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Owle v. Solomon

United States District Court, W.D. North Carolina, Statesville Division

May 22, 2017

DAVID KRISTOPHER OWLE, Plaintiff,
v.
GEORGE T. SOLOMON, Director of Prisons/Director of North Carolina Department of Public Safety, NORTH CAROLINA DEPARMENT OF PUBLIC SAFETY, FRANK PERRY, Secretary, North Carolina Department of Public Safety, PAULA SMITH, M.D., Director of Medical Services, SUSAN WHITE, Administrator, Alexander Correctional institution, ERIC DYE, Assistant Superintendent, Alexander Correctional Institution, RAYMOND L. HAMILTON, Captain, Alexander Correctional Institution, STEPHANIE MILLER, Sergeant, Alexander Correctional Institution, JOSHUA QUINN, Sergeant, Alexander Correctional Institution, WILLIAM FARRIS, Unit Manager, Alexander Correctional Institution, AMY JENKINS, Manager, Alexander Correctional Institution, Defendants.

          ORDER

          Richard L. Richard L. Voorheess United States District Judge

         THIS MATTER IS BEFORE THE COURT on Defendants' Motion for Summary Judgment. (Doc. 18). Also before the Court is Defendants' Motion to Strike Document 32-2, which includes the affidavit of Plaintiff's Counsel, Mary March Exum, and an unsworn, draft affidavit that Plaintiff's Counsel alleges is representative of conversations she had with Sergeant Richard Wilson. (Doc. 34). Having been fully briefed (See Docs. 19, 32-33, 35, 37-38), both Motions are now ripe for disposition. For the reasons stated below, Defendants' Motion to Strike (Doc. 34) is GRANTED IN PART and DENIED IN PART and Defendants' Motion for Summary Judgment (Doc. 18) is GRANTED.

         I. BACKGROUND

         Plaintiff David Kristopher Owle, a North Carolina inmate who suffers from sleep apnea, filed a three-count action alleging that Defendants denied him access to medical care when, for nine nights, they failed to place him in a cell with an electrical outlet so that he could operate his Continuous Positive Airway Pressure (“CPAP”) Machine. At all times relevant to this action, Plaintiff was housed at Alexander Correctional Institution (“ACI”). (See Doc. 32-1). Plaintiff was initially diagnosed with sleep apnea in July 2008 and first obtained a CPAP Machine in October 2008. (Doc. 20-15 at 3-4; Doc. 32-1 at 2). In March 2015, Plaintiff was housed in the Green Unit at ACI. (Doc. 20-5 at 2-3; Doc. 32-1 at 3). On the morning of March 29, 2015, prison staff, led by Defendant Stephanie Miller, the Green Unit Sergeant-on-Duty, ordered inmates housed in the Green Unit to relocate to cells in the Red Unit. (Doc. 20-5 at 3; Doc. 32-1 at 3).

         Upon receiving the order to move to the Red Unit, Plaintiff, who had an electrical outlet in his Green Unit cell, expressed concern to Defendant Miller about whether his new cell in the Red Unit would also have an electrical outlet. (Doc. 20-5 at 3; Doc. 32-1 at 3). Defendant Miller advised Plaintiff that he would need to discuss the matter with the Red Unit Sergeant-on-Duty. (Doc. 20-5 at 3; Doc. 32-1 at 3). Upon arriving in the Red Unit, Plaintiff found that there was no electrical outlet in his new cell. (Doc. 32-1 at 3). Plaintiff spoke with Officer Bowlin, who escorted Plaintiff to Defendant Joshua Quinn, the Red Unit Sergeant-on-Duty. Id. Defendant Quinn informed Plaintiff that he would put a maintenance work order in for the electrical order and Quinn attests that he did so that day. Id.; (Doc. 20-4 at 2). Later that day, Plaintiff alleges he spoke with Defendant Richard Hamilton, a Captain at ACI, about the lack of an electrical outlet and that Defendant Hamilton informed Plaintiff that he would put a work order in for the outlet.[1](Doc. 32-1 at 3). No one from the maintenance department installed the electrical outlet on March 29, 2015. See Id. at 3-4.

