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Chapman v. Bacon

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

May 19, 2017

LOUIS ROY CHAPMAN, Plaintiff,
v.
G. BACON, et al., Defendants.

          MEMORANDUM OPINION

          M. Hannah Lauck United States District Judge

         Louis Roy Chapman, a Virginia inmate proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983 action.[1] The matter is before the Court on the Motion for Summary Judgment (ECF No. 112) filed by Defendants G. Bacon, C. Townes, and Green.[2] Chapman has filed a Response. (ECF No. 121.) Defendants have filed a Reply. (ECF No. 122.) Chapman has submitted a Surreply. (ECF No. 123.) Even though Chapman filed his Surreply without first obtaining leave from the Court to do so, [3] given his pro se status, the Court will consider Chapman's Surreply in its analysis of the Motion for Summary Judgment. For the reasons that follow, the Court will DENY the Motion for Summary Judgment.

         I. Procedural History

         By Memorandum Opinion and Order entered on March 17, 2016, the Court granted the Motions to Dismiss for Failure to State a Claim filed by Defendants Slaw and Woodson and the Motion to Dismiss for Lack of Jurisdiction filed by the Commonwealth of Virginia. Chapman v. Bacon, No. 3:14CV641, 2016 WL 1071014, at *7 (E.D. Va. Mar. 17, 2016). Specifically, the Court dismissed Claim 7(a) (Chapman's Fourteenth Amendment[4] due process claim against Slaw) without prejudice, [5] dismissed Claim 7(b) (Chapman's Eighth Amendment[6] claim against Slaw) with prejudice, and dismissed Claim 8 against Woodson with prejudice. Id.

         Following the entry of the March 17, 2016 Memorandum Opinion and Order, Chapman filed a Second Amended Complaint, (ECF No. 79), [7] wherein he sought to correct some of the deficiencies noted in the March 16, 2016 Memorandum Opinion and Order. Chapman's Second Amended Complaint raised the following claims for relief:

Claim 1 Defendant G. Bacon violated Chapman's rights under the Eighth Amendment by threatening "to lock Chapman in punitive segregation if he told anyone that inmate Marcus Gunn assaulted him. This chilling on Chapman led to a vicious assault by Gunn causing Chapman physical injury." (Second Am. Compl. 2.)
Claim 2 Defendant C. Townes violated Chapman's rights under the Eighth Amendment by failing to protect Chapman from Gunn's assault. (Id.)
Claim 3 Sergeant Ponton violated Chapman's rights under the Eighth Amendment because, as a supervisor, "he had actual and constructive knowledge of the imminent danger of leaving Chapman in the cell with inmate Marcus Gunn to be assaulted causing physical injury to Chapman." (Id.)
Claim 4 Defendant Green violated Chapman's rights under the Eighth Amendment by failing to protect Chapman from Gunn's assault "after she was notified by Sergeant G. Bacon that Chapman was in imminent danger from his cell partner Marcus Gunn." (Id.)
Claim 5 Defendant Cooper violated Chapman's rights under the Eighth and Fourteenth Amendments by agreeing with others "to approve the overt act of Cooper writing a false charge of fighting with anyone and false imprisonment of Chapman." (Id.)
Claim 6 Defendant Stith violated Chapman's rights under the Fifth, Eighth and Fourteenth Amendments by "sign[ing] off on a false charge written by Officer J. Cooper for fighting with anyone and falsely imprisoned Chapman." (Id.)
Claim 7(a) By falsely keeping Chapman in punitive segregation, Defendant Slaw violated Chapman's rights under the Fourteenth Amendment. (Id. at 3.)
Claim 8 Defendant C. Jones violated Chapman's rights under the First Amendment[8] and the Fourteenth Amendment by failing "to process valid complaints, " by failing "to give tracking numbers, " and by "respond[ing] to grievance[s] concerning her (Jones)" in violation of institutional procedures. (Id.)
Claim 9 Defendants Jane Doe and John Doe "intentionally li[ed], mis[led], and [gave] false information concerning the assault on Chapman to the Commonwealth's Attorney of Brunswick County, Virginia, Lezlie Green." (Id.)

