                               UNPUBLISHED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Affirmed in part; vacated and remanded in part by unpublished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.
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Unpublished opinions are not binding precedent in this circuit.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

                                           3
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



                                             5
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



                                              8
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

                                            9
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

                                           11
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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