United States District Court, E.D. Virginia, Richmond Division
Hannah Lauck United States District Judge
Roy Chapman, a Virginia inmate proceeding pro se and
in forma pauperis, filed this 42 U.S.C. § 1983
action. The matter is before the Court on the
Motion for Summary Judgment (ECF No. 112) filed by Defendants
G. Bacon, C. Townes, and Green. 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,  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.
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 due process claim against Slaw) without
prejudice,  dismissed Claim 7(b) (Chapman's Eighth
Amendment claim against Slaw) with prejudice, and
dismissed Claim 8 against Woodson with prejudice.
the entry of the March 17, 2016 Memorandum Opinion and Order,
Chapman filed a Second Amended Complaint, (ECF No. 79),
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."
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
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
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 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."
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.
Summary Judgment Standard
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.
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).
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).
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). 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
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.
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.
Summary of Pertinent Facts
Facts Pertaining to the Conflict Between Chapman
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.)
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.)
Facts Pertaining to Any Violent Tendencies Displayed by
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.)
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 ...