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Atkins v. Glaser

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

September 27, 2019

David Atkins, Plaintiff,
v.
Lt. Glaser, et al., Defendants.

          MEMORANDUM OPINION

          LEONIE M. BRINKEMA UNITED STATES DISTRICT JUDGE

         Proceeding pro se, David Atkins ("plaintiff or "Atkins") initiated this civil rights action pursuant to 42 U.S.C. § 1983, alleging that defendants violated his constitutional rights during his incarceration. Defendants Thomas Glaser ("Glaser" or "Lt. Glaser"), Erica Williams ("Williams" or "Sgt. Williams"), and Robert Cleek ("Cleek" or "Cpl. Cleek") (collectively "defendants") have filed a Motion for Summary Judgment supported by a legal memorandum, two affidavits, and several documentary exhibits [Dkt. Nos. 25-26]. Plaintiff received the notice required by Local Rule 7(K) and time to file responsive materials pursuant to Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975) [Dkt. No. 27]. He later submitted a document he titled a "Memorandum in Support of Summary Judgment" [Dkt. No. 34].[1]Defendants filed a brief reply [Dkt. No. 35], and plaintiff submitted a surreply [Dkt. No. 36].[2] This matter is therefore ripe for adjudication. For the reasons stated below, defendants' Motion for Summary Judgment will be granted, and judgment will be entered in favor of defendants Glaser, Williams, and Cleek.

         I. Background

         The undisputed facts are as follows.[3] Atkins arrived at Norfolk City Jail ("NCJ") on October 10, 2017. Defs' MSJ, ¶ 2. Per institutional protocol, he immediately underwent classification and medical screening. Id. Plaintiffs "Patient Profile" later reflected that he suffers from hypoglycemia and seizures. Defs' MSJ, ¶ 2; Samboy Aff., Ex. A. On the day of his arrival at the jail, plaintiff was prescribed Keppra, an anti-convulsant medication to address his seizure disorder. Id. at ¶ 3; Samboy Aff., Ex. B. The following day, October 11, 2017, plaintiff was prescribed a chewable glucose tablet to be taken as needed. Id. And on October 17, 2017, Atkins was placed on a "Restricted Medical Diet" through which he was to receive an additional snack in the evening and was not to be served tomatoes. Defs' MSJ, ¶ 5. During his time at NCJ, Atkins repeatedly refused to take his anti-convulsant medication even as staff members explained to him the possible negative consequences of doing so. Defs' MSJ, ¶¶ 6-7; Samboy Aff., Ex. E.

         During lunch service on October 21, 2017, defendant Cleek was informed that Atkins took issue with the quality of his food and was creating a disturbance in the service area. Defs' MSJ ¶ 8; Cleek Aff. ¶ 3. Cleek reported to the scene and spoke to Atkins, who showed Cleek his lunch tray; it contained beef stew, on top of which sat a large black insect. Defs' MS J ¶ 9; Cleek Aff. ¶ 4. Atkins loudly demanded a grievance form to document this issue. Defs' MS J ¶ 10; CleekAff.¶4.

         Lt. Glaser then reported to the food service area. Cleek Aff. ¶ 5. Both Glaser and Cleek asked plaintiff if he would accept a new tray of food, but plaintiff refused, arguing that the entire batch of stew was "contaminated." Id. at ¶ 5. Other inmates then also refused to eat their food. Id. at ¶ 6. All told, 49 lunch trays were returned or refused by inmates. Id. at ¶ 7. Glaser then conducted a brief investigation into how an insect would have arrived on plaintiffs tray. Defs' MS J; Glaser Aff. ¶¶ 8-9. Concluding that it was unlikely the bug was in plaintiffs food before plaintiff received the tray, Glaser once more offered Atkins a fresh serving. Glaser Aff. ¶ 10. Plaintiff again refused. Id.

         Atkins declared that the inmates would be provided bagged lunches in place of the beef stew. Id. at ¶ 11. Glaser informed Atkins that he would receive "a violation" for interfering with staff duties and that he would be transferred to a different housing unit while prison officials addressed the other inmates regarding the quality of the food and the results of Glaser's investigation. Id. at ¶ 10. After hearing from Glaser and Cleek, the other inmates eventually agreed to eat the stew, but because the food had been sitting out for the duration of the incident, kitchen staff were ordered to prepare new hot trays. Id. at ¶ 14.

         At roughly this time, Lt. Glaser summoned Sgt. Williams to transport Atkins from Housing Unit DMX2 to Section 1 A. Williams Aff. ¶ 3. Cpl. Paul Brown accompanied Williams during Atkins's escort. Brown Aff. ¶ 3. During the move, Atkins, in violation of standard procedure, repeatedly turned around to address Williams and Brown. Williams Aff. ¶ 6. Williams repeatedly verbally directed Atkins to turn around and to stop talking. Id. at ¶ 7. Atkins was noncompliant with Williams's orders, and Williams briefly placed her hand on Atkins's back to direct him to face the wall. Id.

         Lt. Glaser later visited Atkins in Section 1A of NCJ. Glaser Aff. ¶ 16. Atkins asked whether he could be provided a new lunch tray, and Glaser responded that he would be given one once the kitchen finished preparing the fresh food. Id. at ¶ 17. Atkins then stated that he did not want beef stew. Id. at ¶ 18. Glaser replied that this was the only dish the kitchen was serving and again asked whether plaintiff wanted a new tray. Id. Atkins said that he was not refusing lunch but did not want to eat beef stew. Id. Glaser repeated his question, and Atkins provided the same answer, leading Glaser to document that Atkins refused his lunch. Id. at ¶ 19.

         Shortly after Glaser's visit, Atkins informed Dpt. Ashley Turner that he had just suffered a seizure. Fiorella Aff., Ex. C. Plaintiff was transported to Sentara Norfolk General Hospital complaining of elbow pain, apparently from striking the joint during his seizure. Id. At the hospital, Atkins informed Dr. Ryan Tomberg that this incident had been brought on due to hypoglycemia. Samboy Aff., Ex. F. Tomberg ordered a glucose screen which showed that plaintiffs glucose levels were within normal limits at the time of the test. Id. An x-ray examination of plaintiff s elbow revealed that the joint was not fractured or dislocated but had a small bone spur. Id; Defs' MS J ¶ 61.

         II. Standard of Review

         "The court shall 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). "A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party, " and "[a] fact is material if it might affect the outcome of the suit under the governing law." Variety Stores v. Wal-Mart Stores. Inc.. 888 F.3d 651, 659 (4th Cir. 2018). Once the moving party has met its burden to show that it is entitled to judgment as a matter of law, the nonmoving party "must show that there is a genuine dispute of material fact for trial... by offering sufficient proof in the form of admissible evidence." Id. (quoting Guessous v. Fairview Prop. Invs.. LLC. 828 F.3d 208, 216 (4th Cir. 2016)). In evaluating a motion for summary judgment, a district court should consider the evidence in the light most favorable to the nonmoving 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).

         III. Analysis

         Plaintiffs remaining claims arise under the Eighth Amendment.[4] Atkins's complaint alleged facts supportive of claims based on theories of use of excessive force and based on the conditions of his confinement. As explained below, defendants have introduced, and plaintiff has failed to call ...


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