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. By Memorandum Opinion and Order entered on March 29,
2018, the Court granted Defendant Dr. Calhoun's Motion
for Summary Judgment. (ECF Nos. 91, 92.) In his remaining
claim, Hinton contends that Nurse Patricia McCabe denied him
adequate medical care during his incarceration in the
Lawrenceville Correctional Center ("LCC"). The
matter is before the Court on Defendant McCabe's Motion
for Summary Judgment. (ECF No. 93.) Despite the provision of
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975)
notice, Hinton has not responded. For the reasons that
follow, the Motion for Summary Judgment will be GRANTED and
the action will be DISMISSED.
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 and
piecemeal complaints, have made the case difficult to process
and his claims difficult to discern. In his operative
Complaint (ECF No. 31),  Hinton contends that Defendant McCabe
violated his rights under the Eighth and Fourteenth
Amendments because she "put a contaminated needle that
had the deadly Hepatitis C virus and gave Plaintiff this
deadly virus" and that as a "professional certified
nurse, [she] knew not to use a contaminated needle."
(Compl. 1 .) As discussed below, to the extent these
vague statements amount to claims for relief, the record
refutes that Hinton contracted Hepatitis C from Defendant
McCabe's use of a contaminated needle.
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 Schuylkill & Dauphin Imp. Co. v.
Munson, 81 U.S. 442, 448, 20 L.Ed. 867 (1871)).
support of her Motion for Summary Judgment, Defendant McCabe
cites to: (1) Dr. Calhoun's 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).
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). While Hinton swore to the contents of his
Complaint, his Complaint fails to constitute admissible
evidence. Hinton's complete failure to present
any evidence to counter Defendants' Motion for Summary
Judgment permits the Court to rely solely on Defendant's
submissions in deciding the Motion for Summary Judgment.
See Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.
1994) ("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."
(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
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
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 for
Hepatitis C ribonucleic acid ("RNA"). (Id.
¶ 11.) On July 17, 2015, the laboratory reported that
Hinton was positive for Hepatitis C RNA. (Id.)
October 2, 2015, medical staff obtained additional samples
from Hinton and Defendant Calhoun ordered testing for the RNA
genotype for Hinton's Hepatitis C. (Id. ¶
12.) On October 9, 2015, the laboratory returned results
indicating that Hinton's RNA genotype was lb, a less
prevalent form of Hepatitis C. (Id.) As of April
2015, there were three inmates at LCC other than Hinton who