United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge.
Harper, a Virginia inmate proceeding pro se and
in forma pauperis, has filed this 42 U.S.C.
§ 1983 action. The action proceeds on Harper's
Particularized Complaint. (ECF No. 14.) Harper's
Particularized Complaint raised the following claims for
Claim One: Nurse Jones (a) acted negligently and (b) violated
Harper's rights under the Eighth Amendment by providing
Harper the wrong medication on June 25, 2013. (Id.
Claim Two: Nurse Hamlin (a) acted negligently, (b) violated
Harper's rights under the First and Fourteenth Amendments by
"respond[ing] to Harper's informal complaint in an
unprofessional manner, " and (c) violated Harper's
rights under the Eighth Amendment by failing "to take
the proper precautions [for] treating Harper."
(Id. at 6.)
Claim Three: Officers Matheny, Quintana, and Crowell (a)
acted negligently and (b) violated Harper's rights under
the Eighth Amendment by delaying their response to
Harper's cellmate's request that Harper receive
medical attention. (Id.)
Claim Four: Sergeants Dugger and Lowe violated Harper's
rights under the Eighth and Fourteenth Amendments by delaying
their response to Defendants Matheny, Quintana, and Crowell
regarding Harper's need for medical attention.
(Id. at 7.)
Claim Five: Dr. Gore (a) acted negligently and (b) violated
Harper's rights under the Eighth Amendment by failing to
refer Harper to a specialist. (Id. at 8.)
seeks damages for relief. (Id. at 10-11.)
Memorandum Opinion and Order entered on November 10, 2016,
the Court granted in part and denied in part the Motion to
Dismiss filed by Defendants Jones, Hamlin, and Gore, and
dismissed Claims One (b), Two (b), Two (c), and Five (b) .
Harper v. Gore, No. 3:15CV303, 2016 WL 6662697, at
*7 (E.D. Va. Nov. 10, 2016). The Court also dismissed all
claims against Defendants Quintana and Dugger without
prejudice pursuant to Rule 4(m) of the Federal Rules of Civil
matter is before the Court on the Motion for Summary Judgment
(ECF No. 52) filed by Defendants Matheny, Crowell, and Lowe
(collectively, "Defendants'')- Despite receiving
Roseboronotice, Harper has not responded to the
Motion for Summary Judgment. For the reasons stated below,
the Court will grant the Motion for Summary
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). 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."7 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 (1871)). “[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 . . .
ask the Court to dismiss Harper's constitutional claims
because, inter alia, Harper failed to exhaust his
administrative remedies as required by 42 U.S.C. §
1997e(a). Because the exhaustion of administrative remedies
is an affirmative defense, Defendants bear the burden of
pleading and proving lack of exhaustion. Jones v.
Bock, 54 9 U.S. 199, 216 (2007) . In support of their
Motion for Summary Judgment, Defendants submit: (1) the
affidavit of S. Tapp, the Institutional Ombudsman at
Greensville Correctional Center (“GCC") (Mem.
Supp. Mot. Summ. J. Attach. 1 ("Tapp Aff."), ECF
No. 53-1); (2) a copy of Virginia Department of Corrections
("VDOC") Operating Procedure § 866.1
(id. Encl. A ("Operating Procedure §
866.1")); and, (3) copies of grievances submitted by
Harper (id. Encl. B).
did not respond to the Motion for Summary Judgment, thereby
failing to cite to any evidence that he wishes the Court to
consider in opposition. See Fed.R.Civ.P. 56(c)(3)
(emphasizing that Mt]he court need consider only the cited
materials7' in deciding a motion for summary judgment).
Harper's Particularized Complaint is sworn to under
penalty of perjury. Harper also attached an Affidavit to his
Particularized Complaint (Part. Compl. Attach. 1
("Harper Aff."), ECF No. 14-1) .
light of the foregoing submissions, the following facts are
established for the Motion for Summary Judgment. The Court
draws all permissible inferences in favor of Harper.
Facts Underlying ...