Dmitry Pronin v. Troy Johnson, No. 15-6534 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-6534 DMITRY PRONIN, Plaintiff – Appellant, v. LIEUTENANT TROY JOHNSON; OFFICER FLOURNOY; OFFICER MIDDLEBROOK; OFFICER WILSON; OFFICER CRAWFORD; KENNETH ATKINSON; DANIEL FALLEN; REX BLOCKER; LOUISA FUERTES-ROSARIO; SANDRA K. LATHROP; BRANDON BURKETT; JAKE BURKETT; JOHN BRYANT; PATINA WALTON-GRIER; HENRI WALL; EDWARD HAMPTON; WILLIAM JOHNSON; LIEUTENANT EDA OLIVERA-NEGRON, Operations, Defendants – Appellees, and SHU STAFF MEMBERS, Defendant. Appeal from the United States District Court for the District of South Carolina, at Orangeburg. David C. Norton, District Judge. (5:12-cv-03416-DCN) Submitted: August 20, 2015 Decided: October 7, 2015 Before MOTZ, FLOYD, and HARRIS, Circuit Judges. Affirmed in part; vacated and remanded in part by unpublished per curiam opinion. Dmitry Pronin, Appellant Pro Se. Barbara Murcier Bowens, Assistant United States Attorney, Columbia, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Dmitry Pronin appeals from the district court’s order granting summary judgment to Defendants in Pronin’s 42 U.S.C. § 1983 (2012) action. arguments on appeal, We have reviewed the record and Pronin’s and we agree with the district disposition of the vast majority of Pronin’s claims. court’s However, for the reasons that follow, we vacate and remand Pronin’s claim that he was denied access to courts for further proceedings. I. We review de novo a district court’s order granting summary judgment, viewing the facts and drawing reasonable inferences therefrom in the light most favorable to the nonmoving party. Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011). Summary judgment shall be granted when “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 district court should grant summary judgment unless a “reasonable jury could return a verdict for the nonmoving party” on the evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An otherwise properly supported motion for summary judgment will not be defeated by the existence of some factual dispute; “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. Mere conclusory allegations and bare 3 denials are insufficient to support the nonmoving party’s case. Erwin v. United States, 591 F.3d 313, 319-20 (4th Cir. 2010). While a party cannot withstand summary judgment by relying solely on his own self-serving allegations unsupported by any corroborating evidence, Williams v. Giant Food Inc., 370 F.3d 423, 433 (4th Cir. 2004), summary judgment should not be made on the basis of conflicting affidavits. See Gray v. Spillman, 925 F.2d 90, 95 (4th Cir. 1991) (not the province of trial court to make credibility determinations in a summary judgment setting). II. Prisoners effective, have and a constitutional meaningful” access to right the to “adequate, courts. Bounds v. Smith, 430 U.S. 817, 822 (1977); see Lewis v. Casey, 518 U.S. 343, 351 (1996). access to suffered the an To prevail on a claim that he was denied courts, actual a prisoner injury, such must as demonstrate missing a that he court-imposed deadline or being unable to file a complaint because of the Defendants’ actions. Pronin’s claim Lewis, 518 U.S. at 351-52. of denial of access to courts revolves around the loss of his legal papers, which he alleges resulted from Officer Pronin was J. Burkett’s removed from failure his cell to and secure Officer his disposal of a portion of the documents. papers Troy when Johnson’s The district court ruled that it was undisputed that J. Burkett did not intend to 4 damage Pronin’s documents and that Pronin had failed to show an injury as he was able to file a 28 U.S.C. § 2255 (2012) motion which was still pending. On appeal, Pronin raises two claims of error regarding the district court’s rejection of his claim. the district affidavit was declarations Pronin’s court erred in uncontested. showing complaints that against First, he asserts that concluding Pronin J. claims Burkett his that that was brother, J. Burkett’s he provided retaliating Officer B. for Burkett. Second, Pronin claims that, while his § 2255 motion is still pending, the loss of his medical records have so hampered his ability to seek relief that he has satisfied his requirement to show an actual injury. In his objections recommendation, Pronin to the magistrate asserted as judge’s follows: On report and September 25, 2012, J. Burkett told Pronin that Burkett was aware that he was complaining about his brother. In October 2012, both brothers filed him incident reports against that were dismissed. On November 11, J. Burkett left Pronin’s legal documents with his cellmate, and they were partially destroyed. Johnson threw out the remaining documents. On November 13, These documents were medical records from Russia allegedly showing that Pronin was a vulnerable adult, that he suffered from bipolar disorder and 5 borderline personality, and that he had been diagnosed with a nervous neck tick and epilepsy. In direct contradiction, Johnson’s declaration states that he did not throw out any of Pronin’s paperwork, but that it was instead returned to him. J. Burkett’s declaration similarly avers