Dmitry Pronin v. Lieutenant Troy Johnson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6534
DMITRY PRONIN,
Plaintiff – Appellant,
v.
LIEUTENANT TROY JOHNSON; OFFICER FLOURNOY; OFFICER
MIDDLEBROOK; OFFICER WILSON; OFFICER CRAWFORD; KENNETH
ATKINSON; DANIEL FALLEN; REX BLOCKER; LOUISA
FUERTES-ROSARIO; SANDRA K. LATHROP; BRANDON BURKETT; JAKE
BURKETT; JOHN BRYANT; PATINA WALTON-GRIER; HENRI WALL;
EDWARD HAMPTON; WILLIAM JOHNSON; LIEUTENANT EDA
OLIVERA-NEGRON, Operations,
Defendants – Appellees,
and
SHU STAFF MEMBERS,
Defendant.
Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. David C. Norton, District Judge.
(5:12-cv-03416-DCN)
Submitted: August 20, 2015 Decided: October 7, 2015
Before MOTZ, FLOYD, and HARRIS, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.

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Dmitry Pronin, Appellant Pro Se. Barbara Murcier Bowens,
Assistant United States Attorney, Columbia, South Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Dmitry Pronin appeals from the district court’s order
granting summary judgment to Defendants in Pronin’s 42 U.S.C.
§ 1983 (2012) action. We have reviewed the record and Pronin’s
arguments on appeal, and we agree with the district court’s
disposition of the vast majority of Pronin’s claims. However,
for the reasons that follow, we vacate and remand Pronin’s claim
that he was denied access to courts for further proceedings.
I.
We review de novo a district court’s order granting summary
judgment, viewing the facts and drawing reasonable inferences
therefrom in the light most favorable to the nonmoving party.
Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011). Summary
judgment shall be granted when “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). A district court should
grant summary judgment unless a “reasonable jury could return a
verdict for the nonmoving party” on the evidence presented.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An
otherwise properly supported motion for summary judgment will
not be defeated by the existence of some factual dispute;
“[o]nly disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude the entry of
summary judgment.” Id. Mere conclusory allegations and bare

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denials are insufficient to support the nonmoving party’s case.
Erwin v. United States, 591 F.3d 313, 319-20 (4th Cir. 2010).
While a party cannot withstand summary judgment by relying
solely on his own self-serving allegations unsupported by any
corroborating evidence, Williams v. Giant Food Inc., 370 F.3d
423, 433 (4th Cir. 2004), summary judgment should not be made on
the basis of conflicting affidavits. See Gray v. Spillman, 925
F.2d 90, 95 (4th Cir. 1991) (not the province of trial court to
make credibility determinations in a summary judgment setting).
II.
Prisoners have a constitutional right to “adequate,
effective, and meaningful” access to the courts. Bounds v.
Smith, 430 U.S. 817, 822 (1977); see Lewis v. Casey, 518 U.S.
343, 351 (1996). To prevail on a claim that he was denied
access to the courts, a prisoner must demonstrate that he
suffered an actual injury, such as missing a court-imposed
deadline or being unable to file a complaint because of the
Defendants’ actions. Lewis, 518 U.S. at 351-52.
Pronin’s claim of denial of access to courts revolves
around the loss of his legal papers, which he alleges resulted
from Officer J. Burkett’s failure to secure his papers when
Pronin was removed from his cell and Officer Troy Johnson’s
disposal of a portion of the documents. The district court
ruled that it was undisputed that J. Burkett did not intend to

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damage Pronin’s documents and that Pronin had failed to show an
injury as he was able to file a 28 U.S.C. § 2255 (2012) motion
which was still pending.
On appeal, Pronin raises two claims of error regarding the
district court’s rejection of his claim. First, he asserts that
the district court erred in concluding that J. Burkett’s
affidavit was uncontested. Pronin claims that he provided
declarations showing that J. Burkett was retaliating for
Pronin’s complaints against his brother, Officer B. Burkett.
Second, Pronin claims that, while his § 2255 motion is still
pending, the loss of his medical records have so hampered his
ability to seek relief that he has satisfied his requirement to
show an actual injury.
In his objections to the magistrate judge’s report and
recommendation, Pronin asserted as follows: On September 25,
2012, J. Burkett told Pronin that Burkett was aware that he was
complaining about his brother. In October 2012, both brothers
filed incident reports against him that were dismissed. On
November 11, J. Burkett left Pronin’s legal documents with his
cellmate, and they were partially destroyed. On November 13,
Johnson threw out the remaining documents. These documents were
medical records from Russia allegedly showing that Pronin was a
vulnerable adult, that he suffered from bipolar disorder and

