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Sparks v. Levin

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

May 31, 2018

L. AVA LEVIN, Defendant.


          M. Hannah Lauck United States Judge

         Clifton L. Sparks, a Virginia inmate proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983 action[1] in which he alleges that Defendant L. Ava Levin violated his Eighth Amendment rights.[2] This matter is before the Court on Defendant Levin's Motion for Summary Judgment. (ECF No. 25.) Defendant Levin provided Sparks with the appropriate Roseboro[3] notice for the Motion for Summary Judgment. (ECF No. 27) Nevertheless, Sparks has not filed a response in opposition. For the reasons stated below, Defendant Levin's Motion for Summary Judgment will be GRANTED.


         In his Complaint filed on March 29, 2017, [4] Sparks alleges the following:

Plaintiff is an older person who has sugar diabetes, and other medical ailments. These ailments require immediate care. Defendant Levin knew that Plaintiff needs medical care due to the chronic pain that Plaintiff suffers from each and every day.
Once Plaintiff was sent to Haynesville, he lodged sick-call slips, so that he could be seen by the medical department. However, it took a long time to walk to medical because of the pain and because Plaintiff has to use a cane. Plaintiff was finally seen by the Defendant, Doctor Levin. Each time Plaintiff would see him, Plaintiff would complain about pain, and how [his] shoes hurt his feet when walking. Defendant prescribed medication, however, the medication did not help, the nerve pain just got worse.
On or about February 6, 2017, the Defendant Mr. Levin had Plaintiff out to the hospital, VCU in Richmond. However, once at VCU, Plaintiff was seen by the doctor. Once all testing and examinations were complete, the outside doctor at VCU ordered that the Plaintiff receive [Naprosyn] for his pain. Most of Plaintiffs pain, comes from his lower back by way of his lower disc, and due to diabetic nerve pain in the bottom if his feet.
Respectfully, from that date, Plaintiff has not received any pain medication that would help including Defendant did not order the [Naprosyn] that was prescribed by the outside doctor from VCU. Plaintiff has explained that the pain is and was getting worse, but Defendant has not and will not order the right pain medication.

(Compl. 3-4.) The Court construes Sparks to raise the following claim for relief against Defendant Levin:

Claim One: Defendant Levin was deliberately indifferent to Sparks's pain by failing to provide Sparks with the pain medication prescribed by an outside doctor.

         Sparks seeks an unspecified amount of damages. (Id. at 5.)


         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 of informing the Court of the basis for the motion and identifying 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), (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 (quoting Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448 (1872)). "[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. Ban, 19 F.3d 1527, 1537 (5th Cir. 1994) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n.7 (5th Cir. 1992)).

         In support of his Motion for Summary Judgment, Defendant Levin has submitted: (1) his own declaration (Mem. Supp. Mot. Summ. J. Ex. 1 ("Levin Decl."), ECF No. 26-1), and (2) copies of Sparks's medical records ("Medical Records, " id Ex. A, ECF Nos. 26-2 through 26-3).

         At this stage, the Court is tasked with assessing whether Sparks "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. Sparks failed to 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). Sparks's complete failure to present any evidence to counter Defendants' Motion for Summary Judgment permits the Court to rely solely on Defendants' submissions in deciding the Motion for Summary Judgment. See Forsyth, 19 F.3d at 1537; Fed.R.Civ.P. 56(c)(3) ("The Court need only consider the cited materials ... .").[5]

         Nevertheless, Sparks swore to the contents of his Complaint, making the allegations contained therein "the equivalent of an opposing affidavit for summary judgment purposes." World Fuel Servs. Trading, DMCC v. Hebei Prince Shipping Co.,783 F.3d 507, 516 (4th ...

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