that, when Pronin was moved, his property was secured and given to him. We conflict. Pronin Defendants find has dispute that the provided the affidavits dates veracity of and are clearly details, Pronin’s and in the allegations. Accordingly, it was error for the district court to conclude that J. Burkett’s declaration was uncontested. Turning to the injury requirement, the Defendants alleged in their motion for summary judgment that Pronin was able to file his § 2255 motion which District Court of Delaware. courts includes whatever “the pleadings currently pending in the However, the right of access to the opportunity or is other to prepare, documents are serve and file necessary or appropriate in order to commence or prosecute court proceedings affecting one’s personal liberty, or to assert and sustain a defense therein.” Silva v. Di Vittorio, 658 F.3d 1090, 1103 (9th Cir. 2011). Prisoners have a right under the First and Fourteenth Amendments to litigate claims challenging their sentences or the conditions of their confinement to conclusion without active interference by prison officials. 6 Id. To show injury, the plaintiff must show that he lost or will lose the opportunity to pursue a “nonfrivolous” and “arguable” claim. Christopher v. Harbury, 536 U.S. 403, 415 (2002). We have reviewed the filings in Pronin’s pending § 2255 motion. In the relevant claims, Pronin avers that he received ineffective assistance of counsel when he asked his attorney to pursue a “neuropsychiatric” evaluation but his attorney refused. He also seeks condition. a downward In support, departure he based submitted upon two his mental neuropsychiatric evaluation reports from 2015 that conclude that he suffers from post traumatic stress disorder and bipolar disorder. (See United States v. Pronin, No. 1:11-cr-00033-LPS-1 (D. Del.) at Docket Nos. 27, 35). In his sentencing memorandum, Pronin’s counsel argued for a variance sentence providing any based supporting upon Pronin’s documentation. depression, The without district court rejected this request, and Pronin was sentenced near the high end of his Guidelines range. The Government’s sentencing memorandum painted Pronin as a particularly dangerous criminal. In light of these circumstances, we find that evidence of serious mental disorders, would illness, have including supported bipolar Pronin’s case and borderline at sentencing. Pronin need only show a “reasonable probability” that, absent ineffective assistance, his sentence might have been different. 7 See Gray v. (finding Branker, that 529 F.3d counsel’s 220, failure to 236-38 (4th provide Cir. mental 2008) health evidence at capital sentencing was ineffective where evidence would have provided a “significant boost” to mitigation evidence and would not have conflicted with mitigation strategy). While Pronin is able to submit mental health evidence from 2015 in his § 2255 proceeding to show that he currently suffers from mental illnesses, the Defendants’ alleged destruction of his legal materials prevents him from providing the court with his medical history showing that these illnesses had been diagnosed prior to his criminal activity. This evidence could be helpful in showing that his attorney should have investigated his mental health. Without expressing an opinion as to Pronin’s likelihood of success in his § 2255 proceeding, we find that Pronin has raised a material question of fact as to whether he can show a nonfrivolous and arguable question regarding whether such materials would result in a successful § 2255 motion. The district court did not analyze these issues. The court instead decided that (1) J. Burkett’s affidavit of intent was uncontested and (2) Pronin’s allegations of injury were vague. We find that both of these conclusions were error and that both the intent material and fact. injury issues Accordingly, we 8 involved vacate disputed the issues district of court’s order and remand for further proceedings consistent with this opinion. III. Pronin contends that the district court erred in rejecting his claim that Doctor Rex Blocker’s delay of more than a year before prescribing medication for Pronin’s sufficient to show deliberate indifference. the delay resulted in a seizure. delayed prescription of epilepsy was Pronin claimed that The district court ruled that medication does not constitute a constitutional deprivation. To succeed on his claims of constitutionally inadequate medical care, Pronin was required to show acts or omissions on Blocker’s part harmful enough to constitute indifference to his serious medical needs. 