of Deputy Vincent Cooley (ECF No. 32-5 ("Cooley Aff.")); and, (5) an affidavit of Defendant Satterthewaite (ECF No. 32-6 ("Satterthewaite Aff.")).

         In Support of their Motion for Summary Judgment, Defendants Johnson and Davis submit: (1) an affidavit of Defendant Davis (Mem. Supp. Mot. Summ. J. Ex. 1, ECF No. 40-1 ("Davis Aff.")); (2) Roberts's medical records from Sentara Norfolk General Hospital prior to his admittance to the Norfolk City Jail (id. Encl. A); (3) Roberts's medical records from the Norfolk City Jail (id. Encl. B); and, (4) an affidavit of Defendant Johnson (Mem. Supp. Mot. Summ. J. Ex. 2, ECF No. 40-2 ("Second Johnson Aff.")).[7]

         In response, Roberts submitted two of his own affidavits (Mem. Opp'n Mot. Summ J. Ex. 2, ECF No. 37-2 ("Roberts Aff."); Mem. Opp'n Mot. Summ. J. Ex. 1, ECF No. 44-1 ("Second Roberts Aff.")); and the affidavit of a fellow inmate, Travis Brown (Mem. Opp'n Mot. Summ. J. Ex. 3, ECF No. 37-3 ("Brown Aff.")).[8] As a 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 facts offered by affidavit or sworn declaration must also be in the form of admissible evidence. See Fed. R. Civ. P. 56(c)(4). In this regard, the statement in the affidavit or sworn declaration "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." 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) (internal citations omitted). As discussed below, the material facts are largely undisputed. To the extent that Roberts's affidavit contains hearsay, the Court will not consider it here in its assessment of the propriety of the grant of summary judgment.[9] To the extent that Roberts uses his affidavit to generally deny facts in Defendants' affidavits and his medical records without any factual support for his statements other than bald assertions or conclusions, these denials fail to present a genuine issue for trial.[10]

         In light of the foregoing principles and submissions, the following facts are established for the purposes of the Motions for Summary Judgment. All permissible inferences are drawn in favor of Roberts.


         A. Medical History Prior to May 4, 2015 Incident

         Roberts arrived at the Norfolk City Jail on or around April 16, 2015. (Davis Aff. ¶ 1.) Prior to his detention in the Norfolk City Jail, Roberts had been seen at Sentara Norfolk General Hospital, on April 16, 2015, for complaints of right knee pain and right chest pain after being sprayed with mace and tackled by police when resisting arrest. (Id. ¶ 2; ECF No. 40-1, at 10.) Roberts's chest x-rays were unremarkable. (Davis Aff. ¶ 2; ECF No. 40-1, at 20.) The hospital provided him with Tylenol and discharged him to police custody. (Davis Aff. ¶ 2.)

         That same day, Roberts was seen by medical staff at the jail for his receiving screening. Medical staff recommended that Roberts be placed in special needs housing. (Id. ¶ 3; ECF No. 40-1, at 45, 47.) On April 20, 2015, Roberts underwent an initial evaluation for asthma and hypoglycemia. (Davis Aff. ¶ 4; ECF No. 40-1, at 48.) Roberts indicated that he had pain on his "upper right chest side." (Second Roberts Aff. ¶ 38.) Upon physical examination, Roberts was found to have chest wall and shoulder tenderness to palpitation. (Davis Aff. ¶ 4; ECF No. 40-1, at 50.)[12] Defendant Johnson ordered Roberts to take ibuprofen for "[c]hest and shoulder pain." (ECF No. 40-1, at 52; Davis Aff. ¶ 4.)

         On April 21, 2015, Roberts complained to medical that he was experiencing pain after doing push-ups. (Davis Aff. ¶ 5; ECF No. 40-1, at 54; Second Roberts Aff. ¶ 40.) Roberts indicated that he was not taking the prescribed ibuprofen in the morning because of "sleeping" and that he only had pain at night. (Davis Aff. ¶ 5; ECF No. 40-1, at 54.) Roberts was encouraged to follow Defendant Johnson's instructions.

         On April 25, 2015, Roberts presented for a sick call with complaints of right rib pain. (Davis Aff. ¶ 6; ECF No. 40-1, at 55.) Roberts presented with a bony abnormality on the right side of his ribs, was prescribed Tylenol, and was referred to the physician. (Davis Aff. ¶ 6; ECF No. 40-l, .at 55.) Roberts was advised to reduce his physical activity. (ECF No. 40-1, at 61.)

         On April 30, 2015, Defendant Davis examined Roberts for complaints of a "knot" in his right chest due to falling on April 16, 2015 when his chest hit the curb. (Davis Aff. ¶ 7; ECF No. 40-1, at 64.) Roberts reported that he had only recently noticed the knot in this area and admitted that he had been doing push-ups recently. (Davis Aff. ¶ 7; ECF No. 40-1, at 64.)

         Defendant Davis noted that a chest x-ray taken at the emergency room was negative and prescribed ibuprofen. (Davis Aff. ¶ 7; ECF No. 40-1, at 64.)

