United States District Court, E.D. Virginia, Richmond Division
Hannah Lauck United States District Judge
Charlie Barner, a Virginia inmate proceeding pro se
and in forma pauperis, filed this civil action under
42 U.S.C. § 1983. The action proceeds on Barner's
Particularized Complaint ("Complaint, " ECF No.
The Court has construed Barner's Complaint to raise the
following claim for relief:
Claim One: Sgt. B. Allen violated Barner's rights under the
Eighth Amendment when she failed to protect Barner from an
assault by Devin Rawls. (Id. at 1-2.)
Memorandum Opinion and Order entered on May 19, 2017, the
Court denied the Motion to Dismiss filed by Defendant Allen.
Barrier v. Allen, No. 3:15CV648, 2017 WL 2221703, at
*4 (E.D.Va.May 19, 2017.)
matter is now before the Court on the Motion for Summary
Judgment filed by Defendant Allen. (ECFNo.41.) Barner has
filed a Response. (ECFNo.47.) Defendant Allen has filed a
Reply. (ECFNo. 46.) Barner has submitted a Surreply. (ECFNo.
49.) Even though Barner filed his Surreply without first
obtaining leave from the Court to do so,  given his pro
se status, the Court will consider Barner's
Surreply in its analysis of the Motion for Summary Judgment.
For the reasons stated below, Defendant Allen's Motion
for Summary Judgment will be GRANTED, and Barner's claim
will be DISMISSED because he failed to exhaust his
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, No. 3:13cv825, 2016 WL 3653878, *4 (E.D. Va. June
30, 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, Ml 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).
Allen asks the Court to dismiss Barner's claim because
Barner 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,
Defendant Allen bears the burden of pleading and proving lack
of exhaustion. Jones v. Bock, 549 U.S. 199, 216
(2007). In support of her Motion for Summary Judgment,
Defendant Allen submits: (1) a copy of the Southside Regional
Jail Inmate Handbook (Mem. Supp. Mot. Summ. J. Attach. 1
("Inmate Handbook"), ECF No. 42-1); (2) a copy of
Barner's "keep separate" list (id.
("Keep Separate List")); (3) copies of grievances
submitted by Barner (id. ("Grievance
Material")); (4) copies of the Incident Reports
regarding Devin Rawls' assault on Barner (id.
("Incident Reports")); (5) copies of Barner's
medical records (id. ("Medical Records"));
(6) an affidavit from Lieutenant Michael Strickland, the
acting Records Manager at SRJ (id Attach. 2
("Strickland Aff."), ECF No. 42-2); (7) Defendant
Allen's affidavit (id Attach. 3 ("Allen
Aff."), ECF No. 42-3); and, (8) an affidavit from
Captain Anthony Johnson, the acting Chief of Security at SRJ
(id Attach. 4 ("Johnson Aff."), ECF No.
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. With his Response,
Barner provided no affidavits but did submit copies of three
grievances. (PL's Resp. Exs. 1 through 3, ECF No. 47-1.)
Moreover, while Barner signed his Complaint "under
penalty of perjury, " (Compl. 3), he declared "that
the facts and the law in the foregoing particularized
complaint are true and correct according to the best of my
knowledge and belief." (Compl. 3.) Such a statement
fails to transform the statements in the Complaint into
admissible evidence. Hogge v. Stephens, No.
3:09CV582, 2011 WL2161100, 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 Fed.Appx. 270, 274 (4th Cir. 2001))).
Therefore, the matters referred to as "on information
and belief will not be afforded evidentiary effect.
Accordingly, the only evidence provided by Barner in
opposition to the Motion for Summary Judgment are the copies
of the three grievances attached to his Response.
light of the foregoing principles and submissions, the
following facts are established for the purposes of the
Motion for Summary Judgment. All permissible inferences are
drawn in favor of Barner.
Facts Underlying Barner's Claim
January 11, 2015, inmate Devin Rawls was added to Bamer's
Keep Separate List at SRJ. (Keep Separate List at
January 25, 2015, Defendant Allen "was working as a
booth officer in the control room that oversees ingress and
egress into certain housing areas at the Jail, including
HA-300 and HA-400." (Allen Aff. ¶ 5.) On that date,
Rawls "was housed in ...