United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski, Chief United States District Judge
Brian Joyner, a Virginia inmate proceeding pro se,
commenced this action pursuant to 42 U.S.C. § 1983,
naming numerous staff of the Virginia Department of
Corrections (“VDOC”) and Wallens Ridge State
Prison as defendants. By memorandum opinion and order entered
May 8, 2018, the court granted defendants' motion for
summary judgment, but directed defendants to file another
motion for summary judgment regarding two unaddressed claims,
an equal protection claim and a retaliation claim.
See ECF Nos. 59 and 60. Pursuant to the court's
order, defendants filed another motion for summary judgment.
See ECF Nos. 63 and 64. Joyner responded and this
matter is ripe for disposition. See ECF No. 70.
After reviewing the record, the court grants defendants'
allegations of Joyner's unverified amended complaint are
set out in the court's prior memorandum
opinion. See ECF No. 59. As relevant to
the remaining claims before the court, Joyner alleges that he
was placed in the Special Housing Unit (“SHU”)
from the Grooming Standard Violator Housing Unit
(“VHU”) on November 26, 2014, after he was
charged with (and ultimately convicted of) the disciplinary
infraction of indecent exposure, when he masturbated in front
of a female officer. Joyner alleges that seven other inmates
were placed in the SHU after he was, but that the other
inmates were all released before him. He also alleges that
one inmate in particular had been charged with the same
offense as him, but that the other inmate was released from
segregation about a month before him. Joyner states that when
he inquired as to why everyone was being released except him,
defendant Unit Manager Dennis Collins told him that was the
only inmate complaining and, therefore, they were going to
release him last. Joyner argues that he was denied equal
protection and retaliated against because he complained about
the “unlawful treatment.”
moved for summary judgment and included an affidavit from
Unit Manager Dennis Collins. Collins avers that Joyner was
assigned to the VHU on February 22, 2010. Between that time
and October 2017, Joyner received sixteen institutional
disciplinary convictions and, consequently, was “back
and forth” between segregation, general population, and
VHU housing assignments. Joyner was assigned to the SHU on
November 26, 2014, following his receipt of the institutional
disciplinary charge for indecent exposure. He stayed in the
SHU until he was released to general population on June 5,
2015. At the time of Joyner's indecent exposure charge in
November 2014, he had already received two disciplinary
convictions in 2014: possession of contraband and possession
of intoxicants. Collins affirms that the Institutional
Classification Authority's (“ICA”) decision
to continue Joyner in segregation status between November 26,
2014 and June 5, 2015, was “in no way made out of
retaliation, ” but was “an appropriate
decision” that was “made in order to give Joyner
an opportunity to demonstrate stability in his
behavior.” After his release from segregation on June
5, 2015, Joyner remained in a general population assignment
until he was returned to the VHU on February 17, 2016. With
the exception of a one-month assignment to segregation
between October 17, 2016 and November 16, 2016 (following
another institutional disciplinary conviction for possessing
intoxicants), Joyner had, from February 17, 2016 through at
least August 2, 2018, remained assigned to the VHU.
Manager Collins avers that the other inmate that Joyner
references as having received the same conviction as Joyner,
offender Davis, was assigned to segregation on March 4, 2015,
following receipt of an indecent exposure charge, and was
released to general population on May 15, 2015. Prior to that
charge, offender Davis had not received an institutional
charge since June 2013. Collins states that while staff
follows VDOC guidelines regarding offender housing
assignments, those decisions are made by the ICA on an
individual basis. Numerous factors are considered, including
behavior patterns and history of disciplinary issues. One
offender's housing assignment has no bearing on decisions
made regarding another offender. Collins affirms that at no
time did he tell Joyner that he was being held in segregation
longer because of his complaints and grievances.
Rule of Civil Procedure 56(a) 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.”
“Material facts” are those facts necessary to
establish the elements of a party's cause of action.
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.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
see also JKC Holding Co. v. Wash. Sports Ventures,
Inc., 264 F.3d 459, 465 (4th Cir. 2001). If the evidence
of a genuine issue of material fact “is merely
colorable or is not significantly probative, summary judgment
may be granted.” Anderson, 477 U.S. at 250. In
considering a motion for summary judgment under Rule 56, a
court must view the record as a whole and draw all reasonable
inferences in the light most favorable to the nonmoving
party. See, e.g., Celotex Corp. v. Catrett, 477 U.S.
