Canady v. Clarke et al, No. 3:2014cv00420 - Document 73 (E.D. Va. 2016)
Court Description: MEMORANDUM OPINION. See for complete details. Signed by District Judge Robert E. Payne on 07/19/2016. Clerk mailed copy to pro se Plaintiff. (nbrow)
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Canady v. Clarke et al Doc. 73 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division MARLON CANADY, Plaintiff, Civil Action No. 3:14CV420 v. RODERIC L. TUELL, et al., Defendants. MEMORANDUM OPINION Marlon Canady, a Virginia inmate, action under 42 U.S.C. on Defendants' § Motion 1983. 1 for has submitted this civil This matter is before the Court Summary Judgment ( ECF No. Canady' s Motion Request for a Temporary Restraining Order 5 o) , (ECF No. 65), and Canady's Motion Request for Production of Documents (ECF No. 6 9) . For the reasons set forth below, the Motion for Summary Judgment (ECF No. 50) will be granted in part and denied in part, (ECF the Motion Request for a Temporary Restraining Order No. 1 65) will be denied, and the Motion Request for That statute provides, in pertinent part: Every person who, under color of any statute of any State . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . . 42 u.s.c. § 1983. Dockets.Justia.com Production of Documents (ECF No. 69) will be denied without prejudice. On January 5, rambling, and No. 27.) 2015, 2015, the Court received Canady' s repetitive Particularized Canady v. (E.D. Complaint. (ECF By Memorandum Opinion and Order entered on October 2, the Court dismissed all of Canady' s One. lengthy, Va. Oct. Tuell, 2, No. 3:14CV420, 2015). The Court claims except Claim 2015 WL 5793678, construes the at *9 remaining claim to be as follows: Claim One: (a) Defendants R. Tuell ("Tuell"), Housing Unit Manager at Sussex I State Prison ("Sussex I") , S. Logan ("Logan") , former Corrections Sergeant at Sussex I, and S. Vancampen ("Vancampen") , 2 Corrections Counselor at Sussex I ("Defendants") , violated Canady' s Eighth Amendment rights by failing to protect him from an attack by his cell mate by refusing to allow Canady to change cells. Tuell refused to allow Canady to change cells because he had a good conduct allowance level four. (b) Canady relief. requests declaratory, injunctive, and Defendants have moved for summary judgment. responded. The matter is ripe for disposition. monetary Canady has For the reasons discussed below, the Motion for Summary Judgment will be granted in part and denied in part. While Canady names "Vancamp" as a Defendant, counsel indicates that Defendant's name is Shaun Vancampen. (Mot. Summ. J. 1, ECF No. 50). 2 2 SUMMARY JUDGMENT STANDARD I . Summary judgment must be rendered "if the movant shows that there is movant Civ. no is genuine entitled to 56(a). P. dispute The as to judgment as party any material a seeking matter of summary fact and Fed. law." the R. judgment bears the responsibility to inform the court of the basis for the motion, and to identify the parts of the record which demonstrate See Celotex Corp. absence of a genuine issue of material fact. v. Catrett, 477 U.S. 317, 323 " [W] here (1986). party will bear the burden of proof at issue, a reliance summary solely interrogatories, judgment on the motion properly dispositive be and admissions on file." When the Id. made in answers depositions, pleadings, to at 324 motion is (internal properly quotation marks supported, the nonmoving party must go beyond the pleadings and, by citing omitted). the nonmoving trial on a may the affidavits interrogatories, facts and showing that admissions there is a on file, ' genuine designate issue for (quoting former Fed. R. Civ. P. 56(c) and 56(e) In draw all party." 832, Inc. , reviewing 835 a summary justifiable United judgment inferences States v. (4th Cir. 1992) 4 77 U.S. 242, 255 answers "'depositions, or in Carolina (citing ( 1986) ) . 3 trial.' the of Transformer Anderson 'specific Id. 11 (1986)). motion, favor to v. Nevertheless, court the Co., "must nonmoving 978 Liberty F.2d Lobby, "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.'" Cir. 1994) Forsyth v. (quoting Skotak v. Barr, 19 F.3d 1527, Tenneco Resins, Inc., 1537 (5th 953 F. 2d 909, 915 & n.7 (5th Cir. 1992)). As pertinent here, Judgment, Defendants in support of their Motion for Summary submit their respective affidavits (Mem. Supp. Mot. Summ. J. Ex. 1 ("Logan Aff."), ECF No. 51-1; id. Ex. 2 ("Tuell Aff."), ECF No. 51-3); ECF No. and an 51-2; Internal Id. Ex. 3 Incident ("Vancampen Aff."), Report (Tuell Aff. Encl. A). As a general rule, a non-movant must respond to a motion for summary judgment with affidavits or other verified evidence. Celotex Corp., 477 U.S. at 324. The Court previously warned Canady that: [T]he Court will not consider as evidence in opposition to any motion for summary judgment a memorandum of law 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. 