         On May 2, 2016, Defendants Bacon, Cooper, Green, Jones, Stith, and Townes filed a Motion to Dismiss for Failure to State a Claim. (ECF No. 80.) On May 5, 2016, Defendant Slaw filed a Motion to Dismiss for Failure to State a Claim. (ECF No. 82.) By Memorandum Opinion and Order entered on February 10, 2017, the Court dismissed all claims against Defendant Ponton without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, granted the Motion to Dismiss for Failure to State a Claim filed by Defendant Slaw, and granted in part and denied in part the Motion to Dismiss for Failure to State a Claim filed by Defendants Bacon, Townes, Green, Cooper, Stith, and Jones. Chapman v. Bacon, No. 3:14CV641, 2017 WL 559703, at *15 (E.D. Va. Feb. 10, 2017). The Court dismissed Claims 5, 6, 7(a), 8, and 9 with prejudice. Id. The action proceeds on Claims 1, 2, and 4.

         II. Summary Judgment Standard

         Summary judgment under Rule 56 is appropriate only when the Court, viewing the record as a whole and in the light most favorable to the nonmoving party, determines that there exists no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). "A fact is material if the existence or non-existence thereof could lead a jury to different resolutions of the case." Thomas v. FTS USA, LLC, 193 F.Supp.3d 623, 628 (E.D. Va. 2016) (citing Liberty Lobby, 477 U.S. at 248). Once a party has properly filed evidence supporting the motion for summary judgment, the nonmoving party may not rest upon mere allegations in the pleadings, but instead must set forth specific facts illustrating genuine issues for trial. Celotex Corp., 477 U.S. at 322-24. These facts must be presented in the form of exhibits and sworn affidavits. Fed.R.Civ.P. 56(c).

         A court views the evidence and reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. Liberty Lobby, 477 U.S. at 255. Whether an inference is reasonable must be considered in conjunction with competing inferences to the contrary. Sylvia Dev. Corp. v. Calvert Cty., 48 F.3d 810, 818 (4th Cir. 1995). Nonetheless, the nonmoving "party is entitled 'to have the credibility of his evidence as forecast assumed.'" Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990) (en banc) (quoting Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)). Ultimately, the court must adhere to the affirmative obligation to bar factually unsupportable claims from proceeding to trial. Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (citing Celotex Corp., 477 U.S. at 323-24). The ultimate inquiry in examining a motion for summary judgment is whether there is "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (citations omitted).

         In support of their Motion for Summary Judgment, Defendants submit: (1) Chapman and Marcus Gunn's bed cards (Mem. Supp Mot. Summ. J. Attach. 1, ECF No. 113-1); (2) a declaration from Diana Whitfield, a Gang Investigator at LVCC (id. Attach. 2 ("Whitfield Decl."), ECF No. 113-2); (3) a declaration from Defendant Townes (id. Attach. 3 ("Townes Decl."), ECF No. 113-3); (4) a declaration from Belinda Bullock, a Classification Administrator at LVCC (id. Attach. 4 ("Bullock Decl."), ECF No. 113-4); (5) Marcus Gunn's Offender Cell Classification sheet, dated March 11, 2011 (Bullock Decl. Ex. A, ECF Nos. 113-4 and 113-5); (6) a declaration from Defendant Bacon (Mem. Supp. Mot. Summ. J. Attach. 6 ("Bacon Decl."), ECF No. 113-6); (7) photographs of Chapman's injury (id. Attach. 7, ECF No. 113-7); (8) a typed statement dated February 20, 2014 from Bernice Newcomb, a former Counselor at LVCC (id. Attach. 8 (ECF No. 113-8); a declaration from Newcomb, dated March 6, 2017 with the February 20, 2014 typed statement attached (id. Attach. 9 ("Newcomb Decl.") and Ex. A, ECF No. 113-9); and, (10) a declaration from Defendant Green (Mem. Supp. Mot. Summ. J. Attach. 10 ("Green Decl."), ECF No. 113-10).

         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 Court previously warned Chapman that:

[T]he Court will not consider as evidence in opposition to any motion for summary judgment a memorandum of law and facts that is sworn to under penalty of perjury. Rather, any verified allegations must be set forth in a separate document titled "Affidavit" or "Sworn Statement, " and reflect that the sworn statements of fact are made on personal knowledge and that the affiant is competent to testify on the matter stated therein. See Fed. R. Civ. P. 56(c)(4).

