Etterson v. Newcome et al

Filing 29

MEMORANDUM OPINION. See for complete details. Signed by District Judge John A. Gibney, Jr. on 12/01/2016. Clerk mailed copy to pro se Plaintiff. (nbrow)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
VICTOR M. ETTERSON,
Plaintiff,

v.

Civil Action No. 3:14CV650

JEFFERY NEWCOME, et al.,
Defendants.
MEMORANDUM OPINION
Victor Etterson, a former Virginia detainee proceeding pro se and in forma pauperis,
filed this 42 U .S.C. § 1983 action. 1 By Memorandum Opinion and Order entered on October 5,
2015, the Court dismissed all claims except the First Amendment claim against Defendants
Sergeant Moore and Jailer McCormick.

Etterson v. Newcome, No. 3:14CV650, 2015 WL

5818220, at *3 (E.D. Va. Oct. 5, 2015). By Memorandum Opinion and Order entered on July
19, 2016, the Court denied Defendants' Motion to Dismiss and directed that any party wishing to
file a dispositive motion do so within sixty days. Etterson v. Newcome, No. 3:14CV650, 2016
WL 3912034, at *5 (E.D. Va. July 19, 2016). The action proceeds on Etterson's claim that
Defendants Moore and McCormick2 violated his rights under the Free Exercise Clause of the

1

The statute provides, in pertinent part:

Every person who, under color of any statute ... of any State ... subjects,
or causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law ....
42 u.s.c. § 1983.
2

Moore is a Sergeant at Riverside Regional Jail ("RRJ"). McCormick is a Jailer at RRJ.

First Amendment3 by removing him from the list of inmates who were approved to receive
Ramadan meals after they observed him eating during the Ramadan fast.
The matter is before the Court on the Motion for Summary Judgment filed by Defendants
Moore and McCormick. (ECF No. 26.) Despite providing Etterson with appropriate Roseboro4
notice, Etterson has not responded. This matter is ripe for judgment. For the reasons stated
below, the Court will GRANT the Motion for Summary Judgment, and Etterson's claim against
Defendants Moore and McCormick will be DISMISSED because he failed to exhaust his
administrative remedies.
I.

ST AND ARD FOR SUMMARY JUDGMENT

Summary judgment must be rendered "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). It is the responsibility of the party seeking summary judgment to inform the
court of the basis for the motion, and to identify the parts of the record which demonstrate the
absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive
issue, a summary judgment motion may properly be made in reliance solely on the pleadings,
depositions, answers to interrogatories, and admissions on file." Id at 324 (internal quotation
marks omitted). When the motion is properly supported, the nonmoving party must go beyond
the pleadings and, by citing affidavits or '"depositions, answers to interrogatories, and
admissions on file,' designate 'specific facts showing that there is a genuine issue for trial."' Id.
(quoting former Fed. R. Civ. P. 56(c) and 56(e) (1986)).

3

"Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof .... " U.S. Const. amend. I.
4

Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).
2

Defendants Moore and McCormick ask the Court to dismiss Etterson' s First Amendment
claim, inter alia, because Etterson failed to exhaust his administrative remedies prior to filing
this action, as required by 42 U.S.C. § 1997e(a). Because the exhaustion of administrative
remedies is an affirmative defense, Defendants Moore and McCormick bear the burden of
pleading and proving lack of exhaustion. Jones v. Bock, 549 U.S. 199, 216 (2007). In support of
their Motion for Summary Judgment, Defendants Moore and McCormick have submitted, inter
alia: (1) a Declaration from Walter J. Minton, the Assistant Superintendent at RRJ (Mem. Supp.

Mot. Summ. J. Attach. 3 ("Minton Deel."), ECF No. 27-3); (2) the portion of the RRJ Inmate
Handbook that sets forth the grievance procedure (id. Ex. A, at 5-6); (3) copies of grievance
material submitted by Etterson (id. Exs. B-C, at 7-12); and, (4) Etterson's Inmate Release
Checklist (id. Ex. D, at 14).5
As Etterson failed to respond, Etterson fails to cite the Court to any evidence that he
wishes the Court to consider in opposition to the Motion for Summary Judgment. See Fed. R.
Civ. P. 56(c)(3) (emphasizing that "[t]he court need consider only the cited materials" in
deciding a motion for summary judgment). 6 Etterson 's complete failure to present any evidence
to counter the Motion for Summary Judgment permits the Court to rely solely on Defendants
Moore and McCormick's submissions in deciding the Motion for Summary Judgment. See
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) ("'Rule 56 does not impose upon the district

court a duty to sift through the record in search of evidence to support a party's opposition to