         On March 30, 2015, Plaintiff spoke with another officer on the Red Unit about his need for an electrical outlet so that he could use his CPAP machine at night. Id. at 4. March 30, 2015 and March 31, 2015 both came and went without the maintenance department installing an electrical outlet.[2] See Id. On March 31, 2015 or April 1, 2015, Plaintiff spoke with Brent Milsaps and Tass Jansen, supervisors at Plaintiff's prison-work job, about the lack of an electrical outlet in his cell. Id.; (Doc. 20-10 at 2). In response, Tass Jansen contacted the maintenance department about the issue and was informed that a work order had been placed and that the electrical outlet would be installed. (Doc. 20-9 at 2; Doc. 32-1 at 4). As of the night of April 1, 2015, Plaintiff remained without an electrical outlet in his cell. (Doc. 32-1 at 4). On April 2, 2015, Plaintiff spoke with Defendant Amy Jenkins, Plaintiff's case worker at ACI, about the electrical outlet. Id. at 4-5; (see also Doc. 20-6 at 3). Defendant Jenkins allegedly contacted Defendant Quinn regarding Plaintiff's need for an electrical outlet in his cell. (Doc. 32-1 at 5; Doc. 20-4 at 3; Doc. 20-6 at 3). Also on April 2, 2015, Plaintiff spoke with custody staff members about the electrical outlet; nonetheless, as of Monday, April 6, 2015, no electrical outlet had been installed in Plaintiff's cell. (Doc. 32-1 at 5-7).

         On April 6, 2015, Plaintiff spoke with several employees at ACI, one of whom advised Plaintiff to write a letter to Defendant Eric Dye, Assistant Superintendent of ACI. Id. at 7. Plaintiff followed this advice and Defendant Dye received Plaintiff's letter on April 7, 2015.[3] Id. at 7; (Doc. 20-11 at 3, 7). On April 7, 2015, Plaintiff was placed in a restricted housing unit cell that had an electrical outlet and he remained in the restricted housing unit cell until the maintenance department installed an electrical outlet in his Red Unit cell. (Doc. 20-11 at 3; Doc. 32-1 at 7-8). An outlet was installed in Plaintiff's Red Unit cell by April 9, 2015, and Plaintiff was returned to his Red Unit Cell that afternoon. (Doc. 32-1 at 8).

         On or about July 26, 2015, Plaintiff completed a Form DC-410 regarding the lack of access to an electrical outlet between March 30, 2015 and April 7, 2015, and addressed the Form DC-410 to the state offices of Defendant North Carolina Department of Public Safety (“NCDPS”) in Raleigh, North Carolina. (Doc. 20-2 at 4, 33-36). On his Form DC-410, Plaintiff, in a manner consistent with the aforementioned facts, discusses his interactions with Defendants Miller, Quinn, Hamilton, and Dye.[4] (Doc. 20-2 at 33-35). Plaintiff, through the Form DC-410, also alleged that he filed an earlier grievance, which he claims he handed to Defendant Farris but which he further claims was never processed by Defendant Susan White, an administrator at ACI. Id. at 35-36. Plaintiff's Form DC-410 was eventually received by Defendant White, who submitted the grievance for processing on August 20, 2015. Id. at 4, 31.

         Plaintiff initiated the instant three count action under 42 U.S.C. § 1983. (See Doc. 1). Count One of Plaintiff's action alleges that each of the Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment when, for nine nights, they denied him access to medical care by failing to provide him an electrical outlet to operate his CPAP machine. Id. at 10-13. Count Two of Plaintiff's action alleges that Defendants NCDPS, George T. Solomon (Director of Prisons and of NCDPS), Frank Perry (Secretary of NCDPS), Paula Smith, M.D. (Director of Medical Services), Dye, and White violated his Eighth Amendment rights by failing to train personnel at ACI regarding how to address the medical needs of prisoners. Id. at 13-16. Count Three of Plaintiff's action seeks punitive damages. Id. at 16.