42, at 2.) Canady failed to comply with this directive. Instead, he filed a document entitled "AFFIDAVIT IN OPPOSITION TO ("Opposition," DEFENDANTS ECF No. 57) MOTION comprised 4 FOR SUMMARY JUDGMENT" of numbered statements where he admits or denies portions of the Defendants' Memorandum in Support of Motion for Summary Judgment, provides legal argument, and makes unsupported conclusions upon which he has no firsthand knowledge. The Court will not accord the Opposition any evidentiary value. Additionally, Complaint." Canady submitted an unsworn Canady also states the following: "Particularized "I have read the foregoing complaint, and hereby verify that the matters alleged therein, are true, and belief, except as to matters alleged on information and, as to those, I believe them to be true. I certify under penalty of perjury that the foregoing is true and correct." (Part. transform the Compl. statements admissible evidence. 2161100, at statements *2-3 sworn 68.) in the a statement fails Particularized Complaint (E.D. Va. June under penalty of 1, Tyler Cty. 2001))). "on Comm'n, Therefore, after 11 F. the information and belief" effect. into (treating 2011) perjury, but made information and belief as '"mere pleading allegations'" Walker v. to Hogge v. Stephens, No. 3:09CV582, 2011 WL & n.5 to Such App'x 270, not be (quoting (4th Cir. ref erred matters will 274 upon to as afforded evidentiary Attached to his Opposition and filed more than a year his Particularized CANADY, pro se plaintiff, penalty of perjury that Complaint, hereby the 5 Canady certify, information states: or declare asserted "MARLON under in My Particularized Complaint, and in this Affidavit in Opposition to Defendants' Motion for Summary Judgment is true, the best doubtful of my that admissible (Opposition knowledge." Canady's evidence, Particularized because and correct to While 28.) Complaint Defendants fail it is constitutes to lodge any objection to the admissibility of the Particularized Complaint, the Court nevertheless considers the Particularized (except where based on information and belief) Complaint in assessing the propriety of entering summary judgment. Turning Complaint, to the contents of Particularized Canady's "sworn statements 'must be made on personal knowledge and show that the aff iant or declarant is competent to testify to Therefore, the matters Fed. stated. '" R. Civ. 56(c) (4). "summary judgment affidavits cannot be cone 1 usory or based upon hearsay." Evans v. Techs. Apps. & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996) "affirmative personal The absence of an (citations omitted). prevents P. the showing of consideration of knowledge such facts of in specific facts" conducting the summary judgment analysis." EEOC v. Clay Printing Co., 955 F.2d 936, (internal quotation marks omitted). 945 n.9 Canady's (4th Cir 1992) Particularized requirements. The Complaint Particularized runs Complaint afoul of contains these numerous legal conclusions and matters upon which Canady has no personal knowledge, and thus fails to comply with Federal Rule of Civil 6 Procedure 5 6 ( c) ( 4) . 3 conclusions knowledge or in The matters its Court upon will consideration of consider Canady which not has the any no propriety legal personal of summary judgment relief. In light of the foregoing principles and submissions, the following facts are established for the purposes of the Motion for Summary Judgment. All permissible inferences are drawn in favor of Canady. II. A. SUMMARY OF PERTINENT FACTS Facts Pertaining To Defendant Logan Either on March 6 or March 13, 2012, Canady' s cell mate Ernest M. Jones called Logan to their cell to report that Canady (Part. had threatened him and possessed weapons. Compl. 19.) Logan found large stones outside the cell door near where Jones stood. (Id. 20.) Canady explains that stones "to put in pillow cases and socks, inmates used large so an inmate may bash another inmate in the head or striking other body parts to cause injuries. Both inmates denied ownership of the stones." (Id. For example, Canady states: "It is plaintiff's belief that Jones may had planted some type of weapon in plaintiff's area of the cell, or in plaintiff's property to cause a disciplinary infraction to be written, and moving plaintiff to the segregation unit." (Part. Compl. 