United States District Court, E.D. Virginia, Richmond Division
A. Gibney, Jr. Judge
Roberts, a former Virginia detainee proceeding pro se,
filed this 42 U.S.C. § 1983 action in which he alleges
Defendants violated his rights under the Eighth
Amendmentand Fourteenth Amendment. 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.)
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.)
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.
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
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.
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).
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
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
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.")). 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. 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
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.
RELEVANT FACTS ESTABLISHED FOR PURPOSES OF SUMMARY
Medical History Prior to May 4, 2015 Incident
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.)
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.) Defendant Johnson ordered Roberts to
take ibuprofen for "[c]hest and shoulder pain."
(ECF No. 40-1, at 52; Davis Aff. ¶ 4.)
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
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.)
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.)
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.)
Facts Pertaining to May 4, 2015 Incident
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.) 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.) 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).) Roberts remained in Cell 8L02 for
approximately ten to fifteen minutes until he was taken back
to his cell block. (Satterthewaite Aff. ¶ 3.)
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.
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
Roberts's Medical Record after Incident
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.)
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.) 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.)
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.)
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/.) 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.) The communication forms ...