United States District Court, E.D. Virginia, Richmond Division
A. Gibney Jr. United States District Judge
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. 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
MR. WELTY'S CLAIMS
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.)
STANDARD FOR SUMMARY JUDGMENT
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)).
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
Court further notes that, at the bottom of his Complaint, Mr.
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))). 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.
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 ...