Hogge v. Stephens, Civil Action No. 3:09CV582

• Decision Date: 01 June 2011
• Docket Number: Civil Action No. 3:09CV582
• Court: U.S. District Court — Eastern District of Virginia
• Parties: THOMAS K. HOGGE, Plaintiff, v. HARVARD STEPHENS, et al., Defendants.

THOMAS K. HOGGE, Plaintiff,

v.HARVARD STEPHENS, et al., Defendants.

Civil Action No. 3:09CV582

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

Dated: June 1, 2011

MEMORANDUM OPINION

Plaintiff, a Virginia inmate proceeding pro se and in forma pauperis, filed this civil action under 42 U.S.C. § 1983. Plaintiff's complaint arises out of allegations that Defendants¹ improperly diagnosed and treated Plaintiff for hepatitis C while Plaintiff was incarcerated at Deerfield Correctional Center ("DCC"). Defendants Badgett, Johnson, Amonette, and Hoffman filed a motion for summary judgment (Docket No. 52) as did Defendants Harris (Docket No. 57) and Manickavasagar (Docket No. 65). Plaintiff has responded to these motions. These matters are now ripe for disposition.

I. PROCEDURAL HISTORY

On September 9, 2009, Plaintiff filed a complaint against Defendants.² Plaintiff complains about the quality and quantity of treatment he has received for hepatitis C and a mass on his lung. By Memorandum Opinion and Order entered on September 24, 2010, the Court denied the motions to dismiss filed by Defendants Johnson, Badgett, Manickavasagar, Harris, Amonette, and Hoffman. (Docket Nos. 45, 46.) The Court granted the motion for summary judgment filed by Defendants Schilling and Davis because Plaintiff sought relief from them on a vicarious liability theory. The Court also granted Defendant Stephens's motion for summary judgment because Plaintiff failed to produce evidence indicating that Defendant Stephens was deliberately indifferent to Plaintiff's medical needs.

Plaintiff's remaining claims are as follows:

Claim 1 Plaintiff's Eighth Amendment³ rights were violated by the level of treatment given for his hepatitis C by:

(D) Defendant Amonette;

(E) Defendant Harris;

(F) Defendant Hoffman;

(G) Defendant Manickavasagar;

(1) with respect to the CT scans;

(2) with respect to the Plaintiff's multivitamin;

(3) with respect to Plaintiff's soft tissue swelling;

(4) with respect to the hepatitis A and B vaccinations;

(H) Defendant Badgett;

(I) Defendant Johnson; and,

(J) Defendant Robb.

Claim 2 Plaintiff's Eighth Amendment rights were violated by the level of treatment given for a mass in his lung by:

(D) Defendant Manickavasagar; and,

(E) Defendant Badgett.

II. SUMMARY JUDGMENT STANDARD

Summary judgment must be rendered "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). It is the responsibility of the party seeking summary judgment to inform the court of the basis for the motion, and to identify the parts of the record which demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file." Id. at 324 (internal quotation marks omitted). When the motion is properly supported, the nonmoving party must go beyond the pleadings and, by citing affidavits or "'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Id. (quoting former Fed. R. Civ. P. 56(c) and 56(e) (1986)). In reviewing a summary judgment motion, the court "must draw all justifiable inferences in favor of the nonmoving party." United States v. Carolina Transformer Co., 978 F.2d 832, 835 (4th Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., All U.S. 242, 255 (1986)). Nevertheless,"'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."' Forsyth v. Ban, 19 F.3d 1527, 1537 (5th Cir. 1994) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 & n.7 (5th Cir. 1992)).

The parties have submitted numerous documents and affidavits. Of course, the facts offered by affidavit must be in the form of admissible evidence. See Fed. R. Civ. P. 56(c)(2). In this regard, the statement in the affidavit or sworn statement "must be made on personal knowledge . . . and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). Furthermore, summary judgment affidavits must "set out facts." Id. Therefore, "summary judgment affidavits cannot be conclusory or based upon hearsay." Evans v. Techs. Apps. & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996) (internal citation omitted) (citing Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970, 975 (4th Cir. 1990); Md. Highways Contractors Ass'n v. Maryland, 933 F.2d 1246, 1252 (4th Cir. 1991)). The absence of an "affirmative showing of personal knowledge of specific facts" prevents the consideration of such facts in conducting the summary judgment analysis.⁴ EEOC v. Clay Printing Co., 955 F.2d 936, 945 n.9 (4th Cir. 1992) (internal quotation marks omitted).