(ECF No. 14, at 2-3.) Chapman submitted an Affidavit with his Response. (ECF No. 121, at 35-43.) Chapman also submitted copies of his emergency grievance and offender request forms (Id. at 44-50); a copy of the January 30, 2014 Incident Statement (id. at 80); a copy of his medical records from January 30, 2014 (id at 88); and, a copy of Marcus Gunn's January 31, 2014 Disciplinary Offense Report prepared by Defendant Bacon (id. at 89-91).[9] While the Court doubts that some of these exhibits constitute admissible evidence, Defendants have not objected to their admissibility. See Fed. R. Civ. P. 56(c)(2) ("A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence."); see Ridgell v. Astrue, No. DKC 10-3280, 2012 WL 707008, at *9 (D. Md. Mar. 2, 2012) (noting that "the objection [now] contemplated by [Rule 56(c)(2)] is not that the material 'has not' been submitted in admissible form, but that it 'cannot' be" (quoting Foreword Magazine, Inc. v. OverDrive, Inc., No. 1:10-cv-1144, 2011 WL 5169384, at *2 (W.D. Mich. Oct. 31, 2011))). Accordingly, the Court will consider these submissions for purposes of the Motion for Summary Judgment.

         Additionally, in his Second Amended Complaint, Chapman states: "I, Louis Chapman, state that I am the petitioner in this action and I know the content of the above complaint; that it is true of my own knowledge, except as to those matters that are stated to be based on information and belief and as to those matters, I believe them to be true-----I declare under penalty of perjury the foregoing to be true and accurate." (Second Am. Compl. 37-38.) Such a statement fails to transform the statements in the Second Amended Complaint into admissible evidence. Hogge v. Stephens, No. 3:09CV582, 2011 WL 2161100, at *2-3 & n.5 (E.D. Va. June 1, 2011) (treating statements sworn to under penalty of perjury, but made upon information and belief as "mere pleading allegations" (quoting Walker v. Tyler Cty. Comm 'n, 11 F.App'x 270, 274 (4th Cir. 2001))), aff'd, 469 F.App'x 160 (4th Cir. 2012). Therefore, the matters referred to as "on information and belief will not be afforded evidentiary effect.

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

         III. Summary of Pertinent Facts

         A. Facts Pertaining to the Conflict Between Chapman and Gunn

         On December 10, 2013, Chapman's cell mate, Marcus Gunn, knocked Chapman "back into the metal wall desk[, ] hurting and bruising his back." (Second Am. Compl. ¶ 3; see ECF No. 121, at 36.) On December 18, 2013, "Gunn put his arm and hand on Chapman's chest to keep him from leaving his cell." (Second Am. Compl. ¶ 4; see ECF No. 121, at 36.)

         On January 30, 2014, Chapman asked Gunn "to turn down his CD player so [Chapman] could focus on reading his legal material. Gunn was playing the CD player through his TV speaker." (Second Am. Compl. ¶ 2; see ECF No. 121, at 35.) In response, Gunn kicked Chapman in the face and then began punching Chapman. (Second Am. Compl. ¶ 2; see ECF No. 121, at 35.) "Chapman did NOT fight Gunn." (Second Am. Compl. ¶ 2; see ECF No. 121, at 35.) "Chapman was bleeding into his left eye, down his face onto his shirt and undershirt, from the cut put there by Gunn with his boot." (Second Am. Compl. ¶ 2; see ECF No. 121, at 35.) Chapman was able to ask the control booth officer to call medical. (Second Am. Compl. ¶ 2; see ECF No. 121, at 35.) Chapman contends that, "Marcus Gunn, a known racist, should have never been put in the same cell as Chapman, an elderly white man." (Second Am. Compl. 1154.)

         B. Facts Pertaining to Any Violent Tendencies Displayed by Gunn

         "Every inmate at LVCC is given a 'cell classification' assessment as part of their initial intake at the facility." (Bullock Decl. ¶ 5.) This assessment includes, inter alia, a "review of offender history of violent or assaultive behavior, both before and during incarceration." (Id.) "As a result of this assessment, the offender receives a cell classification score." (Id.)

         On March 25, 2011, Belinda Bullock conducted Gunn's classification assessment. (Id. Ex. A.) She indicated that Gunn "exhibit[ed] none of the factors indicative of violent or assaultive propensities." (Bullock Decl. ¶ 8; see Id. Ex. A.) Gunn was assigned a score of III, indicating that he has "[n]o violent and/or assaultive behaviors." (Id. Ex. A.) "From the date of Mr. Gunn's initial intake at LVCC, March 25, 2011 to January 29, 2014 ..., Mr. Gunn was disciplined on four occasions: On September 18, 2012; March 30, 2013; August ...


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