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Barner v. Allen

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

September 6, 2017

SGT.B. ALLEN, et al, Defendants.


          M. Hannah Lauck United States District Judge

         Daquan Charlie Barner, a Virginia inmate proceeding pro se and in forma pauperis, filed this civil action under 42 U.S.C. § 1983.[1] The action proceeds on Barner's Particularized Complaint ("Complaint, " ECF No. 23.)[2] The Court has construed Barner's Complaint to raise the following claim for relief:

Claim One: Sgt. B. Allen[3] violated Barner's rights under the Eighth Amendment[4] when she failed to protect Barner from an assault by Devin Rawls. (Id. at 1-2.)

         By 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.)

         The 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, [5] 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 administrative remedies.

         I. 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, 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. 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, 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).

         Defendant 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. 42-4).

         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. 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.

         In 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.

         II. Relevant Facts

         A. Facts Underlying Barner's Claim

         On January 11, 2015, inmate Devin Rawls was added to Bamer's Keep Separate List at SRJ. (Keep Separate List at 33.)[6]

         On 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 ...

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