At this stage, the Court is tasked with assessing whether Plaintiff "has proffered sufficient proof, in the form of admissible evidence, that could carry the burden of proof of his claim at trial." Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1316 (4th Cir. 1993) (emphasis added). The Court notes that although Plaintiff's complaint is unsworn, Plaintiff attempts to transform his unsworn complaint (Docket No. 1), his responses to previously denied motions to dismiss (Docket Nos. 20, 30), and his responses to the various motions for summary judgment (Docket Nos. 63, 64, 71) (collectively, the "Putative Verified Pleadings") into sworn pleadings. Plaintiffattempts to do so by including a verification at the beginning of each of his responses to Defendants' motions for summary judgment. The verification states:

I, Thomas K. Hogge,... reallege all claims and allegations within the original filing, Plaintiffs Response to the Motion to Dismiss and the Memorandum in Support and hereby verify that the matters alleged therein are true except as to matters alleged on information and belief, and as to those, I believe them to be true. I certify under penalty of perjury that the foregoing is true and correct.

(Resp. Mot. Summ. J. (Docket No. 71) 1; see also Docket Nos. 63, 64.) Plaintiff attempts to verify his responses to motions for summary judgment by including a similar verification at the end of each document. (Docket Nos. 63, 64, 71.)

This verification is substantially similar to that analyzed in Walker v. Tyler County Commission, 11 F. App'x 270, 274 (4th Cir. 2001).⁵ In Walker, the United States Court of Appeals for the Fourth Circuit did not permit such verification to transform the complaint into an affidavit because the complaint did not indicate which factual allegations were based on the plaintiffs' personal knowledge. Id. at 274 (explaining that former Federal Rule of Civil Procedure 56(e) required an affidavit opposing a motion for summary judgment to be based on personal knowledge). The Fourth Circuit regarded the complaint as resting on "mere pleading allegations." Id.

The Fourth Circuit's Walker decision applies with equal force to Plaintiff's verification. The Federal Rules of Civil Procedure require that "[a]n affidavit or declaration used to support oroppose a motion [for summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). Plaintiff's verification does not suggest that every statement set forth in the Putative Verified Pleadings are based on Plaintiff's personal knowledge or that Plaintiff is competent to testify on the matters stated. A review of the Putative Verified Pleadings confirms, for example, that Plaintiff is attempting to swear to "standard [medical] practices and procedures" based on his own reading of inadmissible medical journals. (Compl. 7.)⁶ Plaintiff's averment regarding what he believes constitutes the appropriate, accepted standard of medical care for hepatitis C is simply not admissible. See Bell v. Kolongo, No. 1:03cv00501, 2004 WL 3247156, at *4 (E.D. Va. Oct. 25, 2004) (granting motion to strike inmate's statements regarding the accepted standards of medical care).

Moreover, a verification "based upon '[the plaintiff's] own personal knowledge or upon his information and belief" is insufficient for the purposes of opposing a motion for summary judgment because such verification avoids the possibility of perjury. Price v. Rochford, 947 F.2d 829, 832 (7th Cir. 1991) (emphasis added); see Causey v. Balog, 162 F.3d 795, 803 n.4 (4th Cir. 1998) ("Because we cannot assess whether Causey had first hand knowledge of these facts or whether he is competent to testify to them, we cannot consider them in our review." (citing Price, 947 F.2d at 832; Sellers v. M.C Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988))); Reed v. Richards, No. 93-1190, 1994 WL 259442, at *2-3 (7th Cir. June 13, 1994).

Accordingly, the Court construes Plaintiff's Putative Verified Pleadings as "mere pleading allegations." Walker, 11 F. App'x at 274; c.f. Bowman v. Johnson, No. 3:08cv449, 2011 WL 1167320, at *2 n.2 (E.D. Va. Mar. 24, 2011) (prohibiting a post hoc declaration of truth from transforming an unsworn complaint into admissible evidence). Nevertheless, to the extent that Plaintiff's responses to the motions for summary judgment direct the Court to specific statements in the Putative Verified Pleadings, as they must, Fed. R. Civ. P. 56(c)(3), the Court will undergo an independent analysis regarding the admissibility of those statements. Evans, 80 F.3d at 962 (upholding district court's disregard of "many portions" of an affidavit, instead of the entire affidavit, which the district court deemed improper in accordance with Federal Rule of Civil Procedure 56); see also Walker, 11 F. App'x at 274.

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