United States District Court, E.D. Virginia, Alexandria Division
M. BRINKEMA UNITED STATES DISTRICT JUDGE
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].Defendants filed a brief reply
[Dkt. No. 35], and plaintiff submitted a surreply [Dkt. No.
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.
undisputed facts are as follows. 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.
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.
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
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.
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.
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
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.
Standard of Review
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).
remaining claims arise under the Eighth
Amendment. 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 ...