35.) Canady also indicates that Vancampen locked Jones and Canady "in separate showers on separate tiers of the pod" (id. 3 7) , but then claims that even though he was locked in a shower that he somehow personally knew that "Defendants did not do a thorough check of plaintiff's cell, and only searched under inmates ['] mattresses" (id. 39). 3 7 20-21.) to Logan warned both inmates "that if she had to return [the] cell for disciplinary charges, (Id. any reason, and send she was going [both inmates] them that Tuell made those decisions. (Id. write to segregation." Both inmates asked for a cell change. 24.) to Logan told 25.) Logan has no recollection of speaking with Canady about a cell change or finding large stones outside of the cell. Aff. 5.) As a Sergeant, changes at Sussex. (Id.) (Logan Logan had no authority to make cell However, Logan avers: Had either offender told me that he had been threatened by his cellmate, and especially if weapons were mentioned, I would have immediately notified my supervisor, the Housing Unit Manager. The offenders would have been brought out of the cell and the cell would be searched for weapons. In addition, situations requiring immediate separation of offenders could also be handled by the Building Lieutenant who would have the authority to immediately separate the offenders. At no time would I force offenders to stay in a cell together when threats are being made or weapons may be involved. I would never ignore this kind of situation. (Logan Aff. B. 5.) Facts Pertaining To Defendant Tuell Canady avers that, on approximately March 27, 2012, he told Tuell that "he wanted a him in the head with a cell change because crutch" [Jones] had struck and that Jones had removed the screws from the crutches and made a weapon with the intention to stab Tuell Canady. (Part . Compl. "did absolutely nothing, 26- 27 . ) and told 8 According [Canady] to Canady, that he would look into his recollection complaint. about speaking striking him with a with Tuell 30.) Canady no his cellmate conflict (Tuell Aff. about has conversation about a crutch or a between the two inmates. (Id. 11 However, 4-5.) Tuell avers that had Canady informed him of such an incident, he would have immediately removed him from the cell and taken him to the medical department for evaluation. explains that Canady segregation pending Of fenders 4.) together in a and the would (Id. Jones would have investigation of not be allowed Tuell further 5.) been their to placed claims. remain in in (Id. a cell situation where one is allegedly assaulting the other, or there are claims of weapons. C. Facts Pertaining To Defendant Vancampen On either April 10 or 17, that Canady had (Part. Compl. threatened him 34.) Jones 2012, informed Vancampen and had weapons in the cell. Canady told Vancampen that it was Jones 4 that had the weapons and Jones was trying to get Canady removed from the unit. (Id. Vancampen locked Jones and Canady 36.) in different tiers of the pod. (Id. 37.) After a search of the cell, no weapons were found. (Id. gave [Canady and Jones] a choice, [ ]either go into the cell, or go a to jail (segregation) (Disobeying an order) . 4 11 with (Id. 40.) 201 39.) "Vancamp[en] then disciplinary Vancampen avers that he Canady avers that this information was false. 9 offense. has no knowledge of this claim; security procedures, however, "[i] n accordance with I would not have placed the two offenders back in the cell after the cell was searched for weapons. I would have moved Jones or Canady to segregation for their safety and protection." "[w] hile then in (Vancampen Aff. segregation, evaluate the the off enders Vancampen explains that 4.) Institutional and their Investigator claims to would determine (Id.) suitable housing assignment in a different housing unit." In late April and early May 2012, Canady made two more verbal (Part. requests to Vancampen to have his cell changed. 43.) 