United States District Court, E.D. Virginia, Richmond Division
MARINOS N. GELARDOS, Plaintiff,
CHARLES CAMPBELL, et al., Defendants.
MEMORANDUM OPINION (GRANTING MOTION FOR SUMMARY
E. HUDSON UNITED STATES DISTRICT JUDGE
N. Gelardos, a Virginia inmate proceeding pro se and
in for ma pauperis, filed this 42 U.S.C. § 1983
action. The Court construes Gelardos's
Complaint to assert the following claims:
One: Defendant Campbell violated Gelardos's Eighth
Amendment rights when he:
(a) discontinued Gelardos's medications for nerve
disorder, pain, and gastroesophageal reflux disease
("GERD") (Compl. ¶¶ 10-15, ECF No. 1);
(b) failed to administer injections for soft tissue damage in
Gelardos's knees (id. ¶ 21(b)); and,
(c) failed to refer Gelardos to specialists for his medical
issues (id. ¶ 36.)
Claim Two: Defendant Allen violated Gelardos's rights
under the Eighth Amendment by failing to refer him to
specialists for his medical issues. (Id.)
Claim Three: Defendant Allen violated Gelardos's right to
due process under the Fourteenth Amendment by failing to
adequately respond to his requests for medical services.
(Id. ¶ 23.)
Claim Four: Defendants Ray and Schilling violated
Gelardos's right to due process by "fail[ing] to
investigate [Gelardos's] health problems during the
exhaustive remedy process." (Id. ¶¶
Claim Five: Defendants Ray and Schilling violated
Gelardos's rights under the Eighth Amendment by
"overlooking the seriousness of [his] claims in the
exhaustive remedies." (Id. ¶ 38.)
seeks damages, as well as declaratory and injunctive relief.
(Id. at 5-6.)
Memorandum Opinion and Order entered on July 15, 2016, the
Court granted the Motion for Summary Judgment previously
filed by Defendants Ray and Schilling with respect to Claim
Four, but denied it without prejudice with respect to Claim
v. Campbell, No. 3:15CV183-HEH, 2016 WL 3876434, at *4
(E.D. Va. July 15, 2016). The Court directed Defendants Ray
and Schilling to resubmit a Motion for Summary Judgment
addressing Claim Five within thirty days. Id. By
Memorandum Opinion and Order entered on November 10, 2016,
the Court granted Defendants Ray and Schilling's renewed
Motion for Summary Judgment with respect to Claim Five.
Gelardos v. Campbell, No. 3:15CV183-HEH, 2016 WL
6662691, at *6 (E.D. Va. Nov. 10, 2016).
Campbell and Allen (collectively, "Defendants")
filed a Motion for Summary Judgment on December 6, 2016. (ECF
No. 50.) By Memorandum Order entered on February 13, 2017,
the Court denied their Motion without prejudice, noting that
"[a]lthough Defendants Campbell and Allen seek dismissal
of all of Gelardos's claims against them with prejudice,
they have inexplicably failed to address Claims Two and
Three, and this Court declines to do so in the first
instance." (ECF No. 55, at 2-3.) The Court directed
Defendants to resubmit their Motion for Summary Judgment
within thirty days.
matter is now before the Court on the Renewed Motion for
Summary Judgment filed by Defendants on March 2, 2017. (ECF
No. 57.) Gelardos has filed a Response. (ECF No. 60.) For the
reasons stated below, the Court will grant Defendants'
Motion for Summary Judgment.
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 Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). "[W]here the nonmoving part)' 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)).
support of their Motion for Summary Judgment, Defendants rely
upon the evidence they submitted in support of their previous
Motion for Summary Judgment. That evidence includes: (1) a
declaration from Defendant Campbell (Mem. Supp. Renewed Mot.
Summ. J. Attach. 1 ("Campbell Decl."), ECF No.
51-1); and, (2) copies of Gelardos's medical records
(id. Ex. 1-A ("Medical Records"), ECF No.
stage, the Court is tasked with assessing whether Gelardos
"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). Gelardos did not attach any supporting evidence to
his response to Defendants' Motion for Summary Judgment.
With respect to Gelardos's Complaint, a notary
public's seal appears on the sixth page; however, the
Complaint is not admissible for purposes of summary judgment
because Gelardos has not sworn to its contents under penalty
of perjury, and there is no indication that the notary public
administered an oath to Gelardos. See McCoy v.
Robinson, No. 3:08CV555, 2010 WL 3735128, at *2 (E.D.
Va. Sept. 22, 2010) (alterations in original) ("[M]erely
notarizing [a] signature does not transform a document into
[an] affidavit that may be used for summary judgment
purposes." (quoting Nissho-Iwai Am. Corp. v.
Kline, 845 F.2d 1300, 1306-07 (5th Cir. 1998))).
complete failure to present any admissible evidence to
counter Defendants' Motion for Summary Judgment permits
the Court to rely solely on Defendants' evidence in
deciding the Motion for Summary Judgment. See Forsyth v.
Ban; 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. The Court draws all permissible inferences in favor
arrived at St. Brides Correctional Center ("SBCC")
on April 7, 2014. (Campbell Decl. ¶ 5(b) (citing Medical
Records at 238).) Dr. Campbell saw Gelardos on April 8, 2014.
(Campbell Decl. ¶ 5(b) (citing Medical Records at 235).)
At that time, Dr. Campbell continued Gelardos on the
following medications: Gabapentin (Neurontin), Metformin,
Meloxicam, Cyclobenzaprine, ...