Cherry v. Sherin, No. 3:2010cv00434 - Document 38 (E.D. Va. 2012)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 2/28/12. Copy sent Yes(tdai, )
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IN THE UNITED FOR THE STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Richmond Division DARRYL L. CHERRY, Plaintiff, v. Civil Action No. 3:10CV434 OFFICER SHERIN, Defendant. MEMORANDUM OPINION Plaintiff Darryl L. Cherry, pro se and in forma pauperis, U.S.C. § 1983. correctional where Cherry officer Cherry was Cherry7 s Eighth at housed a Virginia prisoner proceeding brings this action pursuant to 42 asserts Deerfield at the Amendment2 that Correctional time right Defendant of to Shearin,1 Center the incident, freedom from a ("DCC") violated cruel and unusual punishment by shoving him in the back while performing a search. This matter is now Motion for Summary Judgment. before the (Docket No. 23.) the appropriate Roseboro3 notice to Cherry. 1 The Court notes that the Officer Cherry's complaint is actually Officer hereafter will refer to Shearin by the Court on Shearin's Shearin provided (Docket No. Sherin 25.) referred to in M. Shearin. The Court correct spelling of her name. 2 "Excessive bail shall not be required, nor excessive fines imposed, Const, nor amend. cruel and unusual punishments inflicted." VIII. 3 Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). U.S. Cherry has responded. (Docket Nos. 32, 33.) The matter is ripe for disposition. I. Standard for Summary Judgment Summary judgment must be rendered "if the movant shows that there is movant Civ. no is P. genuine entitled 56(a). dispute to It is the judgment to motion, and See the Celotex "[W]here trial Corp. the on a properly the be made a Id. at 324 pleadings answers to trial.'" Id. (1986)). which issue of material fact. U.S. 317, the burden of solely on interrogatories, (quoting (1986). proof at may pleadings, admissions on When the the nonmoving party must go beyond citing showing the motion the and for 323 reliance by seeking record judgment to R. the bear basis the of 477 the Fed. party summary interrogatories, facts the (internal quotation marks omitted). and, ^specific law." a motion is properly supported, the of and parts genuine issue, in answers matter fact of Catrett, dispositive material court the of v. a nonmoving party will depositions, file." inform absence as any responsibility of identify demonstrate to judgment summary to as and that former affidavits admissions there Fed. R. is a Civ. or on xx ^depositions, file,' genuine P. 56(c) designate issue and for 56(e) In draw reviewing all a justifiable party." United 832, (4th Cir. U.S. 242, 835 Inc., summary 477 judgment inferences States v. 1992) 255 in Carolina (citing (1986)). motion, the favor of Transformer Anderson However, v. court the nonmoving Co., 978 Liberty a mere Anderson, at for the "[T]here is a preliminary question whether there is literally no evidence, . . . upon whom the onus Lobby, 477 U.S. judge, not but whether there is any upon which a jury could properly proceed to the party F.2d scintilla of evidence will not preclude summary judgment. 251. "must find a verdict of proof is imposed." for Id. (internal quotation marks omitted). 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.'" Barr, 19 F.3d 1527, 1537 Tenneco Resins, Inc., 953 F.2d 909, see Fed. R. Civ. cited materials of the Motion complaint, the her Motion for P. (5th 56(c)(3) . . . ."). for Summary materials Cir. 1994) 915 & n. Forsyth v. (quoting 7 Skotak (5th Cir. v. 1992)); ("The court need consider only the Therefore, Judgment that Shearin Summary Judgment, the is Court's based upon submitted in and the materials disposition the sworn support of that Cherry submitted in opposition to the Motion for Summary Judgment. In support of her Motion for Summary Judgment, Shearin has submitted her own affidavit and those of Sergeant D. Shearin4 and R. Brown.5 (Mot. Summ. J. Ex. I ("Shearin Aff.").) submitted copies of Cherry's medical records. at 4-11.) In response, Shearin also (Docket No. 24-3, Cherry submitted his sworn complaint and attached copies of his informal and formal grievances concerning this incident, also as well as copies of his medical records. submitted "OPPOSITION OF JUDGMENT." Of his IN and a SUPPORT sworn OF document MOTION entitled FOR SUMMARY (Docket No. 33 ("Opposition Memorandum").)6 declaration must evidence. See in personal affidavit MEMORANDUM course, statement own Cherry the set Fed. the facts out R. facts Civ. affidavit knowledge, offered set or out by that P. affidavit would admissible To that sworn declaration that sworn be 56(c)(4). facts or would "must end, the made on admissible be be in in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). 