5 Tuell avers that no a policy exists at Compl. Sussex I that prevents Good Conduct Allowance Level IV classified inmates from being moved (Tue 11 Af f . to another 7.) cell, especially Moreover, relation to [an inmate's] Good for safety Conduct Allowance reasons. "has no cell assignment, and is not considered in making cell assignments." "An offender may request a cell change by submitting a cell change request form to his assigned counselor. readily available to offenders The forms are through the floor officers and control room officers in the housing units. Standard requests are routed to the Housing Unit Manager for review." (Id. On emergency. the form, an offender may note if it is an 5.) Canady alleges that two correctional officials advised him that his cell change was denied because Sussex denied cell changes for inmates with a Good Conduct Allowance level of four. (See Part. Compl. 47, 49.) 5 10 (Vancampen Aff. 5.) Either Jones or Canady could have submitted a cell change request form or told any staff member they were in danger. housed in a security general staff, (Tuelll Af f. population medical Jones and Canady are 6.) building staff, and have access counselors. and to (Id. ) "Supervising security staff members working in the housing unit have authority to take immediate action to place offenders in segregation including when obvious threats, conflict assaults and exists claims between of cellmates weapons." (Id.) Sergeants and Lieutenants have the discretion to move off enders to immediately and then notify their supervisor, required to wait for approval from Tuell. avers that " [a] s a Building Sergeant, [he] and are not Vancampen (Id.) had the authority to move of fenders to segregation for their safety" and "would then have notified (Vancampen Aff. D. supervisor, the Housing Unit Manager." 5.) Facts Pertaining To The Assault On June 5, in his [his] forehead broken leg, 2012, Jones attacked Canady, (requiring stitches)" and "stabbed Canady (fibula fracture at right ankle, [Canady] "suffered a lateral malleolus) and tendon damage to his right index finger" from his attempt to defend himself. aver that (Part. Compl. 18, 50.) they were not at work on June Vancampen and Logan 5, 2012 and had no knowledge of a need to separate Jones and Canady or that a fight 11 took place between the two inmates. Aff. 6.) however, Tuell he has provides no the (Logan Aff. recollection Internal of Incident 6; Vancampen the altercation; Report indicating that an altercation occurred between Jones and Canady on June 5, 2012. (Tuell Aff. 7.) III. A. As ANALYSIS Official Capacity a preliminary matter, Defendants in their official these claims are dismissed. Police, 491 officials under § U.S. to 58, the extent capacity for See Will v. (1989) 70-71 of State that sued in their official capacities are not state "persons" 1983.) Failure To Protect Legal Standard Eighth Amendment protect prisoners prisoners.'" (quoting Farmer from v. Cortes-Quinones (1st Cir. imposes duty on prison officials violence Brennan, v. a caused liability by for another the failure the U.S. hands 825, Jimenez-Nettleship, 1988)); see Cox v. Quinn, prisoner's safety. claim for at 511 3620189, at *4 (4th Cir. July 6, 2016). harm damages, Dep' t (explaining The 558 Canady sues monetary Mich. B. "'to that inmate officers a 12 842 other (1994) F.2d 556, 2016 WL Nevertheless, not every into constitutional responsible See Farmer, 511 U.S. at 834. to protect, 833 --- F.3d ----, translates corrections of plaintiff must for the To establish a show: ( 1) a "serious or significant physical or emotional injury," De' Lonta v. Angelone, 330 F.3d 630, prison officials had a Farmer, Court 511 U.S. has 634 (4th Cir. 2003), and (2) that "sufficiently culpable state of mind." at 834. emphasized As to the second prong, that it is conscious the Supreme disregard for intolerable risks that provides the touchstone of the deliberate indifference standard for Eighth Amendment claims: [A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Id. at 837. Thus, Farmer teaches "that general knowledge of facts creating a substantial risk of harm is not enough. prison general inmate." official facts must and also the draw specific the risk inference of harm between The those confronting the Johnson v. Quinones, 145 F.3d 164, 168 (4th Cir. 1998) (citing Farmer, 511 U.S. at 837); Rich v. Bruce, 129 F.3d 336, 340 (4th Cir. 1997)). In Farmer, the Supreme Court did not address " [a] t what point a risk of inmate assault becomes sufficiently substantial for Eighth Amendment purposes." it is understood that 511 U.S. at 834 n.3. However, "prisons are dangerous places. Inmates get there by violent acts, and many prisoners have a propensity to commit more . " Riccardo v. Rausch, 13 375 F.3d 521, 525 (7th Cir. 2004) . Thus, "[a] ny time an individual is incarcerated, there is some risk that he may be a victim of violence at the hands of fellow inmates." 