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Harper v. Gore

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

June 13, 2017

LINWOOD HARPER, Plaintiff,
v.
DR. GORE, et al., Defendants.

          MEMORANDUM OPINION

          Robert E. Payne, Senior United States District Judge

         Linwood Harper, a Virginia inmate proceeding pro se and in forma pauperis, has filed this 42 U.S.C. § 1983 action.[1] The action proceeds on Harper's Particularized Complaint. (ECF No. 14.) Harper's Particularized Complaint raised the following claims for relief:

Claim One: Nurse Jones (a) acted negligently and (b) violated Harper's rights under the Eighth Amendment[2] by providing Harper the wrong medication on June 25, 2013, (Id. at 5.)[3]
Claim Two: Nurse Hamlin (a) acted negligently, (b) violated Harper's rights under the First[4] and Fourteenth[5] 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.)

Harper seeks damages for relief. (Id., at 10-11.)

         By 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 Procedure. Id.

         The matter is before the Court on the Motion for Summary Judgment (ECF No. 53) filed by Defendants Nurse Jones, Nurse Hamlin, and Dr. Gore (collectively, "Defendants").[6] Despite receiving Roseboro[7] notice, Harper has not responded to the Motion for Summary Judgment. For the reasons stated below, the Court will grant the Motion for Summary Judgment.

         I. STANDARD FOR SUMMARY JUDGMENT

         Summary 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)).

         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 (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 . . . .") .

         In support of their Motion for Summary Judgment, Defendants submit: (1) a declaration from Nurse Jones (Mem. Supp. Mot. Summ. J. Ex. 1 ("Jones Decl."), ECF No. 48-1); (2) copies of Harper's medical records (id. Ex. 1-A ("Medical Records"), ECF Nos. 48-2 through 48-4);[8] (3) a copy of Virginia Department of Corrections ("VDOC") Operating Procedure § 866.1, effective July 1, 2013 (id. Ex. 2 ("July 1, 2013 Operating Procedure § 866.1"), ECF No. 48-5); (4) a copy of VDOC Operating Procedure § 866.1, effective December 1, 2010 (id. Ex. 3 ("December 1, 2010 Operating Procedure § 866.1"), ECF No. 48-6); and, (5) copies of grievances and informal complaints submitted by Harper (id. Ex. 4, ECF No. 48-7).

         Harper 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 " [t] he court need consider only the cited materials" 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 ("Harper Aff., " ECF No. 14-1).

         In light of the foregoing submissions, the following facts are established for the Motion for Summary Judgment. The Court ...


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