4 Sgt. Shearin is a staff member at DCC who is not related to the defendant, Aff.") Shearin. (Mot. Summ. J. Ex. II ("Sgt. Shearin flfl 1, 3.) 5 R. Brown Correctional is the Center. Health (Mot. Administrator Summ. J. Ex. Ill at St. Bride's ("Brown Aff.") SI 2.) 6 Cherry also submits a Motion for Leave to Amend requesting permission to affidavits largely submit two repeat more the of his sworn own affidavits. statements Complaint and Opposition Memorandum. Nevertheless, for Leave to Amend (Docket No. 35) will be granted. in These Cherry's the Motion Therefore, "summary judgment affidavits based upon hearsay." 80 F.3d 954, 962 (4th (citing Rohrbough Cir. 1246, 1990); 1252 Md. v. 1996) Wyeth Labs., be conclusory or Applications (internal Inc., 916 & Serv. Co., citations omitted) F.2d 970, 975 Maryland, (4th 933 F.2d 1991)). Complaint and Opposition Memorandum run afoul of these basic principles. For example, of Cir. Techs. Highways Contractors Ass'n v. (4th Cir. Several Evans v. cannot in statements his from the statements Opposition fellow if offered by Cherry, R. Evid. 801, 802.7 following facts are for summary judgment. Memorandum, inmates him and Defendant Shearin. in Cherry concerning (Opp'n Mem. would be Cherry's the 5.) relates several incident between Those statements, inadmissible hearsay. See Fed. In light of the foregoing principles, the established for the purposes of the motion And, all permissible inferences are drawn in favor of Cherry. 7 about Of course, if the other inmates were to testify in court their personal knowledge that would be admissible. And, if they had submitted affidavits outlining what they would testify about, those affidavits could be considered assuming they that were based on personal knowledge and posited information was otherwise admissible. That, however, is not the current state of the record. II. A. On room Summary of Pertinent Facts Use of Excessive Force Against Cherry or at about DCC. June 6, (Compl. 2008, 4.) Cherry leaving placed Cherry was his the tray dining in appropriate tray slot and prepared for a pat down search. Cherry placed himself in and his air. felt this in upper (Id.) floor. under to who and found (Id.) Shearin, [him]" Cherry (Id.) Shearin. extended." too close was (Id.) to Hall." " [A] 11 back prevent that of a sudden [Cherry] [him] knocking stun Cherry managed to "kick himself himself from looking falling up at [his] to Sergeant the D. Cherry then turned and looked at the defendant, me.'" "standing The there defendant, (Id.) xWoman just do your job,' hall (Id. ) [his] leg force the (Id.) of Shearin with his back to her down to the floor." [him] left hands front the with Shearin, "[Cherry] . . . then both hands stated, raised back [Cherry exited] fully "^Don't up get saying, the Dining (Id. at 5.)8 For her part, Shearin states that she "was in the dining . . . observing the offenders, moving around and holding the doors for offenders in wheelchairs." (Shearin Aff. § 4.) Shearin swears that she "[does] not recall ever seeing Cherry or seeing any offender fall." (Id.) Shearin further avers that she "did not assault offender Cherry in any way as he alleges in his law suit." (Id.) Sergeant Shearin also swears that "[Defendant Shearin] did not push or assault offender Cherry as he alleges." (Sgt. Shearin Aff. 1 4.) B. Cherry's Injuries Cherry any does significant Cherry states headaches, pain in further due "[a]s stiffness back, alleges complain pain that from his not and that he Shearin's time in pain he the back of my neck." to that in (Id.) actions. progressed," his feels immediately neck, his "like he pain left Nevertheless, began in knee. needles experienced his to shoulders, (Id. ) [are] suffer Cherry sticking in Cherry asserts that, Daily I struggle with this pain. The doctor and I for the concern of my health have come to the conclusion that [I] should not take the medication continually for fear what the medicine might do to my internal organs leaving me have to deal with headaches, headflashes, neck pain upper and lower back pain, the nerve that run down from my back (lower) through my left leg and left knee. Also shoulder pain from time to time. (Opp'n Mem. 7 (capitalization corrected).) Cherry's medical records, knee and with Shearin. shoulder shoulder and incident.9 problems Brown knee that says, problems (Brown Aff. however, in predate his existed ^lSI indicate that Cherry had 4-10.) his alleged affidavit, prior to the encounter that Cherry's June 6, 2008 Brown notes that Cherry's 9 The record suggests that Cherry was moved to St. Bride's sometime after he filed his complaint on June 28, 2010 (see Compl. 