67 , 74 ( E . D . Va . 19 9 5 ) . inherent claim. to prison Westmoreland v. Brown, Therefore, life See Grieveson v. cannot Supp. a baseline risk of assault support Anderson, 883 F. 538 an Eighth F. 3d 763, Amendment 776-77 (7th Cir. 2008). Here, it is undisputed that Canady suffered a significant physical injury. serious or Thus, this matter turns on whether Defendants knew of a substantial risk of harm to Canady. evidence of Makdessi v. a defendant's Fields, actual 789 F.3d 126, Farmer, 511 U.S. at 842-43). knowledge 133 is not (4th Cir. Direct required. 2015) (citing Instead, [a] prison official's subjective actual knowledge can be proven through circumstantial evidence showing, for example, that the 'substantial risk of inmate attacks was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued has been exposed to information concerning the risk and thus must have known about it.' Id. at 133 (some internal Farmer, 511 U.S. at 842). he in oblivious was seriousness example, he may not marks omitted) (quoting "' [E] ven a guard able to prove that to escape an obvious liability injury of if it is sufficient shown, for that he merely refused to verify underlying facts that strongly confirm fact quotation suspected inferences of to be risk true' that 14 or he that he strongly 'declined to suspected to Id. exist. '" at 133-34 (quoting Brice v. (4th Cir. threat (some internal quotation marks omitted) Virginia Beach Corr. 1995)). "On the other hand, increases, the likelihood impending harm decreases. to respond." So, Dale v. Poston, to, of Ctr., as 58 F.3d 101, 105 the vagueness of a actual knowledge of does the official's ability 548 F.3d 563, 569 (7th Cir. 2008) (internal citation and quotation marks omitted) . To rebut the deliberate indifference charge, in the face of obvious risk, defendants may show, not the know of underlying substantial danger danger, that or and they (albeit unsoundly) that knew "'for example, facts indicating they were the that they did a sufficiently therefore unaware underlying facts but of a believed that the risk to which the facts gave rise Makdessi, was insubstantial or nonexistent.'" 789 F. 3d at 134 (quoting Farmer, 511 U.S. at 844). B. Defendant Logan In early March 2012, to their cell to report Canady's cell mate Jones called Logan that Canady had threatened him and possessed weapons and Defendant Logan found large stones outside the cell door near where Jones stood. Both inmates denied According to Canady, to return to [the] ownership of the (Part. Compl. stones. (Id. 19-20.) 21.) Logan warned both inmates "that if she had cell for any reason, disciplinary charges, and send she was going to write [both inmates] 15 to segregation." (Id. 24 . ) Both inmates asked for a told them Tuell made those decisions. cell change, (Id. and Logan 25.) Logan has no recollection of speaking with Canady about a (Logan cell change or finding large stones outside of the cell. Af f. her 5.) Nevertheless, actions were the undisputed facts demonstrate that reasonable. Contrary to that Jones was violent and the aggressor, Canady' s assertion and Logan failed to protect him, the facts alleged by Canady tend to establish that as 2012, of March Canady instead had And, threatened Jones. Canady has not produced any admissible evidence that Jones was particularly inclined to assault him as e.g., Billman v. Ind. Dep't of Corr., 1995) . Moreover, Canady has not of March 56 F.3d 785, 2 012. 788 produced evidence (7th Cir. reflecting that Logan knew of any threats by Jones directed toward Canady. See Whaley v. Erickson, 339 F. App'x 619, 622 (7th Cir. 2009) (granting summary judgment for defendants because the plaintiff unever told the defendants specific threats to harm him, any of the defendants knew that [the assailant] had made and he presented no evidence that about [the assailant's] purported propensity for violencen). After establish the early March that Logan had 2012 any incident, personal Canady involvement purported deprivation of his Eighth Amendment rights. record, fails in to the On this Canady has not produced sufficient evidence to allow a 16 reasonable Canady faced Johnson, that juror to a infer that substantial 145 F. 3d at 168. Logan actually perceived that risk of harm from Jones. See Because Canady fails to demonstrate Logan acted with deliberate indifference, Claim One (a) to the extent that Canady contends in Claim One (b) against Logan will be dismissed. C. Defendant Tuell First, that two prison officials informed him that "his cell change was denied because his (Part. Compl. 