317, 322-24 (1986); Shaw v. Stroud, 13 F.3d 791, 798
(4th Cir. 1994). However, the non-moving party may not rely
on beliefs, conjecture, speculation, or conclusory
allegations to defeat a motion for summary judgment.
Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75
(4th Cir. 1992). The evidence relied on must meet “the
substantive evidentiary standard of proof that would apply at
a trial on the merits.” Mitchell v. Data Gen.
Corp., 12 F.3d 1310, 1315-16 (4th Cir. 1993) (“The
summary judgment inquiry thus scrutinizes the plaintiff's
case to determine whether the plaintiff has proffered
sufficient proof, in the form of admissible evidence, that
could carry the burden of proof of his claim at
trial.”); Sakaria v. Trans World Airlines, 8
F.3d 164, 171 (4th Cir. 1993) (finding that the district
court properly did not consider inadmissible hearsay in an
affidavit filed with motion for summary judgment). A
plaintiff may not amend a complaint through argument in a
brief opposing summary judgment. Cloaninger v.
McDevitt, 555 F.3d 324, 336 (4th Cir. 2009).
Fourth Circuit, verified complaints by pro se
prisoners are to be considered as affidavits and may,
standing alone, defeat a motion for summary judgment when the
allegations contained therein are based on personal
knowledge. Williams v. Griffin, 952 F.2d 820, 823
(4th Cir. 1991). However, Joyner's amended complaint is
unverified. “[T]he law is clear that a plaintiff cannot
rely on an unverified complaint in opposing a motion for
summary judgment.” See Huff v. Outlaw, No.
9:09-cv-00520-RBH, 2010 U.S. Dist. LEXIS 34696, at *5, 2010
WL 1433470, at *2 (D.S.C. Apr. 8, 2010).
as a general rule, the non-movant must respond to a motion
for summary judgment with affidavits, or other verified
evidence, rather than relying on an unverified complaint.
Alston v. Ruston, No. 9:99-244-19RB, 2000 U.S. Dist.
LEXIS 11939, at *9 (D.S.C. Mar. 9, 2000) (citing Celotex
Corp., 477 U.S. at 324; Williams, 952 F.2d at
823). An affidavit presented in opposition to a motion for
summary judgment “must present evidence in
substantially the same form as if the affiant were testifying
in court.” Id. (citing Evans v.
Technologies Applications & Service Co., 80 F.3d
954, 962 (4th Cir. 1996)). Thus, a party cannot ward off
summary judgment with an affidavit or verified complaint
“based on rumor or conjecture.” Id.
(citing Palucki v. Sears, Roebuck & Co., 879
F.2d 1568, 1572 (7th Cir. 1989); Conaway v. Smith,
853 F.2d 789, 793 (10th Cir. 1988) (summary judgment may be
appropriate in cases where the allegations in the verified
pleading are merely conclusory)). Joyner has responded to
defendants' motion for summary judgment, but he has
failed to provide any affidavit, even his own, to contradict
defendants' version of the facts. The court notes that Joyner
was given notice of the motion for summary judgment filed
against him and the opportunity to file counter-affidavits or
other evidence “contradicting, explaining, or
avoiding” defendants' evidence. See ECF
Nos. 63 and 65. Accordingly, the court will view
defendants' facts, as established in the affidavit of
Unit Manager Collins, as undisputed, but the court may grant
the motion only if defendants are entitled to summary
judgment. Fed.R.Civ.P. 56(e)(2)-(3).
extent Joyner brings this action against the defendants in
their official capacity for monetary damages, such relief is
not available via § 1983. Will v. Michigan Dep't
of State Police, 491 U.S. 58 (1989). Therefore, the
court will grant defendants' motion for summary judgment
as to Joyner's claims for monetary damages against
defendants in their official capacities.
Equal Protection Clause of the Fourteenth Amendment generally
requires the government to treat similarly situated people
alike. City of Cleburne v. Cleburne Living Ctr.,
Inc., 473 U.S. 432, 439-41 (1985). It “does not
take from the States all power of classification, but keeps
governmental decision makers from treating differently
persons who are in all relevant respects alike.”
Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002)
(internal quotation marks and citations omitted). To prove an
equal protection claim, an inmate “must first
demonstrate that he has been treated differently from others
with whom he is similarly situated and that the unequal
treatment was the result of intentional or purposeful
discrimination” on the basis of the plaintiff's
membership in a protected class, such as race, gender, or
religion. Id. (internal quotation marks omitted).
The plaintiff must next show that the policy is not
reasonably related to legitimate penological interests.
Id. at 732. This element requires the inmate to
“allege facts sufficient ...