United States District Court, E.D. Virginia, Alexandria Division
O'Grady, United States District Judge
Holley, a Virginia inmate proceeding pro se, has filed a
civil rights action, pursuant to 42 U.S.C. § 1983,
alleging violations of his Eighth Amendment rights at the
Hampton Roads Regional Jail ("HRRJ"). Defendants
Sergeant Nichole Frey, Sergeant William Epperson, Officer
Antonio Moore, Officer Michael Kithcart, and Officer Mark
Ancar (the "Correctional Defendants") filed a
Motion for Summary Judgment, as well as a memorandum of law
and supporting exhibits. Dkt. Nos. 30-35. Plaintiff was given
the Notice required by Local Rule 7(K) and the opportunity to
file responsive materials pursuant to Roseboro v. Garrison.
528 F.2d 309 (4th Cir. 1975). Dkt. No. 31. Plaintiff filed an
unverified response and the Correctional Defendants filed a
reply. Dkt. Nos. 53-54. The motion is now ripe for
adjudication. For the reasons that follow, the Correctional
Defendants' Motion for Summary Judgment will be granted.
following facts are undisputed. During the time in question,
plaintiff was a pretrial detainee. Defs. MS J at Ex. 1 ¶
32. On December 4, 2016, plaintiff grabbed another inmate by
the neck and assaulted him. Id. at Ex. 7 ¶ 4.
Plaintiff was charged with assault and failure to obey an
order, and was transferred to the Special Housing Unit
("SHU"). Id. at Ex. 1 ¶ 35. Based on
HRRJ standard policy, plaintiffs cell in the SHU was cleaned
prior to his transfer and was cleaned every day while
plaintiff was at recreation or in the showers. Id., at Ex. 1
¶¶ 15-16, 37. Plaintiff did not request cleaning
supplies to clean his cell between December 4, and December
14, 2016. Id. at Ex. 1 ¶38, Ex. 15 ¶ 9.
Officer Kithcart has no recollection of interacting with
plaintiff in December 2016, let alone being made aware of the
conditions of plaintiffs cell in the SHU; however, had he
escorted plaintiff to the SHU, he would not have left
plaintiff in a cell that was dirty or smelled of feces.
Id. at Ex.9 ¶¶ 4-5. In addition, Officer
Kithcart would have checked the sink and toilet in the cell,
per HRRJ policy. Id. at Ex. 9 ¶¶ 7-9.
Carson examined plaintiff on December 4, 2016, and noted a
possible right hand and left finger fracture. Id. at
Ex. 10. Dr. Ines ordered an x-ray and prescribed Ibuprofen.
Id. Plaintiff received his medications each day from
December 5, to December 14, 2016, except when he refused it,
and was observed by a nurse at least once during each shift.
Id. at Ex. 11.
to x-rays performed December 5, 2016, Dr. Nash found that
plaintiff had a healed or healing fracture of the fourth
metacarpal bone and an old facture of the fifth metacarpal
bone in his left hand. Id. at Ex. 10. Dr. Nash also
found that plaintiff had a fracture of the fifth metacarpal
bone and swelling in his right hand. Id. Also on
December 5, 2016, provider Ghaibeh referred plaintiff to an
orthopedist. Id. Plaintiff was in court most of
December 6, 2016, however, he refused medication during the
night pill pass. Id. That same day, plaintiff was
scheduled to see an orthopedist on December 15, 2016.
emergency medical code was placed for plaintiff at 5:50 pm on
December 7, 2016, and Nurses Thorton, Sadler, and Dolan, as
well as Officer Gordon and Sergeant Frey responded.
Id. at Ex. 1 ¶ 39. Plaintiff was examined by
Nurses Thorton and Sadler, but when he complained that his
back hurt, he refused to roll on his side to allow them to
examine his back because he said he could not move.
Id. at Ex. 1 ¶ 39-40. However, plaintiff was
moving his arms and feet. Id. at Ex. 1 ¶ 40,
Ex. 10. Nurses Thorton and Sadler informed plaintiff that he
could not receive medical assistance if he refused to be
examined, and plaintiff stated that he wanted to stay on his
back. Id. at Ex. 1 ¶ 40. The medical staff told
Sergeant Frey that they did not believe plaintiff was so
severely injured that he could not be examined, because he
was moving his arms and legs, and that there was nothing else
they could do without plaintiffs cooperation. Id. at
Ex. 1 ¶ 42. The medical staff informed plaintiff that a
nurse would check on him during pill pass and everyone left
plaintiff s cell. Id. Nurse Sadler noted that
plaintiff was already on pain medication and was scheduled to
see a doctor. Id. at Ex. 10.
