Manning v. United States Department of Justice , 104 F. App'x 907 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DWAYNE MANNING, 
Plaintiff-Appellant,
v.
UNITED STATES DEPARTMENT OF  No. 04-6161
JUSTICE; BUREAU OF PRISONS;
WARDEN SHEARIN,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-03-1799-AW)
Submitted: May 28, 2004
Decided: July 26, 2004
Before WILLIAMS, KING, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Dwayne Manning, Appellant Pro Se. Thomas Michael DiBiagio,
United States Attorney, Baltimore, Maryland; Matthew Wayne Mel-
lady, UNITED STATES DEPARTMENT OF JUSTICE, Annapolis
Junction, Maryland, for Appellees.
2 MANNING v. USDOJ
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Dwayne Manning, a federal prisoner, filed a complaint pursuant to
the Federal Tort Claims Act ("FTCA"), alleging that, during a search
of his prison housing unit, staff confiscated and failed to return a
photo album. He also contended that staff failed to secure his locker
following the search, resulting in the loss of clothing, electronics,
shoes, books, and detergent.
The district court granted Defendants’ motion for summary judg-
ment, reasoning that the uncontroverted affidavits submitted by the
Defendants showed that the Defendants secured the locker and that
the album was returned. On December 11, Manning filed a Fed. R.
Civ. P. 59(e) motion for reconsideration, contending that the court
improperly failed to consider his response to summary judgment
because it lacked a certificate of service. The district court denied
Manning’s motion for reconsideration. The court stated that nothing
in Manning’s response would compel a different result. Specifically,
the court reasoned that the photo album was returned and that Man-
ning failed to prove the value of the other items lost. Manning timely
appealed.1
The FTCA "permits the United States to be held liable in tort in the
same respect as a private person would be liable under the law of the
place where the act occurred." Medina v. United States, 259 F.3d 220,
223 (4th Cir. 2001). This court reviews de novo a district court’s
order granting summary judgment. Moore Bros. Co. v. Brown &
Root, Inc., 207 F.3d 717, 722 (4th Cir. 2000). Summary judgment is
1
The timely filing of a Fed. R. Civ. P. 59(e) motion tolls the time to
appeal. Fed. R. App. P. 4(a)(4)(A). Thus, Manning’s notice of appeal
filed within sixty days of the denial of his motion for reconsideration was
timely as to both the motion for reconsideration and the underlying order.
Id.MANNING v. USDOJ 3
only appropriate when there is no genuine issue of material fact that
could lead a trier of fact to find for the non-moving party. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "In determining
whether to grant summary judgment, all justifiable inferences must be
drawn in favor of the non-movant." Miltier v. Beorn, 896 F.2d 848,
852 (4th Cir. 1990). The non-movant is entitled "to have the credibil-
ity of his evidence as forecast assumed, his version of all that is in
dispute accepted, [and] all internal conflicts in it resolved favorably
to him." Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th
Cir. 1979). To raise a genuine issue of material fact, Manning may
not rest upon the mere allegations or denials of his pleadings. Fed. R.
Civ. P. 56(e). Rather, he must present evidence supporting his posi-
tion through "depositions, answers to interrogatories, and admissions
on file, together with . . . affidavits, if any." Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)).
Manning’s claims can be separated into two categories: (1) the
photo album and (2) all other personal property. The district court dis-
missed the photo album claim, finding that the album had been
returned to Manning. However, Manning made clear in his opposition
that he was making no claim regarding the photo album that was
returned to him. Instead, he was claiming that a second album was
taken (or lost) and never returned. This claim is supported by the dec-
laration of inmate Thomas Davis, who stated that Manning owned
two photo albums, both of which were missing following the incident.
In addition, Manning submitted a declaration under penalty of perjury
that two photo albums were missing and only one had been returned.
Moreover, the documents submitted by Defendants in their summary
judgment motion support Manning’s claim that he had two photo
albums. A personal property report shows that, on August 11, 2000,
Manning had one photo album, and that, on April 10, 2001, he pur-
chased another one. Thus, we find that the district court improperly
determined that there was no genuine issues of material fact regarding
the second photo album.
With regard to the remaining items, the district court found that
Manning had not shown that his property was taken and, even if he
had, he had failed to prove the value of those items. First, we find that
Manning has raised a genuine issue of material fact regarding whether
prison officials left his locker unlocked, thereby permitting other
inmates to take his belongings. While prison officials are not insurers
4 MANNING v. USDOJ
of an inmate’s property, they are required to "provide suitable quar-
ters and provide for the safekeeping, care, and subsistence of all per-
sons." 18 U.S.C. § 4042(a)(2).
Manning supports his claim that the Defendants breached this duty
with the declarations of inmates Jay Brooks and Kevin Jones, who
both asserted that, on the day in question, their lockers were left open
after a search, and, relevant here, "just about all of the lockers [were]
open and a lot of property was missing." In addition, Manning himself
submitted an affidavit, stating that his locker was left open after a
search by prison officials. Thus, Manning’s evidence is in direct con-
tradiction to the Defendants’ evidence that none of the lockers were
left open.2 At the summary judgment stage, we must accept Man-
ning’s view of the evidence. Thus, there is a genuine issue of material
fact as to whether Defendants were negligent.
Regarding damages, Defendants’ submissions included receipts for
specific purchases by Manning that directly correlate to the property
described in his complaint. Moreover, while the district court cor-
rectly stated that "[a]lthough plaintiff later complained that many
items of personal property were taken, his last property inventory
shows that he owned only one pair of tennis shoes, one set of head-
phones, one pair of sweat pants, one sweat shirt, and one paperback
book," many of the receipts submitted by Manning post-date the latest
inventory. Specifically, after the inventory, the evidence shows that
Manning purchased a photo album ($2.35), headphones ($33.80),
Tide ($4.60), Nikes ($62.50), a shirt ($8.15), and a sweat shirt
($13.65). Thus, Manning has made a sufficient showing to avoid sum-
mary judgment on his claims.
Accordingly, we vacate the district court’s order granting summary
judgment and remand for further proceedings. We dispense with oral
argument, because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
VACATED AND REMANDED
2
Defendants did not dispute that leaving inmates’ lockers unlocked
would violate their duty of reasonable care.