1 (suggesting that Cherry was housed at Greensville Correctional Center at the time of filing)), and remained there until approximately August 30, 2011. (See Docket No. 36 (letter from St. Bride's indicating that Cherry had been transferred to another facility).) Brown swears that he has personal knowledge of Cherry's medical conditions. (Brown Aff. SI 2. ) medical records reflect staff in January, shoulders. reveal February, (Brown Aff. that that Cherry n was Cherry was seen by the and August of 2004 for pain in both 4-6.) again Cherry's medical records also seen by medical personnel shoulder pain in January 2005 and November of 2006. 9.) medical for (Id. 1SI 7- Further, [Cherry's March 26, medical 2008 [more r]ecords than two reflect months [that] before the on June 6, 2008 incident] Cherry complained of right leg pain. Cherry stated he injured himself while shadowboxing. The doctor noted that the pain Cherry described was sciatic nerve pain and that Cherry was satisfied with the explanation because he stated he had [that] injury before. (Id. "31 10.) With until respect June 13, to 2008 the to June visit 6, 2008 incident, the medical Cherry department. waited At visit, Cherry stated that on June 5, 2008, while exiting the dining hall he was pushed from behind and almost fell Cherry stated that he works out daily, to the floor. jogs, shadow boxes, and lifts weights. Cherry stated he began having headaches six days ago along with stiffness in his neck. He stated he had pain in both shoulders, his lower back, his neck and his knee. Cherry was asked to rate his pain on a scale of 1 to 10. He rated his pain to be a 4 and stated it was not constant. Cherry was prescribed Motrin for the pain. (Id. SI 11.) that III. To survive summary Analysis judgment on an Eighth Amendment claim, an inmate must demonstrate that "*the prison official acted with a sufficiently culpable state of mind (subjective component) and . . . the deprivation suffered or injury inflicted on the inmate was sufficiently Shreve, 535 F.3d 11 Benjamin, 225, F.3d be punishment Wilson v. (4th Cir. 756, from intentionality, properly (objective 238 spring requirements absent serious called cannot Seiter/ established with a 761 the component).'" 2008) (4th text condition 1996)). the imposed on an called 501 and unusual.'" U.S. ^cruel 294, regard to 298-300 each absent Id. F.3d at 761 (quoting Hudson v. ^varies McMillian, such (citing "What must be according the nature of the alleged constitutional violation.'" 77 cannot severity, (1991)). component itself; inmate and v. "These amendment ^punishment,' be v. (quoting Williams Cir. of Iko 503 to Williams, U.S. 1, 5 (1992)) . A. Excessive Force Inquiry When an inmate claims that prison officials used excessive force against his person, demanding relative to the objective component the subjective component. respect to the objective component, that the "nature" or amount of is See id. less With the inmate must demonstrate force employed "was nontrivial." Wilkins v. Gaddy, 130 S. Ct. 1175, 1179 (2010); see id^ at 1178 (observing that injury almost claim" the of component, v. an effort maliciously and 503 U.S. assist Supreme courts wantonness." omitted). in must 312, causes a valid at rko, U.S. to state inmate pain.'" 475 that U.S. to discernible excessive demonstrate 535 322 F.3d at (1986)). or the "^wantonness 239 (quoting Specifically, subjective component restore cause force Regarding ^whether force was maintain sadistically no 9)). regarding the force claim is good-faith The to 503 judicial inquiry' excessive Hudson, shove' fails the of Albers, xcore or Hudson, infliction Whitley "the ^push certainly (quoting subjective in "a applied in a discipline, harm.'" Id. or (quoting at 7) . Court has identified assessing Iko, 535 whether F.3d at a an 239 number officer (internal of "factors has acted quotation to with marks These include: (1) *the need for the application of force' ; (2) xthe relationship between the need and the amount of force that was used'; (3) the extent of any reasonably perceived threat that the application of force was intended to quell; and (4) ^any efforts made to temper the severity of a forceful response.' Id. (quoting Whitley, not dispositive, 475 U.S. at 321). Additionally, the extent of the injury suffered by the inmate is also relevant to the subjective inquiry. at of 1178. force although Wilkins, 130 S. Ct. The extent of the injury "may suggest whether the use could plausibly have 10 been thought necessary in a particular situation" or "provide some indication of the amount of force applied." Id. (internal