         Defendants filed a Motion for Summary Judgment (Doc. 18). In the memorandum supporting their Motion for Summary Judgment, Defendants argue that (1) Plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), see 42 U.S.C. § 1997e; (2) Defendants Dye, Hamilton, Miller, Quinn, Farris, and Jenkins took appropriate action given their knowledge of Plaintiff's medical condition; (3) Plaintiff did not present evidence that he suffered any significant injury from being denied an electrical outlet such that he failed to satisfy the objective component of an Eighth Amendment claim; (4) imposition of supervisory liability on Defendants Solomon, Perry, Smith, and White is not appropriate; (5) the individual Defendants are entitled to qualified immunity; (5) Defendant NCDPS is not a “person” for purposes of § 1983 and is entitled to sovereign immunity; and (6) Plaintiff failed to present evidence of reckless or callous indifference to support his claim for punitive damages. (Doc. 19 at 15-25). In response, Plaintiff identifies several factual disputes he asserts are material and contends that NCDPS prevented him from using the grievance process by not processing a grievance he filed at the time of the events giving rise to this action. (Doc. 32 at 1-8). In support of his response, Plaintiff submitted his own affidavit (Doc. 32-1), as well as an affidavit from his counsel, Mary March Exum, and an unsworn, draft affidavit of Sergeant Wilson, a custody officer at ACI (Doc. 32-2). Ms. Exum represents that she drafted the unsworn affidavit based on conversations she had with Sergeant Wilson and that Sergeant Wilson was prepared to sign the unsworn, draft affidavit until he and two other ACI custody officers were retaliated against by NCDPS and NCDPS employees. Id. at 1-4.

         In addition to filing a reply on the Motion for Summary Judgment (Doc. 33), Defendants filed a Motion to Strike Doc. 32-2 (Doc. 34). In support of the Motion to Strike, Defendants argue that (1) the unsworn, draft affidavit does not comply with Fed.R.Civ.P. 56;[5] (2) the unsworn, draft affidavit conflicts with Sergeant Wilson's sworn affidavit attached to Defendant's Reply on the Motion for Summary Judgment as Document 33-3; (3) most of Ms. Exum's affidavit is inadmissible hearsay and conclusory opinions not based on personal knowledge;[6] and (4) Ms. Exum cannot serve as a witness and as counsel, such that her affidavit cannot be considered for purposes of summary judgment because her statements cannot be reduced to admissible testimony at trial. (Doc. 35 at 1-5; Doc. 38 at 1-7). In response to the Motion to Strike, Plaintiff argues that the statements in Ms. Exum's affidavit can be reduced to admissible evidence at trial and that “shenanigans created by the defendants” and misleading statements by attorneys representing NCDPS caused Sergeant Wilson to sign the affidavit attached as Document 33-3 rather than the affidavit drafted by Ms. Exum. (Doc. 36 at 2).