48) purported policy of the [Good Conduct Allowance] and (id. existence faults for implementing this Canady has put forth no evidence 120), of Tuell Level was a four," such policy. To the contrary, the undisputed evidence establishes that no such policy existed at Sussex I that classified prevented inmates from Good being Conduct moved Allowance to another Level cell, IV and, instead, Good inmate's] cell assignment, and is not considered in making cell assignments." Canady contends Conduct Allowance (Tuell Af f. that Tuell 7.) 6 "has no Thus, implemented a relation to the policy to extent that [an that denied Canady a cell change based on his Good Conduct Allowance Level 4, that hearsay. claim is speculative and is based upon inadmissible Claim One (b) will be dismissed. Canady merely alleges that such a policy exists without any evidence to support his claim. 6 17 Second, in Claim One (a), Canady faults Tuell for failing to protect him from the assault by his roommate on June 5, 2012. In late March 2012, Canady informed Tuell that he wanted a cell change because Jones had struck him in the head with a crutch, and Jones Canady. had fashioned (Compl. absolutely nothing, his complaint. " records (Id. 31.) and told (Id. the intention [Canady] to stab Tuell According to Canady, "did that he would look into Tuell also told Canady that the 30.) in charge of Canady contends that, that Canady was Jones, weapon with 26-27.) department was a authorizing cell because Tuell struck in the head with a changes. "was advised crutch by cellmate and also was advised that cellmate made a weapon . with the intent to stab Canady" protect Canady from the swears 116), attack by Jones more later, on June 5, 2012 (id. Tuell (id. that Tuell failed to than two months 112). he has interaction with Canady, but that, no recollection of this if Canady had informed him of such an incident, he would have immediately removed him from the cell and taken him to medical, and then both Canady and Jones would have been placed in segregation. (Id. 4.) An equivocal response is insufficient to create a genuine issue of material fact. See Dickey v. Baptist Mem'l Hosp.-N. Miss., 146 F.3d 262, 266 n.1 (5th Cir. 1998) swearing that he (5th Cir. 1998) "has no present 18 (explaining that affiant recollection of the conversation . is not enough, by itself, to create a genuine issue of material fact"); see Fed. R. party opposing summary judgment Civ. P. to point 56 (requiring the to specific evidence that creates a general issue of material fact) . Besides denying any recollection of his Canady and providing standard procedure threats or cell changes, On the current addressing inmate Tuell has not addressed adequately why his actions or inaction on March 27, indifferent to a for conversation with 2012 were not deliberately serious risk of harm to Canady in June 2012. record, Canady has presented evidence to show that he informed Tuell that Jones had injured him and possessed a weapon, and Tuell did nothing. Such evidence is sufficient to support a claim of deliberate indifference against Tuell. Cox, 2 0 16 WL 3 6 2 O18 9 , at * 5 - 6 . Accordingly, See Tuell's Motion for Summary Judgment with respect to Claim One (a) is denied. D. Defendant Vancampen Canady avers that, on either April 10 or 17, Jones 2012, falsely reported to Vancampen that Canady had threatened him and that Canady had weapons in the cell. (Part. Compl. 34.) Canady says that he told Vancampen that it was Jones that had the weapons and that Jones was trying to get Canady removed from the unit. (Id. 3 6.) As a result, Vancampen locked Jones and Canady in different tiers of the pod, searched their cell, found no weapons, and then directed both inmates to return to their 19 (Compl. cell or go to segregation. that, for in late April and early May, a cell change. ,, 37-41.) he verbally asked Vancampen , 43.) (Id. Canady states Vancampen denies any recollection of this incident, but avers that he would not place Canady and Jones back in their cell after it was searched for weapons in accordance with security procedures. , 4.) (Vancampen Aff. Vancampen also avers that he lacked the ability to assign Canady to another cell, but that he could have moved him if he was being physically threatened or weapons were present and the situation required