United States District Court, W.D. Virginia, Roanoke Division
JACKSON L. KISER SENIOR UNITED STATES DISTRICT JUDGE.
Muluken Wubneh is an inmate who was incarcerated at Keen
Mountain Correctional Center ("KMCC") within the
Virginia Department of Corrections ("VDOC"). On
November 9, 2017, he filed a pro se Complaint pursuant to 42
U.S.C. § 1983, alleging that Defendant J. Hutchinson, a
former correctional officer at KMCC, violated his Eighth
Amendment right against cruel and unusual punishment by
verbally and physically assaulting Plaintiff in his cell.
This matter is before the Court on the parties'
cross-motions for summary judgment. [ECF Nos. 15, 20.] For
the reasons that follow, I find that that both parties have
presented genuine issues of material fact before the Court,
and their motions for summary judgment motion are therefore
alleges that on April 16, 2016, he was using a telephone in a
segregation unit when an unidentified correctional officer
unplugged the phone cord. (PL's Compl. at 3 [ECF No. 1].)
He then contacted Correctional Officer J. Harrison, who
reconnected the plug. Id. Subsequently, Defendant
Hutchinson approached Plaintiffs cell "in an aggressive,
threatening manner" and loudly yelled, "You're
a snitch! Snitches don't use the phone in segregation
while I'm working!" This, according to Plaintiff,
put his safety at risk. As Plaintiff was then attempting to
dial the phone, Defendant yanked the phone out of Plaintiff s
hand and "slammed the tray slot on [his] right hand . .
. causing [him] painful injury." (See id.;
see also PL's Mot. for Summary Judgment, Attach.
A, (hereinafter "PL's First Aff.") [ECF No.
15-1].) Plaintiff alleges that, during this encounter, he was
"not violating any prison rules, nor was [he] acting in
a disruptive manner." (PL's Compl. at 4.) Following
the incident, Plaintiff requested a nurse, who gave Plaintiff
an ice pack and scheduled him to see a doctor. (PL's
appended to his Complaint a VDOC "Complaint and
Treatment Form." (PL's Compl. Ex. A.) Though
portions of this handwritten record are not legible, it
generally shows that Plaintiff visited a prison medical
clinic on April 21, 2016, complaining of right arm and hand
pain. Id. He had an "interaction [with an]
officer when [the] phone was removed from [his] hand due to
failure to comply [with] instructions." This, Plaintiff
reported, caused pain in his right hand. Id. He also
noted a history of chronic right shoulder pain. During a
physical examination, he was found to have full range of
motion and full strength. He was prescribed some Tylenol that
he was advised to take for one week. IcL On April 25 he
sought an appointment with a doctor because he wanted an arm
sling for his right arm. IcL Staff recorded that he was not
in acute distress and he was able to raise his arm without
difficulty. He was placed on a doctor's list "for
further evaluation." Id.
also appended to his Complaint sworn affidavits by L.
Thompson and B, Floyd. (PL's Compl., Exs. B, C [ECF No.
1-1].) It appears these individuals were fellow inmates who
were witnesses to the events on April 16. IcL Thompson states
that he was standing at his cell door on the date of the
incident when he observed officers yelling and slamming a
cell tray slot. (Id., Ex. B.) Plaintiff then
"screamed in pain and requested immediate medical
attention, which was denied." (Id.) Similarly,
Floyd alleges that he saw correctional officers at cell 243
arguing, and while he could not hear what was said, he saw
Hutchinson "yelling something then Bam!!! real loud and
my next door tray slot shuts." (PL's Compl. Ex. C.)
appended affidavits from himself and Institutional
Investigator Brian Mitchell to his brief in support of his
Motion for Summary Judgment. Defendant alleges that on the
day in question, Plaintiff called him over to his cell door
complaining that his phone call had been disconnected.
(Def.'s Br. in Supp. Mot. for Summary Judgment, Enclosure
A, Hutchinson Aff. ¶ 4 [ECF No. 21-2].) Officer J.
Harrison was also present at that time. Id.
Defendant instructed Plaintiff to hand over the phone so he
could verify the status of the disconnected call.
Id. Plaintiff responded, "if you touch the
fucking phone, I am going to break your fucking arm!"
Id. He then attempted to pull the phone receiver
back into his cell, but lost his grip, providing Defendant
with an opportunity to lift the phone out of the cell.
Id. After Plaintiff had pulled his arm back into the
cell, Defendant secured the tray slot. Id. He
alleges that he did "not assault [Plaintiff], nor use
excessive force against him." Id. ¶ 5.
Following the incident, Defendant placed an institutional
disciplinary charge against Plaintiff for "Threatening
Bodily Harm to any Person" and Officer Harrison placed a
charge against Plaintiff for "Tampering with Security
Materials, Devices or Equipment." Id.
Mitchell had been responsible for investigating the incident
after he received a written complaint from Plaintiff in late
April 2016. (See Def.'s Br. in Supp. Mot. for
Summary Judgment, Enclosure A, Mitchell Aff., Enclosure to
Aff.. ("Investigation Report") at 1 [ECF No.
21-1].) Mitchell noted that when Plaintiff was removed from
his cell for an interview, he had his arm wrapped in a sling.
Id. He did not wince or complain, however, when he
was cuffed from behind. During the interview, Mitchell
inquired about the tray slot, but Plaintiff "became
agitated" and told Mitchell to "look at the
camera." Plaintiff also became agitated when pressed for
details about his subsequent visit with a nurse, and he
terminated the interview and requested to be returned to his
cell. Id. Mitchell later interviewed Officer
Harrison, who was with Defendant during the incident and told
a substantially similar story to Plaintiff. Id. at
Mitchell interviewed Lieutenant C. Shelton, who had performed
a security check on April 16 sometime after the incident had
occurred. Id. Shelton stated that Plaintiff did not
report to her any allegations of assault, but he did state
that his arm had been hurt while using his telephone.
Plaintiff declined to elaborate, and Shelton did not see any
injuries to Plaintiff. Id. Based on the accounts of
Harrison, Shelton, and the parties, as well as his review of
the medical evidence and video recordings of the incident,
Mitchell concluded that there was "no evidence to
support [Plaintiffs] claim that he was assaulted by
staff." IcL at 2-3.
Defendant appended to his motion a "Rapid Eye
Video" of Plaintiff s cell block on April 16, 2016.
Unfortunately, neither the video evidence nor any other
information contained in the record are sufficient to confirm
the exact location of Plaintiffs cell in the video or the
identities of the individuals in the video at any given
moment. Moreover, even if this information were
available, the poor quality of the video inhibits any
reliable determination, as a matter of law, as to whether
Defendant closed Plaintiffs hand in a tray slot on his cell
door. Indeed, Mitchell's investigative report also notes
that "[d]ue to the location of the cell and distance
from the cell to the camera, the footage at the cell by
itself cannot be used to support or contradict the allegation
of assault." (Investigative Report at 2-3.)
Rule of Civil Procedure 56 provides that a court should 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." "As to
materiality... [o]nly disputes over facts that might affect
the outcome of the suit under the governing law will properly
preclude the entry of summary judgment." Anderson v.
Liberty Lobby. Inc.. 477 U.S. 242, 248 (1986). In order
to preclude summary judgment, the dispute about a material
fact must be "'genuine,' that is, if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Id. However,
if the evidence of a genuine issue of material fact "is
merely colorable or is not significantly probative, summary
judgment may be granted." Id. at 250. In
considering a motion for summary judgment, a court must view
the record as a whole ...