that night, Officer Moore observed plaintiff unresponsive,
and at 10:30 pm, he entered plaintiffs cell with Sergeant
Frey, Officer Ancar, and Nurse Guess. Id. at Ex. 13
¶¶ 4-5. They found plaintiff on the floor, covered
with a blanket that had previously been out of his reach,
screaming that his back hurt. Id. at Ex. 1 ¶
49, Ex. 13 ¶ 5. Plaintiff was moving his arms and legs,
refused assistance, and threw a cup at one of the officers.
Id. at Ex. 1 ¶ 45, Ex. 13 ¶ 6. Sergeant
Frey assured plaintiff that the plumbing worked in his cell,
as demonstrated by flushing the toilet and filling a glass
with water. Id. at Ex. 1 ¶ 46. Nurse Guess
determined that there was nothing else they could do to
assist plaintiff, therefore they left his cell. Id.
at Ex. 1 ¶ 47, Ex. 13 ¶ 7. During the rest of the
night, Officer Moore observed plaintiff on the floor, but he
was responsive and did not complain about an injury.
Id. at Ex. 13 ¶ 8.
December 8, 2016, plaintiff was standing outside his cell and
told Sergeant Epperson that he injured his hand and back in a
fall, but that he received treatment. Id. at Ex. 15
¶¶ 6-7. Plaintiff then stated that there was feces
under his bed, which Sergeant Epperson found, and plaintiff
was transferred to a new cell later that day. Id. at
Ex. 15 ¶ 5. Plaintiff did not complain to Sergeant
Epperson about his injuries and he did not appear injured to
Sergeant Epperson. Id. at Ex. 15 ¶¶ 5, 8.
December 11, 2016, Nurse Jentons noted that plaintiffs hand
was swollen and that he was scheduled to see an orthopedist
on December 15, 2016. Id. at Ex. 10. On December 13,
2016, Nurse Weber noted that plaintiffs hand was swelling and
ordered an x-ray. Id. On December 15, 2016, Dr.
Blasdell noted that plaintiff had a healing metacarpal
fracture in his right hand and diagnosed plaintiff with a
contusion of the right hand. Id. Blasdell buddy
taped plaintiffs fourth and fifth fingers and provided
plaintiff with range of motion exercises. Id.
time the Correctional Defendants entered plaintiffs cell, it
was in normal condition, without filth, urine or feces, and
plaintiff never complaint to Sergeant Frey about the
conditions of his cell. Id. at Ex. 1 ¶ 50, Ex.
13 ¶ 9. None of the Correctional Defendants have medical
training beyond CPR. Id. at Ex. 1 ¶ 6, Ex. 7
¶ 3, Ex. 9 ¶ 3, Ex. 13 ¶ 3, Ex. 15 ¶ 4.
Standard of Review
to Rule 56 of the Federal Rules of Civil Procedure, the Court
must grant summary judgment "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 moving party bears the burden of
proving that judgment on the pleadings is appropriate. See
Celotex Corp. v. Citrate, 477 U.S. 317, 323 (1986)
(moving party bears the burden of persuasion on all relevant
issues). To meet that burden, the moving party must
demonstrate that no genuine issues of material fact are
present for resolution. Id. at 322. Once a moving
party has met its burden to show that it is entitled to
judgment as a matter of law, the burden then shifts to the
non-moving party to point out the specific facts which create
disputed factual issues. Anderson v. Liberty Lobby.
Inc., 477 U.S. 242, 248 (1986). In evaluating a motion
for summary judgment, a district court should consider the
evidence in the light most favorable to the non-moving party
and draw all reasonable inferences from those facts in favor
of that party. United States v. Diebold, Inc., 369
U.S. 654, 655 (1962). Those facts which the moving party
bears the burden of proving are facts which are material.
"[T]he substantive law will identify which facts are
material. Only disputes over facts which might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment."
Anderson, 477 U.S. at 248. An issue of material fact
is genuine when, "the evidence ... create[s] [a] fair
doubt; wholly speculative assertions will not suffice."
Ross v. Communications Satellite Corp., 759 F.2d
355, 364 (4th Cir. 1985). Thus, summary judgment is
appropriate only where no material facts are genuinely
disputed and the evidence as a whole could not lead a
rational fact finder to rule for the non-moving party.
Matsushita Electrical Industrial Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).