United States District Court, E.D. Virginia, Richmond Division
A. Gibney Jr.United States District Judge
Lee Hinton, a Virginia inmate proceeding pro se and
in forma pauperis, filed this 42 U.S.C. § 1983
action. Hinton contends that Defendant Dr. Daniel Calhoun
denied him adequate medical care during his incarceration in
the Lawrenceville Correctional Center ("LCC"). The
matter is before the Court on Defendant Calhoun's Motion
for Summary Judgment. (ECF No. 74.) Hinton has responded (ECF
No. 85), and Defendant Calhoun filed a Reply (ECF No. 84).
For the reasons that follow, the Motion for Summary Judgment
will be GRANTED.
SUMMARY OF RELEVANT ALLEGATIONS
the pendency of this litigation, Hinton has filed nearly
everything as a "Motion, " and has continuously
submitted procedurally improper filings with made-up titles.
Hinton's numerous submissions, including motions,
piecemeal complaints, and piecemeal responses to the
Defendant's dispositive motion have made the case
difficult to process and his claims difficult to discern. In
his operative Complaint (ECF No. 31),  Hinton contends
that Defendant Calhoun violated his rights under the Eighth
and Fourteenth Amendments because he was aware that Nurse
McCabe "gave Plaintiff... a contaminated needle that
gave Plaintiff the deadly Hepatitis C virus [and] then lied
and said Plaintiff got the virus from a tattoo." (Compl.
2.) Hinton also vaguely alleges, in sum, that "when
Defendant Dr. Calhoun knew Plaintiff got this deadly
Hepatitis C virus he has completely refused any medical
treatment and any medication to try and help the deadly
virus." (Id.) As discussed below, to the extent
these vague statements amount to claims for relief, they are
entirely refuted by the record before the Court.
SUMMARY JUDGMENT STANDARD
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)).
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
(citation omitted). "[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
support of his Motion for Summary Judgment, Defendant Calhoun
submits: (1) his own declaration (Mem. Supp. Mot. Summ. J.
Ex. A, ECF No. 75-1 ("Calhoun Decl.")); and, (2)
Hinton's extensive medical records during the relevant
period (id. Ex. B, ECF No. 75-2).
stage, the Court is tasked with assessing whether Hinton
"has proffered sufficient proof, in the form of
admissible evidence, that could carry the burden of
proof of his claim at trial." Mitchell v. Data Gen.
Corp., 12 F.3d 1310, 1316 (4th Cir. 1993) (emphasis
added). 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. In
response, Hinton submits a sworn document entitled
"Affidavit" (ECF No. 85-1), and several excerpts
from what appears to be an unidentified medical journal and
brochures (ECF Nos. 85-2 through 85-3).
facts offered by affidavit must be in the form of admissible
evidence. See Fed. R. Civ. P. 56(c). In this regard,
the statement in the affidavit or sworn statement "must
be made on personal knowledge . . . and show that the affiant
is competent to testify on the matters stated."
Fed.R.Civ.P. 56(c)(4). Summary judgment affidavits must also
"set out facts that would be admissible in
evidence." Id. Therefore, "summary
judgment affidavits cannot be conclusory or based upon
hearsay." Evans v. Techs. Applications & Serv.
Co., 80 F.3d 954, 962 (4th Cir. 1996) (citing
Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970, 975
(4th Cir. 1990); see also Md. Highways Contractors
Ass'n v. Maryland, 933 F.2d 1246, 1252 (4th Cir.
Affidavit, Hinton makes a number of statements that are of no
value in assessing the propriety of summary judgment.
Hinton's statements are either conclusory, immaterial, or
simply disagree with arguments made by Defendant
Calhoun. Hinton's conclusory and inadmissible
assertions will not be considered in evaluating the Motion
for Summary Judgment. The medical journal excerpts and
brochures with Hinton's edits also fail to constitute
admissible evidence. See Orsi v. Kirkwood, 999 F.2d
86, 92 (4th Cir. 1993) (citation omitted) (explaining that
"[i]t is well established that unsworn, unauthenticated
documents cannot be considered on a motion for summary
judgment."); Lee v. Gurney, No. 3:08CV161, 2009
WL 3208715, at *3 (E.D. Va. Sept. 30, 2009) (citations
omitted). Thus, these submissions are not entitled to further
consideration in assessing the propriety of summary judgment.
While Hinton also swore to the contents of his Complaint, his
Complaint again fails to constitute admissible
evidence. In light of the foregoing submissions and
principles, the following facts are established for the
purposes of the motion for summary judgment.
SUMMARY OF UNDISPUTED FACTS
Defendant Calhoun has been employed as an institutional
physician at LCC since July 2011 and has been practicing
medicine for thirty-nine years. (Calhoun Aff. ¶ 1.) On
the morning of April 15, 2015, Defendant Calhoun and Nurse
McCabe were working at LCC. (Id. ¶4.) Nurse
McCabe was responsible for that morning's diabetic call
during which diabetic inmates reported for glucose testing,
insulin, and other treatment as needed. (Id.) Hinton
was among the inmates who reported for diabetic call that
morning. (Id. ¶ 5.) Later that morning,
Defendant Calhoun learned that Nurse McCabe may have reused a
needle to administer insulin. (Id. ¶ 6.)
Defendant Calhoun was concerned that any cross-contamination
could place LCC's diabetic inmates at risk of contracting
infectious diseases and the medical staff were instructed to
obtain laboratory testing samples from the diabetic inmates
so medical staff "could obtain a baseline for monitoring
these inmates for infectious diseases." (Id.
¶ 7.) Medical staff obtained a laboratory testing sample
from Hinton approximately two hours after the morning
diabetic call and the sample was sent out for testing the
same day. (Id. ¶ 8.)
8, 2015, the medical staff at LCC received the test results
for Hinton. (Id. ¶ 9.) The test results
indicated that Hinton tested positive for Hepatitis B and C
antibodies. (Id.) On July 1, 2015, medical staff
obtained blood samples from Hinton and sent the samples out
for repeat testing. (Id. ¶ 10.) On July 7,
2015,  the laboratory again reported that Hinton
tested positive for both Hepatitis B and C antibodies.
(Id.) On July 14, 2015, medical staff obtained
additional samples from Hinton and sent the samples out for
testing to ascertain whether Hinton was positive ...