United States District Court, E.D. Virginia, Richmond Division
CLIFTON L. SPARKS, Plaintiff,
L. AVA LEVIN, Defendant.
Hannah Lauck United States Judge
L. Sparks, a Virginia inmate proceeding pro se and
in forma pauperis, filed this 42 U.S.C. § 1983
action in which he alleges that Defendant L. Ava
Levin violated his Eighth Amendment rights. 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 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
SUMMARY OF ALLEGATIONS
Complaint filed on March 29, 2017,  Sparks alleges the
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
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.
seeks an unspecified amount of damages. (Id. at 5.)
STANDARD FOR SUMMARY JUDGMENT
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)).
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
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 ...
Sparks swore to the contents of his Complaint, making the
allegations contained therein "the equivalent of an
opposing affidavit for summary judgment purposes."
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