Kelly Clark, Jr. v. Glenn Payne

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USCA4 Appeal: 21-6634 Doc: 37 Filed: 08/01/2023 Pg: 1 of 4

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-6634

KELLY JAMES CLARK JR,

Plaintiff – Appellant,

OFFICER GLENN TOMMY PAYNE; CORRECTIONAL OFFICER KEVIN CARL; CORRECTIONAL OFFICER COLBY MILLER,

Defendant – Appellees,

and

TOMMY PAYNE, Louisa Sheriff Department; LOUISA COUNTY SHERIFF DEPARTMENT; CORRECTIONAL OFFICER CARL; MR. MILLER, Correctional Officer; CENTRAL VIRGINIA REGIONAL JAIL; ASHLAND D. FORTUNE, Sheriff of Louisa County, Virginia,

Defendants.

Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. Thomas T. Cullen, District Judge. (3:20-cv-00017-TTC-JCH)

Submitted: November 29, 2022 Decided: August 1, 2023

Before HARRIS, RUSHING, HEYTENS, Circuit Judges.

Affirmed in part and vacated in part by unpublished per curiam opinion. *2 USCA4 Appeal: 21-6634 Doc: 37 Filed: 08/01/2023 Pg: 2 of 4

ON BRIEF: Susan J. Clouthier, CLOUTHIER LAW, PLLC, The Woodlands, Texas, for Appellant. William W. Tunner, John P. O’Herron, Matthew T. Anderson, THOMPSONMCMULLAN, P.C., Richmond, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit. *3 USCA4 Appeal: 21-6634 Doc: 37 Filed: 08/01/2023 Pg: 3 of 4

PER CURIAM:

Kelly James Clark, Jr. appeals from the district court’s grant of summary judgment,

alleging the district court erred in finding for the defendants in a suit brought under

42 U.S.C. § 1983. We have reviewed the record and see no reversible error in the district

court’s grant of summary judgment for defendant Glenn Payne. Accordingly, we affirm

that portion of the district court’s judgment.

In contrast, we conclude the district court erred in granting summary judgment for

defendants Kevin Carl and Colby Miller. During his deposition, Clark testified that those

officers led him to a separate room in the hospital where he was being treated and that Carl

stepped on one of his tubes, dislodging the tube from his body and creating a need for

serious medical intervention. Although this testimony differed in substantial respects from

the allegations in Clark’s complaint, the district court did not refuse to consider it on that

ground. Instead, the district court’s sole justification for granting summary judgment for

Carl and Miller was that Clark “ha[d] not provided a single piece of other objective

evidence corroborating this story” and “other evidence in the record”—specifically,

Clark’s medical records—“demonstrate[ ] that this event never occurred.” JA 883.

That was error. True, the only evidence in the record supporting this account is

Clark’s testimony. But a party’s own deposition is sufficient to create a genuine issue of

material fact, and there is no requirement that plaintiffs provide “other objective evidence

corroborating” their own personal accounts. JA 883; see Gray v. Spillman, 925 F.2d 90, 95

(4th Cir. 1991) (concluding plaintiff ’s “own deposition testimony puts into issue whether

the police officers in fact beat him”). Nor is this a situation in which Clark’s account is so *4 USCA4 Appeal: 21-6634 Doc: 37 Filed: 08/01/2023 Pg: 4 of 4

“blatantly contradicted” and rendered a “visible fiction” by evidence of “undisputed

authenticity” like a videotape that “no reasonable jury could believe it.” Harris v. Pittman,

927 F.3d 266, 275–76 (4th Cir. 2019) (quotation marks omitted). Indeed, this Court has

emphasized that resort to such an approach “is the exception, not the rule” and that courts

must be careful not to “abrogate the proper summary judgment analysis, which in qualified

immunity cases usually means adopting . . . the plaintiff’s version of the facts.” Id. at 276

(quotation marks omitted). Because assessing the believability of Clark’s testimony

requires a credibility determination that may not be made as a matter of law, see Gray,

925 F.2d at 95, the district court erred in granting summary judgment to Carl and Miller

on that basis. *

We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

AFFIRMED IN PART & VACATED IN PART

* Concluding such an amendment would be futile, the district court also denied Clark’s motion to amend the complaint to conform to his deposition testimony. JA 883– 84. Because Clark did not appeal that ruling, it is not directly before us. Instead, our holding is confined to the reasons given by the district court for granting the motion for summary judgment.