quotation marks omitted). Comments or actions by a defendant suggesting a malicious motive also are relevant Rephann, 523 evidence force of to F.3d the 442, "From drawn as to thought necessary, to or 321 (emphasis added) 652 (7th Cir. or Shearin does with a the "standing 4.) inference 10 2008) (observing relevant to the v. that excessive inferences may be force could plausibly have been evinced such infliction of that it harm as occur." (citing Duckworth v. wantonness is Whitley, Franzen, with tantamount 475 U.S. at 780 F.2d 645, 1985)) . feeling (Compl. is Orem Analysis of Cherry's Claim Cherry after See considerations instead unjustified inquiry. Cir. motives such a knowing willingness weapon (4th whether the use of to the B. subjective 447 defendant's inquiry). respect the that From not assert closed fist "force" there this Shearin that Shearin blow. contact with his both description, pushed Cherry struck Rather, back, hands the he he her with states turned fully Court with him a that, and saw extended." can open draw the palms.10 Of course, given the facts of record, it could also be inferred that the extended hands were a demonstrative warning that accompanied her verbal statement "don't get too close to me," made while Cherry was getting up. And, if that is the inference that is drawn, the record is of dubious probative effect respecting any proof that Shearin even shoved Cherry. 11 Although, by pushing unprofessionally, Cherry, no Defendant reasonable jury Shearin could may have conclude acted that her conduct supports an inference of malicious and sadistic intent.11 "The Supreme Court has instructed that *not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a Stanley v. Hejirika, 134 Hudson, 503 U.S. at prisoner's F.3d 629, 9.) constitutional 636 (4th Cir. Accordingly, and rights.'" 1998) for (quoting the reasons articulated more fully below, Cherry's claim will be denied. 1. Need for the Application of Force Cherry states that he was standing with his back to Shearin and that his "hands [were] contact his upper back. Shearin stated, in the (Compl. "Don't get air" 4.) when Then, he felt a "force" Cherry claims, too close to me." (Id.) that Shearin's comment indicates that she perceived a threat from Cherry due to his close Shearin proximity gave Cherry her. any Nothing verbal indicates, was the favorable to that his that conduct the inference most warning however, Though this factor marginally favors Cherry, inappropriate. However, to Cherry is that Shearin shoved him. 11 "One acts cause or reason, a ^maliciously' in contrast, one acts excessive cruelty or Barnett, Third New 21 F.3d by undertaking, course of action intended to ^sadistically' by delighting 868, International 872 (8th by engaging in in cruelty." Cir. Dictionary without 1994) 1367, just injure another; (citing 1997-98 extreme or Howard v. Webster's (unabridged 1981); Black's Law Dictionary 956, 958, 1336 (6th ed. 1990); The American Heritage Dictionary 759, 1084 (2d ed. 1982)). 12 record does not maliciously that or "[t]he security permit degree of infliction . . . to pain does it find Moreover, of simply because in not that the the amount may appear Shearin Court course to in is of cruel acted mindful a and prison unusual retrospect that the force authorized or applied for security purposes was unreasonable, Whitley, jury sadistically. measure punishment a 475 applied," and U.S. id., hence at unnecessary 319. Here, in the though perhaps not it assumed that the "degree strictly strict of sense." force . . necessary,12 . was slight. In Shearin sum, if shoved Cherry, separate Cherry, thought he was judgment but is proof would that so to a physically fit inmate, from her because she it does not That certainly may did that appear close. she show would too it the reflect poor amount to cruel and unusual punishment and no jury could reasonably find that it was. 2. Relationship Between any Need and the Amount of Force Cherry has submitted no or felt Instead, 12 significant discomfort Cherry states that, The Court evidence that he cried out in pain after Shearin pushed after Shearin pushed him, recognizes the necessity of he him. stood evaluating Shearin's actions with "the appropriate hesitancy to critique in hindsight decisions necessarily made in haste, under pressure, and frequently without the luxury of a second chance." Whitley, 475 U.S. at 320. 13 up, made a comment, 5.) Nor did and walked out of the dining hall. Cherry seek immediate medical (Compl. attention. (Id. (stating that Cherry did not request medical evaluation for five days after the incident).) medical attention, Aff. SI 11.) applied eventually sought he received only Motrin for his pain. (Brown These [by factors Shearin] When Cherry indicate was not "that Barriet, No. I:10cv703 at Va. 13, 2011) (E.D. 1178.) was Thus, slight, the 3. much less (TSE/IDD), of powerful." 