immediate action. (Id. , 5.) The vague information that Canady had weapons in the cell and was threatening Jones insufficiently demonstrates that Vancampen should be deemed subjectively aware that Canady faced a substantial risk of substantial [Jones] was risk of imminent assault at serious would violently attack 'almost Miller v. certain Fisher, to 381 harm means [Canady] materialize F. App'x Jones' s that was if 594, hands. the risk 'so great' nothing 596-97 "A that that it [was] done.'" (7th Cir. 2010). Canady provides no evidence that Jones was "almost certain" attack him. Canady has produced no evidence to ref lee ting that Vancampen knew of any threats by Jones directed toward Canady. See Whaley, 339 F. App' x evidence demonstrates that, at 622. To the contrary, Canady' s in April 2012, Vancampen would have reasonably perceived that Canady, 20 not Jones, was the aggressor. Additionally, not Canady's communications to Defendant Vancampen do reflect that Canady feared an attack by Jones, but that Canady might be the aggressor in any future violence. See Bond v. Va. Story, 17, No. 2011) 3:09CV147, (citing 2011 WL 5599390, Miller, 381 Vancampen investigated the at *4 App'x F. report at (E.D. Nov. Moreover, 597). and found no weapons in the cell. After that the April Vancampen had 2012 any incident, personal Eighth Amendment violation. evidence that, Canady fails involvement Canady fails in to indifferent to that risk. evidence to actually perceived the purported of fer sufficient allow a and that Vancampen was deliberately Canady simply has not produced enough reasonable that Canady juror to faced a infer will grant Vancampen' s Motion that substantial attack from Jones before Jones assaulted Canady. Court establish in April 2012, Canady suffered a substantial risk of serious harm from Jones, the to for Vancampen risk of Accordingly, Summary Judgment. Claim One (a) against Defendant Vancampen will be dismissed. V. Canady Restraining has OUTSTANDING MOTIONS filed Order against a Motion officials Request for who not are a Temporary Defendants in the instant action to prevent them from transferring Canady away 21 from Keen Mountain Correctional Facility. 7 seeks is wholly unrelated to this action. Motion Request for a will be denied. The relief Canady Accordingly, Canady's Temporary Restraining Order (ECF No. 65) Canady remains free to file a complaint against these individuals in a new action in the appropriate venue_. Canady also has Production of Documents. March 1 7, 2016, filed a (ECF No. second Motion for Request Canady states that, 69.) on he mailed his "First Request for Production of Documents" to counsel for Respondent and he has not received the requested documents. (Mot. Prod. Docs. 1.) Canady now simultaneously submits this second Motion Request for Production of Documents to the Court and to counsel for Respondent. Court reminds informal Canady that discovery is basis. The to be conducted on an No motion concerning discovery may be filed with the Court until the parties have made a good faith effort to resolve all legitimate discovery disputes. Civ. R. 37 (E). See E.D. Va. Loe. The Court reminds Canady that discovery requests must be reasonable and relevant to the issues presently before the Court. At the present, Canady's twenty-two page request is far from reasonable and relevant to the issues remaining in this action. Canady must also certify that a good faith effort has been made to resolve the discovery matter at issue by conferring Canady names Jeffery B. Kiser, Warden at Keen Mountain Correctional Center; Henry Ponton, the Western Regional Director; and Keith Dawkins, Central Classification Manager. 7 22 with counsel for the defendants regarding the resolution of such matters. Fed. R. Civ. P. 37(a) (1). Production of Documents (ECF No. Canady's Motion Request for 69) will be denied without prejudice. VI. CONCLUSION For the forgoing reasons, the Motion for Summary Judgment (ECF No. 50) will be granted in part and denied in part. One against (a) dismissed. Defendants Claim One proceed on Claim One (b) (a) Logan and Vancampen will be dismissed. against Tuell, Claim will be The matter will and will be placed on the trial calendar. The Opinion Clerk to is Canady directed to and Attorney the send a copy of General's the Memorandum Office for Commonwealth of Virginia. It is so ORDERED. Date: / -Z,,,//, Robert E. Payne Senior United States District Judge 23 the
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