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borderline personality, and that he had been diagnosed with a
nervous neck tick and epilepsy.
In direct contradiction, Johnson’s declaration states that
he did not throw out any of Pronin’s paperwork, but that it was
instead returned to him. J. Burkett’s declaration similarly
avers that, when Pronin was moved, his property was secured and
given to him. We find that the affidavits are clearly in
conflict. Pronin has provided dates and details, and the
Defendants dispute the veracity of Pronin’s allegations.
Accordingly, it was error for the district court to conclude
that J. Burkett’s declaration was uncontested.
Turning to the injury requirement, the Defendants alleged
in their motion for summary judgment that Pronin was able to
file his § 2255 motion which is currently pending in the
District Court of Delaware. However, the right of access to the
courts includes “the opportunity to prepare, serve and file
whatever pleadings or other documents are necessary or
appropriate in order to commence or prosecute court proceedings
affecting one’s personal liberty, or to assert and sustain a
defense therein.” Silva v. Di Vittorio, 658 F.3d 1090, 1103
(9th Cir. 2011). Prisoners have a right under the First and
Fourteenth Amendments to litigate claims challenging their
sentences or the conditions of their confinement to conclusion
without active interference by prison officials. Id. To show

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injury, the plaintiff must show that he lost or will lose the
opportunity to pursue a “nonfrivolous” and “arguable” claim.
Christopher v. Harbury, 536 U.S. 403, 415 (2002).
We have reviewed the filings in Pronin’s pending § 2255
motion. In the relevant claims, Pronin avers that he received
ineffective assistance of counsel when he asked his attorney to
pursue a “neuropsychiatric” evaluation but his attorney refused.
He also seeks a downward departure based upon his mental
condition. In support, he submitted two neuropsychiatric
evaluation reports from 2015 that conclude that he suffers from
post traumatic stress disorder and bipolar disorder. (See
United States v. Pronin, No. 1:11-cr-00033-LPS-1 (D. Del.) at
Docket Nos. 27, 35).
In his sentencing memorandum, Pronin’s counsel argued for a
variance sentence based upon Pronin’s depression, without
providing any supporting documentation. The district court
rejected this request, and Pronin was sentenced near the high
end of his Guidelines range. The Government’s sentencing
memorandum painted Pronin as a particularly dangerous criminal.
In light of these circumstances, we find that evidence of
serious mental illness, including bipolar and borderline
disorders, would have supported Pronin’s case at sentencing.
Pronin need only show a “reasonable probability” that, absent
ineffective assistance, his sentence might have been different.

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See Gray v. Branker, 529 F.3d 220, 236-38 (4th Cir. 2008)
(finding that counsel’s failure to provide mental health
evidence at capital sentencing was ineffective where evidence
would have provided a “significant boost” to mitigation evidence
and would not have conflicted with mitigation strategy). While
Pronin is able to submit mental health evidence from 2015 in his
§ 2255 proceeding to show that he currently suffers from mental
illnesses, the Defendants’ alleged destruction of his 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.
The district court did not analyze these issues. The court
instead decided that (1) J. Burkett’s affidavit of intent was
uncontested and (2) Pronin’s allegations of injury were vague.
We find that both of these conclusions were error and that both
the intent and injury issues involved disputed issues of
material fact. Accordingly, we vacate the district court’s

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order and remand for further proceedings consistent with this
opinion.
III.
Pronin contends that the district court erred in rejecting
his claim that Doctor Rex Blocker’s delay of more than a year
before prescribing medication for Pronin’s epilepsy was
sufficient to show deliberate indifference. Pronin claimed that
the delay resulted in a seizure. The district court ruled that
delayed prescription of medication does not constitute a
constitutional deprivation.
To succeed on his claims of constitutionally inadequate
medical care, Pronin was required to show acts or omissions on
Blocker’s part harmful enough to constitute deliberate
indifference to his serious medical needs. Estelle v. Gamble,
429 U.S. 97, 106 (1976). Meeting this high standard requires a
showing that Blocker actually knew of and disregarded a
substantial risk of serious injury or that he actually knew of
and ignored a serious need for medical care. Young v. City of
Mt. Ranier, 238 F.3d 567, 575-76 (4th Cir. 2001). A prisoner’s
accusation that the care he is receiving is not adequate to
treat his medical needs may support a claim of deliberate
indifference. De’lonta v. Johnson, 708 F.3d 520, 526 (4th Cir.
2013) (“[While] a prisoner does not enjoy a constitutional right
to the treatment of his or her choice, the treatment a prison