         II. DISCUSSION

         A. Motion to Strike

         In litigating a motion for summary judgment, “[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including . . . affidavits . . . .” Fed.R.Civ.P. 56(c)(1). “An affidavit or declaration used to support or oppose a motion 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). “‘It is well established that unsworn, unauthenticated documents cannot be considered on a motion for summary judgment.'” Hamilton v. Mayor & City Council of Baltimore, 807 F.Supp.2d 331, 352 (D. Md. 2011) (quoting Orsi v. Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993)). Furthermore, “[a] party's mere ‘belief' and/or speculation is not based on personal knowledge and is not competent summary judgment evidence.” Riley v. Univ. of Ala. Health Servs. Found., P.C., 990 F.Supp.2d 1177, 1187 (N.D. Ala. 2014). Instead, “[f]or a matter to be considered within a witness's personal knowledge, it must be ‘derived from the exercise of his own senses, not from the reports of others-in other words, it must be founded on personal observation.'” Id. (brackets omitted) (quoting United States v. Evans, 484 F.2d 1178, 1181 (2d Cir. 1973). Based on Fed.R.Civ.P. 56(c)(4)'s personal knowledge requirement, as well as the requirement that facts be admissible in evidence, “hearsay evidence, which is inadmissible at trial, cannot be considered on a motion for summary judgment.” Maryland Highways Contractors Ass'n, Inc. v. Maryland, 933 F.2d 1246, 1251-52 (4th Cir. 1991). Finally, “[s]tatements in affidavits made only on belief or on information and belief may not be considered in support of or in opposition to summary judgment.” United States v. Rocky Mountain Holdings, Inc., 782 F.Supp.2d 106, 114 (E.D. Pa. 2011) (internal quotation marks omitted).

         “‘An affidavit that does not measure up to the standards of Rule 56[(c)] is subject to a motion to strike.'” Lumoa v. Potter, 351 F.Supp.2d 426, 430 (M.D. N.C. 2004) (quoting Noblett v. Gen. Elec. Credit Corp., 400 F.2d 442, 445 (10th Cir. 1968)). When considering a motion to strike a document because the document does not comply with Fed.R.Civ.P. 56(c), a court must “use ‘a scalpel, not a butcher knife, ' to strike only those portions of an affidavit that do not satisfy the requirements of Rule 56(c).” Colfield v. Safeway Inc., 2016 WL 1242592, at *4 (D. Md. Mar. 30, 2016) (quoting Upshaw v. Ford Motor Co., 576 F.3d 576, 593 (6th Cir. 2009)). Additionally, “the papers of a party opposing summary judgment are usually held to a less exacting standard than those of the moving party and doubts regarding admissibility are resolved in favor of the party opposing summary judgment.” Id. (internal quotation marks and citation omitted).

         Applying the standards of Fed.R.Civ.P. 56(c) and the standards governing a motion to strike, it is abundantly clear that several portions of Document 32-2 must be stricken. The affidavit of Sergeant Wilson drafted by Ms. Exum (Doc. 32-2 at 5-7) does not comply with the requirement that an affidavit be sworn or authenticated because Sergeant Wilson did not sign the document. Furthermore, where portions of the draft affidavit are incomplete and in brackets, the draft affidavit is speculative rather than based on the personal knowledge of anyone, including Sergeant Wilson. Finally, although Plaintiff contends that the draft affidavit is submitted for the purpose of corroborating Ms. Exum's affidavit, the draft affidavit completely fails to provide any meaningful corroboration. First, as the unsworn affidavit was drafted by Ms. Exum, the representations in the document are only as credible as the attestations in Ms. Exum's own affidavit. Second, Sergeant Wilson has sworn to an affidavit disavowing the contents of the draft affidavit. (Doc. 33-2 at 2). Accordingly, Defendants' Motion to Strike (Doc. 34) is GRANTED with respect to the unsworn, draft affidavit of Sergeant Wilson and the Court STRIKES pages 5-7 of Document 32-2.

         Turning next to Ms. Exum's affidavit, the Court initially questions whether Ms. Exum is competent to testify to the matters in her affidavit. Under the North Carolina Rules of Professional conduct, A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:

(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.

          N.C. Revised Rule of Professional Conduct 3.7. Plaintiff has not expressed any intent to obtain new counsel or to proceed pro se to avoid application of Rule 3.7 relative to Ms. Exum's proposed testimonial statements. It is not apparent that any of the exceptions in Rule 3.7 apply.[7] Furthermore, and in line with Rule 3.7, the United States Court of Appeals for the Fourth Circuit has concluded that it is “improper” for a court to view an affidavit of counsel on a contested issue as “substantive evidence” because “[i]t is elementary that counsel ...


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