429 U.S. 97, 106 (1976). showing that Blocker deliberate Estelle v. Gamble, Meeting this high standard requires a actually knew of and disregarded a substantial risk of serious injury or that he actually knew of and ignored a serious need for medical care. Young v. City of Mt. Ranier, 238 F.3d 567, 575-76 (4th Cir. 2001). A prisoner’s accusation that the care he is receiving is not adequate to treat his medical indifference. needs may support a claim of deliberate De’lonta v. Johnson, 708 F.3d 520, 526 (4th Cir. 2013) (“[While] a prisoner does not enjoy a constitutional right to the treatment of his or her choice, the treatment a prison 9 facility does provide must nevertheless be adequate to address the prisoner’s serious medical need.”). may, on closer prisoner’s inspection, disagreement amount with his Although such claims to nothing diagnosis more or than a prescribed treatment, prison doctors violate the Eighth Amendment if they decline to provide the level of care they deem medically necessary or fail to adequately address a prisoner’s complaints that the care he is receiving is not effective. See Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986) (failure to respond to an inmate’s known medical needs raises an inference of deliberate indifference to those needs). We conclude Blocker. summary judgment was properly granted to It is undisputed that, when Pronin arrived at the institution, he was not on any seizure medication, and he gave conflicting submitted suffered accounts no and as evidence complained to to of his seizure support his history. Pronin allegations seizure-like activity that after he his arrival at the institution and prior to his alleged seizure in February 2013, and he presents only conclusory statements and no details treatment regarding for his his alleged seizure attempts symptoms to prior obtain to this medical date. Moreover, his grievances and medical records do not support his allegations, and while he requested seizure medication, there is no evidence that he complained of seizure-like activity prior to 10 the actual seizure. Further, Pronin’s assertions that he suffered grave injury from his seizure are not supported by the record. Finally, Pronin does not dispute Blocker’s statements that, for a substantial portion of the time Pronin contends he was being deliberately indifferent, Blocker was actually either on medical leave or not the first line of medical treatment for Pronin. Based on the foregoing, we find that Pronin has failed to raise a material issue of fact as to whether Blocker was deliberately indifferent to a serious medical need. IV. Pronin equal his next protection altercation with alleges his that Officer rights when, cellmate, Olivera-Negron after Olivera-Negron violated Pronin had removed an Pronin, who is Jewish, from his cell but allowed his cellmate, who is Hispanic, to remain. Pronin contend that the district court erred in crediting Olivera-Negron’s assertions that she was not the one who moved Pronin from his cell in the face of Pronin’s affidavit that she questioned his cellmate and not him and then gave the order to move Pronin. conflicting affidavits, we Setting aside the issue of the find that Pronin’s claim is insufficient in any event to survive summary judgment. “To succeed on an equal protection claim, a plaintiff must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal 11 treatment was the discrimination.” Cir. 2001). protection result of intentional or purposeful Morrison v. Garraghty, 239 F.3d 648, 654 (4th Though a valid claim for a violation of equal need not allege discrimination as the defendant’s sole motive, it must allege the requisite discriminatory intent with more than mere conclusory assertions. Thus, to state valid claims for violation of equal protection and thereby to survive a motion for summary judgment, Pronin must put forward specific, non-conclusory motive. factual allegations that establish improper Williams v. Hansen, 326 F.3d 569, 584 (4th Cir. 2003). In delving into the minds of prison officials, we may look to circumstantial and direct evidence of intent. Invidious discriminatory purpose may often be inferred from the totality of the circumstances. Courts should look to the direct impact of the challenged official action; the historical background of the decision, which may take into account any history of discrimination by the Defendant; the specific sequence of events leading up to the particular decision being challenged, including any significant departures from normal procedures; and contemporary statements by the decisionmaker. Id. at 584-85. We find that Pronin has failed to put forth any evidence of discriminatory intent, aside from the bare fact that Jewish and his cellmate and the officer are Hispanic. he is Pronin cites no relevant statements or similar history on the part of 12 Olivera-Negron. Finally, Pronin has provided no details from which to determine whether he and his cellmate were similarly situated. Accordingly, the district court correctly ruled that Pronin’s claim could not survive summary judgment. V. We have reviewed the remainder of Pronin’s claims, and we find no reversible error. Accordingly, we affirm the remainder of the district court’s order for the reasons stated by the district court. Pronin (D.S.C. Mar. 31, 2015). vacate the district v. Johnson, No. 5:12-cv-03416-DCN Based on the foregoing reasoning, we court’s grant of summary judgment on Pronin’s denial of access to courts claim and remand for further proceedings consistent with district’s order is affirmed. this opinion. The rest of the We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED IN PART; VACATED AND REMANDED IN PART 13
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