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facility does provide must nevertheless be adequate to address
the prisoner’s serious medical need.”). Although such claims
may, on closer inspection, amount to nothing more than a
prisoner’s disagreement with his diagnosis or prescribed
treatment, prison doctors violate the Eighth Amendment if they
decline to provide the level of care they deem medically
necessary or fail to adequately address a prisoner’s complaints
that the care he is receiving is not effective. See Sosebee v.
Murphy, 797 F.2d 179, 182 (4th Cir. 1986) (failure to respond to
an inmate’s known medical needs raises an inference of
deliberate indifference to those needs).
We conclude summary judgment was properly granted to
Blocker. It is undisputed that, when Pronin arrived at the
institution, he was not on any seizure medication, and he gave
conflicting accounts as to his seizure history. Pronin
submitted no evidence to support his allegations that he
suffered and complained of seizure-like activity after his
arrival at the institution and prior to his alleged seizure in
February 2013, and he presents only conclusory statements and no
details regarding his alleged attempts to obtain medical
treatment for his seizure symptoms prior to this date.
Moreover, his grievances and medical records do not support his
allegations, and while he requested seizure medication, there is
no evidence that he complained of seizure-like activity prior to

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the actual seizure. Further, Pronin’s assertions that he
suffered grave injury from his seizure are not supported by the
record. Finally, Pronin does not dispute Blocker’s statements
that, for a substantial portion of the time Pronin contends he
was being deliberately indifferent, Blocker was actually either
on medical leave or not the first line of medical treatment for
Pronin. Based on the foregoing, we find that Pronin has failed
to raise a material issue of fact as to whether Blocker was
deliberately indifferent to a serious medical need.
IV.
Pronin next alleges that Officer Olivera-Negron violated
his equal protection rights when, after Pronin had an
altercation with his cellmate, Olivera-Negron removed Pronin,
who is Jewish, from his cell but allowed his cellmate, who is
Hispanic, to remain. Pronin contend that the district court
erred in crediting Olivera-Negron’s assertions that she was not
the one who moved Pronin from his cell in the face of Pronin’s
affidavit that she questioned his cellmate and not him and then
gave the order to move Pronin. Setting aside the issue of the
conflicting affidavits, we find that Pronin’s claim is
insufficient in any event to survive summary judgment.
“To succeed on an equal protection claim, a plaintiff must
first demonstrate that he has been treated differently from
others with whom he is similarly situated and that the unequal

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treatment was the result of intentional or purposeful
discrimination.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th
Cir. 2001). Though a valid claim for a violation of equal
protection need not allege discrimination as the defendant’s
sole motive, it must allege the requisite discriminatory intent
with more than mere conclusory assertions. Thus, to state valid
claims for violation of equal protection and thereby to survive
a motion for summary judgment, Pronin must put forward specific,
non-conclusory factual allegations that establish improper
motive. Williams v. Hansen, 326 F.3d 569, 584 (4th Cir. 2003).
In delving into the minds of prison officials, we may look
to circumstantial and direct evidence of intent. Invidious
discriminatory purpose may often be inferred from the totality
of the circumstances. Courts should look to the direct impact
of the challenged official action; the historical background of
the decision, which may take into account any history of
discrimination by the Defendant; the specific sequence of events
leading up to the particular decision being challenged,
including any significant departures from normal procedures; and
contemporary statements by the decisionmaker. Id. at 584-85.
We find that Pronin has failed to put forth any evidence of
discriminatory intent, aside from the bare fact that he is
Jewish and his cellmate and the officer are Hispanic. Pronin
cites no relevant statements or similar history on the part of

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Olivera-Negron. Finally, Pronin has provided no details from
which to determine whether he and his cellmate were similarly
situated. Accordingly, the district court correctly ruled that
Pronin’s claim could not survive summary judgment.
V.
We have reviewed the remainder of Pronin’s claims, and we
find no reversible error. Accordingly, we affirm the remainder
of the district court’s order for the reasons stated by the
district court. Pronin v. Johnson, No. 5:12-cv-03416-DCN
(D.S.C. Mar. 31, 2015). Based on the foregoing reasoning, we
vacate the district court’s grant of summary judgment on
Pronin’s denial of access to courts claim and remand for further
proceedings consistent with this opinion. The rest of the
district’s order is affirmed. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART

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