DePriest v. Cane

CourtDistrict Court, E.D. Virginia
DecidedJune 7, 2023
Docket3:21-cv-00624
StatusUnknown

This text of DePriest v. Cane (DePriest v. Cane) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DePriest v. Cane, (E.D. Va. 2023).

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division SYLVESTER DEPRIEST, Plaintiff, v. Civil Action No. 3:21cv624 (DIN) DR. J. CANE, et al., Defendants. MEMORANDUM OPINION Sylvester DePriest, a former Virginia inmate proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983 action in which he alleges that Dr. James Cane and Nurse Practitioner Tarasova (“Defendants”) denied him adequate medical care in violation of the Eighth Amendment during his confinement in the Henrico Regional Jail East.! Specifically, DePriest raises the following claim: Claim One: Defendants denied DePriest adequate medical care for his knee injury by delaying his receipt of surgery. DePriest requests monetary damages. (ECF No. 3, at 7.) The matter comes before the Court on the Motion for Summary Judgment filed by the Defendants. (ECF No. 40.) Despite the provision of notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), DePriest has not filed a response. For the reasons set forth below, the Motion for Summary Judgment, (ECF No. 40), will be GRANTED.

The Court corrects the spelling of the Defendants’ names as reflected in their submissions. The Court employs the pagination assigned by the CM/ECF docketing system. The Court also corrects the spelling, capitalization, and punctuation in the quotations from the parties’ submissions.

I. STANDARD FOR SUMMARY JUDGMENT 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). The party seeking summary judgment bears the responsibility 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. 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.” Jd. 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.’” Jd. (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., 477 U.S, 242, 255 (1986)). However, a mere scintilla of evidence will not preclude summary judgment. Anderson, 477 U.S. at 251 (citing Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448 (1872)). “[T]here is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party . . . upon whom the onus of proof is imposed.” Jd. (quoting Munson, 81 U.S. at 448). 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.” Forsyth v. Barr, 19 F.3d 1527, 1537 (Sth

Cir. 1994) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n.7 (Sth Cir. 1992)); see Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials . . . .”). In support of their Motion for Summary Judgment, Defendants submit the declaration of Michael Smithers, (ECF No. 41-1), who attests that the hundreds of pages of medical records attached, (ECF No. 41-2), are true and correct; the declaration of Defendant Inna Tarasova N.P., (ECF No. 41-3); and, the declaration of Defendant James H. Cane, M.D., (ECF No. 41-4). At this stage, the Court must assess whether DePriest “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). 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. DePriest failed to respond to the Motion for Summary Judgment. DePriest also failed to swear to the contents of his Complaint under penalty of perjury.” DePriest’s failure to present any evidence to counter Defendants’ Motion for Summary Judgment permits the Court to rely solely on Defendants’ submissions in deciding the Motion. See Forsyth, 19 F.3d at 1537; Fed. R. Civ. P. 56(c)(3) (“The Court need only consider the cited materials... .”). In light of the foregoing submissions and principles, the following facts are established for the Motion for Summary Judgment. The Court draws all permissible inferences in favor of DePriest.

2 The Court notes that even though it is not evidence, DePriest’s recitation of the alleged facts underlying his claims is generally consistent with the medical record put forth by Defendants.

Il. UNDISPUTED FACTS DePriest was an inmate in the Henrico Regional Jail East from January 4, 2019, until he was transferred to a different facility in May of 2021, and ultimately was released in August 2022. (ECF No. 41-2, at 3; ECF No. 33, at 1.) Nurse Tarasova explains that if an inmate is not feeling well, he can submit an inmate request that is sent to a nurse for review. (ECF No. 41-3 43.) A nurse then determines whether the medical complaint requires further assessment by either the jail physician or nurse practitioner, such as Dr. Cane or herself. (/d.) Neither Dr. Cane nor Nurse Tarasova personally handles the intake of inmate sick requests. (/d. 4.) On October 3, 2019, DePriest injured his left knee while he was playing basketball. (ECF No. 41-4 93.) DePriest saw Dr. Cane that day for left knee pain. (/d.) Dr. Cane noted that DePriest had a slight limp. (/d.) When Dr. Cane informed DePriest that it was protocol to place him in the Restrictive Housing Unit because he could not be housed in general population with a limp, DePriest “began to jog in place and stated that he was ‘fine.’” (/d.) Dr. Cane placed DePriest on work restriction for one week, and he was not allowed recreation hour for one month. (/d.) Medical provided DePriest with ice for forty-eight hours and 400 mg of Ibuprofen for five days. (/d.) Dr. Cane noted that DePriest left his medical appointment with no limp. (id.) On October 6, 2019, DePriest submitted a sick request for his knee. (ECF No. 41-2, at 96.) The following day, DePriest signed the Informed Refusal of Medical/Mental Health Services and indicated on the form that he would “wait the 1 week to see if it [got] better.” (/d.

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Bluebook (online)
DePriest v. Cane, Counsel Stack Legal Research, https://law.counselstack.com/opinion/depriest-v-cane-vaed-2023.