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Pronin v. Johnson

United States District Court, D. South Carolina, Orangeburg Division

June 23, 2017

DMITRY PRONIN, Plaintiff,
v.
LT. TROY JOHNSON, and JAKE BURKETT, Defendants.

          ORDER

          DAVID C. NORTON, UNITED STATES DISTRICT JUDGE

         This matter is before the court on defendants Lt. Troy Johnson (“Johnson”) and Jake Burkett's (“Burkett, ” together with Johnson, “defendants”) motion for summary judgment. For the reasons set forth below, the court denies defendants' motion for summary judgment.

         I. BACKGROUND

         Plaintiff Dmitry Pronin (“Pronin”) filed the instant action on December 3, 2012, alleging that he suffered numerous civil rights violations during his incarceration at the Federal Corrections Institution in Edgefield, South Carolina (“FCI Edgefield”). The most significant of these allegations is Pronin's claim that he was denied his right of access to the courts. Pronin contends that on November 5, 2012, while he was housed in the Special Housing Unit (“SHU”) of FCI Edgefield, he received a package from his former attorney, Galina Rakityanskaya (“Rakityanskaya”), which contained-among other things-certain medical documentation which he used to draft a habeas petition that was to be filed in the District of Delaware (the “Draft Delaware Petition”). Pronin contends that the Draft Delaware Petition and all related attachments were placed in an envelope by Saturday, November 10, 2012. However, on Sunday, November 11, 2012, before the envelope could be mailed, Pronin was involved in an incident with his then cellmate and removed from his cell. Crucially, Pronin contends that his legal papers-including the Draft Delaware Petition and its attachments-were left in the cell with his cellmate. Pronin further contends that Burkett, who was eventually tasked with retrieving these documents from the cell, intentionally left a portion of Pronin's documents in the cell, where they were destroyed, and that Johnson subsequently threw out another portion of Pronin's documents two days later. While Pronin was eventually able to file another habeas petition in the District of Delaware (the “Filed Delaware Petition”), he argues he was unable to recover certain of the medical documents he received from Rakityanskaya as a result of the defendants' actions. Specifically, Pronin claims to have lost medical certificates from Policlinic #3 of the City of Irkutsk, Russia, which contained evidence of his mental illness. Notably, Pronin's filing in the District of Delaware did contain medical certificates from Policlinic #2, which were also sent by Rakityanskaya in the same package that allegedly contained the Policlinic #3 documents.

         The court granted defendants' prior motion for summary judgment as to all of Pronin's claims on March 31, 2015. ECF No. 152. Pronin appealed the court's decision. The Court of Appeals affirmed the court's grant of summary judgment on most of Pronin's claims, but found that the court erred in its analysis of Pronin's access-to-courts claim by relying on defendants' declarations that they did not destroy Pronin's documents, and Burkett's declaration that he did not intend to destroy such documents, when those declarations were contested. ECF No. 162 at 6. The Court of Appeals went on to find that Pronin had raised a material question of fact as to whether he was injured by defendants' actions. The Court of Appeals recognized that Pronin's Filed Delaware Petition raised a claim for ineffective assistance of counsel based on his attorney's refusal to pursue a “neuropsychiatric” evaluation in connection with his sentencing, and found that “evidence of serious mental illness . . . would have supported Pronin's case at sentencing.” Id. at 7. Thus, the Court of Appeals concluded,

the [d]efendants' alleged destruction of [Pronin's] legal materials prevents him from providing the court with his medical history showing that these illnesses had been diagnosed prior to his criminal activity. This evidence could be helpful in showing that his attorney should have investigated his mental health. Without expressing an opinion as to Pronin's likelihood of success in his § 2255 proceeding, we find that Pronin has raised a material question of fact as to whether he can show a nonfrivolous and arguable question regarding whether such materials would result in a successful § 2255 motion.

Id. at 8.[1] Therefore, the Court of Appeals vacated the court's grant of summary judgment on Pronin's access to courts claim and remanded the case for further proceedings. Id. at 13.

         On November 11, 2016, defendants again moved for summary judgment, arguing that Pronin's sworn statements fail to raise a material question of fact because they are barred by the sham affidavit rule.[2] ECF No. 173. Pronin filed a response on February 15, 2017, ECF No. 192, and defendants filed a reply on March 3, 2017. ECF No. 199. Pronin then filed a sur-reply, ECF No. 201, along with a motion to stay all proceedings with respect to defendants' motion for summary judgment, ECF No. 202, and a motion for the issuance of a subpoena, ECF No. 203, on March 20, 2017. Defendants responded to the motion to stay on March 31, 2017, ECF No. 204, and the motion for issuance of a subpoena on April 3, 2017. ECF No. 205. The matters are now ripe for the court's review.

         II. STANDARD

         Summary judgment is proper “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). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine, ' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in his favor. Id. at 255.

         III. DISCUSSION

         Defendants argue that Pronin has failed to raise a genuine issue of fact as to whether they actually destroyed or intentionally failed to retrieve any of Pronin's legal documents. Pronin has provided sworn statements on this issue, but defendants contend that these statements are barred by the “sham affidavit rule.” It is well-established that “a party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party's earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity.” Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999); see also Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984) (“A genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of the plaintiff's testimony is correct.”). This principle is frequently referred to as the “sham affidavit rule.”[3] “For the sham affidavit rule to apply ‘there must be a bona fide inconsistency'” between the affiant's sworn averments or testimony. Kinser v. United Methodist Agency for the Retarded--W. N. Carolina, Inc., 613 F. App'x 209, 210 (4th Cir. 2015) (alterations omitted) (quoting Spriggs v. Diamond Auto Glass, 242 F.3d 179, 186 (4th Cir. 2001)). Courts are careful to limit “[a]pplication of the sham affidavit rule at the summary judgment stage . . . to situations involving flat contradictions of material fact.” Sky Angel U.S., LLC v. Discovery Commc'ns, LLC, 28 F.Supp.3d 465, 484 (D. Md. 2014) (quoting Elat v. Ngoubene, 993 F.Supp.2d 497, 528 (D. Md. Jan. 21, 2014)).

         Defendants have not listed out Pronin's supposed contradictions in any organized or precise manner. Nevertheless, defendants appear to argue that Pronin has contradicted himself in the following ways:

(1) By previously stating, in an affidavit attached to his December 27, 2012 habeas petition filed in the District of South Carolina (the “South Carolina Petition”), that when Burkett returned with a portion of the documents left in Pronin's cell “the § 2255 Motion was still there, ” Case No. 5:12-cv-3623-DCN, ECF No. ...

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