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Welty v. Meletis

United States District Court, E.D. Virginia, Richmond Division

June 27, 2019

JERRY WELTY, JR., Plaintiff,
v.
PETE MELETIS, et al., Defendants.

          MEMORANDUM OPINION

          John A. Gibney Jr. United States District Judge

         Jerry Welty, Jr., a Virginia inmate proceeding pro se and in for ma pauper is, filed this 42 U.S.C. § 1983 action. The matter is proceeding on Mr. Welty's Fourth Particularized Complaint ("Complaint," ECF No. 94) against Pete Meletis and George Hurlock.[1] Meletis is the Superintendent of the Prince William Manassas Regional Adult Detention Center ("ADC"). (ECF No. 1, at 2.) Hurlock is the Director of Security at the ADC. (Id. at 3.) The matter is before the Court on Defendants' Motion for Summary Judgment.

         I. MR. WELTY'S CLAIMS

         The following claims remain before the Court:

Claim 1 Defendants Hurlock and Meletis violated Mr. Welty's rights under the Fourteenth Amendment by creating an unsafe environment in the ADC dayroom that allowed Mr. Welty to be beaten for forty-five minutes.
Claim 2 (a) Defendant Hurlock "retaliated against, threatened and intimidated [Mr. Welty] for using the grievance system for gathering information for litigation." (Compl. 8.)

         II. STANDARD FOR SUMMARY JUDGMENT

         Summary 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. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n.7 (5th Cir. 1992)).

         In support of their Motion for Summary Judgment, Defendants submitted the following evidence: the police report Mr. Welty filed following the assault upon his person ("Police Report," ECF No. 128-1); the Unit Log Sheet from the day of the assault ("Unit Log," ECF No. 128-2); the affidavit of Jarrod Williams ("Williams Aff.," ECF No. 128-3); the affidavit of Everette Myers ("Myers Aff," ECF No. 128-4); the affidavit of George Hurlock ("Hurlock Aff," ECF No. 128-5); and, the affidavit of Roderick Osborne ("Osborne Aff," ECF No. 128-6). Mr. Welty filed an unsworn response and also submitted some records from the ADC, correspondence with defense counsel, a drawing of the dayroom, and a barely legible medical record, and directed the Court to documents he attached to his Complaint.

         The Court further notes that, at the bottom of his Complaint, Mr. Welty stated:

I have read the foregoing and hereby verify that the matters alleged there in are true, except as to matters alleged on information and belief, and, as to those believe them to be true. I certify under penalty of perjury that the foregoing is true and correct.

(Compl. 10.) Such a statement fails to transform the statements in the Particularized Complaint into admissible evidence. Hogge v. Stephens, No. 3:09CV582, 2011 WL 2161100, at *2-3, *2 n. 5 (E.D.Va. June 1, 2011) (treating statements sworn to under penalty of perjury, but made upon information and belief as "mere pleading allegations" (quoting Walker v. Tyler Cty. Comm'n, 11 Fed.Appx. 270, 274 (4th Cir. 2001))).[2] Furthermore, by Memorandum Order entered on October 26, 2017, the Court informed Mr. Welty of the proper manner for submitting sworn evidence to oppose a motion for summary judgment:

the Court will not consider as evidence in opposition to any motion for summary judgment a memorandum of law and facts that is sworn to under penalty of perjury. Rather, any verified allegations must be set forth in a separate document titled "Affidavit" or "Sworn Statement," and reflect that the sworn statements of fact are made on personal knowledge and that the affiant is competent to testify on the matter stated therein. See Fed. R. Civ. P. 56(c)(4).

(ECF No. 68, at 2.) In light of the foregoing principles and submissions, the facts set forth below in Part III are established for purposes of the Motion for Summary Judgment.

         Before turning to the established facts, the Court notes that, in his Response to Defendants' Motion for Summary Judgment, Mr. Welty vaguely suggests that Defendants have failed to produce his medical records and other documents that would support his claim. (See, e.g., ECF No. 130, at 7.) Generally, summary judgment is appropriate only "after adequate time for discovery." Celotex Corp., 477 U.S. at 322. Thus, Fed.R.Civ.P. 56(d) provides that, "[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may" deny the motion for summary judgment or issue any other appropriate order. Fed.R.Civ.P. 56(d). "The purpose of the affidavit is to ensure that the nonmoving party is invoking the protections of Rule 56[d] in good faith and to afford the trial court the showing necessary to assess the merit of a party's opposition." Harrods Ltd. v. SixtyInternet Domain Names,302 F.3d 214, 244 (4th Cir. 2002) (quoting First Chicago Int'l v. UnitedExch. Co.,836 F.2d 1375, 1380 (D.C. Cir. 1988)). Thus, requests for relief under Rule 56(d) "should be denied ...' if the ...


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