2011 WL (citing Wilkins, force 130 2728933, S. Ct. at though Shearin's need to use force against Cherry related to that Shearin July amount extraordinarily Robertson v. *2 the actual force used, a shove, was reasonably need. Extent of Shearin's Reasonably Perceived Threat denies shoved that she him. even (Shearin saw on f Aff. Cherry Thus, 4.) June 6, the 2008, record provides no insight into the extent of the perceived threat from Cherry. The Court can only draw comment Cherry contends that to Shearin me," that Defendant the bare Shearin made, felt inference from the "Don't get too close affronted to some degree. (Compl. 4.) 4. Shearin's Efforts to Temper the Severity the Court of her Response Likewise, Shearin's evidence that Shearin made, denial leaves or did not make, 14 without an effort to temper her response to of Shearin's inference F.3d at Cherry. perception, that Shearin As of the "delight[ed] in evidence raises cruelty." the Howard, 21 suggest or Shearin's Lack of Malicious Motive stated contradict above, a "Don't get inference too that she the Shearin perceived Further, Cherry history of had comment motive 2011) No. (the motive to 523 me" a that does are (Compl. relevant 4), to the Shearin's comment, does motive the which in not support pushing reasonable an Cherry. inference that Cherry was acting inappropriately. assert that he Shearin that would wanton 3:07cv591, fact also malicious not was comments F.3d at 447. supports conflict Inc., defendant's Orem, close Rather, Shearin's a malicious subjective inquiry. 18, none even without the benefit 872. 5. Group, Nevertheless, or and support plaintiff and an inference See malicious. 2011 WL 166289, that had Majette at *5 (E.D. that v. Va. defendant any GEO Jan. "had a contentious history" favors a finding of malicious intent). 6. Cherry's Injuries Although not dispositive, the extent of the injury suffered by the inmate is relevant to the 130 S. Ct. force injury are "may at 1178. "only Wilkins/ Though the relationship between injury and imperfectly suggest subjective inquiry. whether correlated," the 15 use of the force extent could of the plausibly have been thought necessary "provide some indication of in a particular the amount of situation" force applied." or Id. (internal quotation marks omitted). "[T]he belie the relatively notion Amendment." U.S. at that Majette, 322). just do your current [had] medical conflict 10.) as that as a result of "[rise] the did June 11, 2008, he Eighth 475 suffered any Shearin's hall. manifest Indeed, the actions. back up saying, dining not [Cherry] (citing Whitley, indicate (Id.) until *6 violated not exit ailments Cherry's suffered with Thus, ^Woman (Compl. themselves 5.) until Cherry did not request five days after the on and June support shoulder 6, Shearin's use of malicious Williams (concluding continuous knee records pain 2008. (See the well inference before his n 4- Brown Aff. the proof respecting the extent of Cherry's injuries establishing Shearin. medical from Shearin a result of 2011) conduct by (Id.) Moreover, he and progressed." evaluation incident. that does discomfort job,'" sustained 2011 WL 166289 at Cherry's response was to Cherry's "time injuries [Shearin's] Cherry immediate pain or Rather, minor v. and sadistic Scott, 433 F. that headaches, force do plaintiff's were of a not weigh in favor of intent on App'x 801, injuries, "modest the 804 neck variety" part (11th Cir. pain, which counter to a finding of malicious and sadistic intent."). 16 of and "runs Shearin's fail to other most rise words, actions, to the the while level weight favorable to of of Cherry, perhaps "maliciously sadistically Whitley, omitted). 475 U.S. For the foregoing (Docket No. be dismissed and the The to a violation. viewed reasonable ill-advised, in inference maintain good order, for the 320-21 very purpose (internal the In light that rather than of causing quotation marks Accordingly, Cherry's claim will be dismissed. IV. Judgment evidence, supports an effort harm." constitutional the Shearin acted in and a improper and Clerk is 23) Conclusion reasons, Shearin's Motion will be granted. Cherry's for Summary claim will action will be dismissed. directed to send a copy of the Memorandum Opinion to Cherry and counsel of record. It is so ORDERED. /s/ &? Robert E. Payne Senior United States District Judge Richmond, Virginia Date: February 7^, 2012 17
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