         B. Facts Pertaining to May 4, 2015 Incident

         On May 4, 2015, Defendant Satterthewaite was working on Post 8A. (Satterthewaite Aff. ¶ 2.) Roberts was waiting to be seen by medical, and he started talking with approximately six other inmates. (Roberts Aff. ¶ 2, ECF No. 37-2.) Defendant Satterthewaite came out of his sitting area and asked the inmates to keep the noise down. (Satterthewaite Aff. ¶ 2; Roberts Aff. ¶ 3.) Roberts "started singing quietly to [him]self and talking with the other inmates." (Roberts Aff. ¶ 4.)[13] Defendant Satterthewaite came back out and asked Roberts to follow him. Defendant Satterthewaite ordered Roberts to go into Cell 8L02. (Satterthewaite Aff. ¶ 3.) Roberts avers that "Deputy Satterthewaite told [him] to make an unusual right turn where 8L01 through 8L03 was located." (Roberts Aff. ¶ 7.) Roberts walked past Cell 8L02. (Roberts Aff. ¶8; Satterthewaite Aff. ¶ 3.) Roberts contends he walked past Cell 8L01 and Cell 8L02 "because [he] did not know where [he] was going." (Roberts Aff. ¶ 8.) When Roberts walked past Cell 8L02 and got to Cell 8L03, Deputy Satterthewaite "grabbed [him] by [his] collar and [his] right shoulder, yanking [him] backwards very hard." (Id. ¶ 9.)[14] Defendant Satterthewaite directed Roberts into Cell 8L02. (Satterthewaite Aff. ¶ 3.) According to Roberts,

I then ask Deputy Satterthewaite very loudly, "why are you grabbing me" and then he pushed me into cell 8L02 while stating "get your ass in there." While catching my balance, I walked further into the cell asking, "why are you pushing me in here." Satterwthewaite then stated, "cause you run you[r] fuckin' mouth too much." I then stated, "but I didn't do nothing." As Deputy Satterthewaite closed the door, I started yelling for a floor Lieutenant and stated "dude, you put your fucking hands on me."

(Roberts Aff. ¶¶ 11-15 (paragraph numbers omitted).)[15] Roberts remained in Cell 8L02 for approximately ten to fifteen minutes until he was taken back to his cell block. (Satterthewaite Aff. ¶ 3.)

         That same day, Roberts spoke with Captain Toczek while he was making rounds. (Roberts Aff. ¶ 25; Toczek Aff. ¶ 2.) Roberts indicated that Captain Toczek should speak with Deputy Satterthewaite about the incident. (Toczek Aff. ¶ 2.) Roberts did not complain of any injury from the incident at that time.[16]

         On May 8, 2015, Roberts decided to file a complaint against Defendant Satterthewaite alleging that he had grabbed him by his jumpsuit. (Id. ¶ 3.) Captain Toczek informed Internal Affairs of Roberts's complaint. (Id.) Informal Affairs conducted an investigation and found Roberts's complaint was not supported by the facts. (Id.)

         C. Roberts's Medical Record after Incident

         On May 6, 2015, Roberts had a scheduled physical and he "spoke to Defendant . . . Johnson about my injury to my right shoulder with pain and he told me that I would have to put in a sick call request because I was only being seen for a physical today." (Roberts Aff. ¶ 41.) On May 7, 2015, Roberts told a nurse through his cell bars that he was having "serious pain in my right shoulder, " and the nurse told him to put in a sick call request. (Id. ¶ 42.)

         On May 9, 2015, Roberts presented to medical with complaints of injury to his right arm and chest. Roberts indicated that he had been injured in his right arm and chest during his arrest and stated that "he possibly reinjured [himself] during [the] incident on May 4th [where] he was grabbed by neck and shoulders." (ECF No. 40-1, at 66; Davis Aff. ¶ 8.) The nurse noted that Roberts was having difficulty raising his arm completely above his head and that he complained of pain only with rotational movement. (ECF No. 40-1, at 67-68.)[17] The nurse provided Roberts with instructions regarding proper lifting techniques and he was given a temporary activity restriction. (Mat 24.) Roberts was referred to follow up with the doctor. (Id.)

         On May 13, 2015, Roberts "asked the nurse through the cell bars about me seeing the Doctor and that I was hurting really bad." (Roberts Aff. ¶ 45.) The nurse told him that he was on the referral list and to "have patience." (Id. ¶ 46.) That same day, Roberts was seen by a mental health professional for complaints of "depression;" however he informed the examiner that he did "not want to do talking therapy or take meds." (ECF No. 40-1, at 26.)

         On May 22 and 23, 2015, Roberts again told the nurse that he had been scheduled for a referral but had not been called yet. (Roberts Aff. ¶ 47.) Roberts told the nurse he "was having serious pain in my right shoulder with tingling in the elbow." (A/.)[18] The nurse took his name down to see if he was on the list. (Id. ¶ 48.) On May 27 and 28, 2015, Roberts sent communication forms to medical asking about the delay because he "was in pain." (Id. ¶ 49.)[19] The communication forms ...

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