5

The Court utilizes the pagination assigned to all of the exhibits accompanying the
Memorandum in Support of the Motion for Summary Judgment by the CM/ECF docketing
system.
6

Etterson submitted an unswom Complaint. Because Etterson failed to swear to the
contents of his Complaint under penalty of perjury, his Complaint fails to constitute admissible
evidence. See United States v. White, 366 F.3d 291, 300 (4th Cir. 2004).
3

summary judgment"' (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 & n.7 (5th Cir.
1992))).
Accordingly, the following facts are established for the Motion for Summary Judgment.
All permissible inferences are drawn in favor of Etterson.

II.
A.

UNDISPUTED FACTS

RRJ's Grievance Procedure

At RRJ, "[t]he grievance procedure is a mechanism allowing inmates to express their
concerns with jail policy, procedure, and treatment." (Minton Deel. Ex. A, at 6.) Inmates may
file grievances "concerning personal health and welfare or the operations and services of [RRJ]."
(Id.) "Inmates are made aware of the grievance procedure when they come in to [RRJ], and it is
included in their inmate handbook." (Minton Deel. if 3.)
Prior to submitting a written grievance, an inmate at RRJ "must first make an effort to
verbally resolve the situation with [his or her] Pod Officer." (Minton Deel. Ex. A, at 6.) If the
situation is not resolved to the inmate's satisfaction, the inmate "may request an Inmate
Grievance Form." (Id.) The inmate "must submit the completed form to [his or her] housing
officer within twenty-four (24) hours of the incident that has caused the grievance." (Id) The
Inmate Grievance Form "must be addressed to the Officer, filled out completely and returned
within twelve (12) hours." (Id) Each Inmate Grievance Form may only address one issue; any
grievance that "address[es] more than one issue will not be accepted . . . ." (Id) A "staff
member or section has seven (7) days from date of receipt to reply to [the] grievance, excluding
holidays and weekends." (Id.)
An inmate who is dissatisfied with the response "may appeal the response within 24
hours." (Id.) An inmate wishing to appeal must obtain an Inmate Grievance Appeal Form from
the Pod Officer. (Id.) "The original Inmate Grievance Form must accompany an appeal." (Id)
4

RRJ has "only one level of appeal; the Division Chief for [the inmate's] assigned area will

respond to [the inmate's] appeal and return the appeal response within seven (7) days, excluding
holidays and weekends." (Id.) The Division Chiers response is final. (Id.) "An inmate has not
exhausted the grievance procedure at [RRJ] with respect to any particular grievance unless he
has appealed the response to that grievance." (Minton Deel.~ 4.)
An inmate who is released while a grievance is pending "will be asked if [he or she]
wish[ es] to continue the grievance." (Minton Deel. Ex. A, at 6.) If the inmate does wish to
pursue the grievance, "the response will be forwarded to [the inmate] through the mail." (Id.)

B.

Facts Pertaining to Etterson's Exhaustion of Administrative Remedies

On July 5, 2014, Etterson submitted a grievance "that contained several different issues,
including the time of day the cell lights were turned on and off, not having desks or chairs in the
cells, and eating or drinking during Ramadan."

(Minton Deel.

~

5.)

Because Etterson's

grievance contained more than one issue, it "was therefore not accepted and was returned to
him." (Id.) Etterson did not appeal this response. (Id.

~

6.)

On July 18, 2014, Etterson submitted a grievance regarding the lighting in his cell,
complaining that Officer McCormack had refused to leave the cell lights on during lockdown.

(Id. Ex. B, at 8.) Officer McCormick responded, telling Etterson that the lights would be on
when trays came to the housing unit. (Id. at 9.) On the response form, Etterson noted that he did
not wish to appeal the response. (Id.) On August 24, 2014, Etterson submitted a grievance,
asking about the leg lifts for his wheelchair. (Id. Ex. C, at 11.) An RRJ staff member responded,
informing Etterson that he could not have the leg lifts because they were broken. (Id. at 12.)
Etterson noted that he did not wish to appeal the response. (Id.)
Minton avers that "Etterson neither submitted any grievance regarding Ramadan meals
during his incarceration in 2014 that complied with the Riverside grievance procedure
5

requirements, nor any grievance response appeal, and did not exhaust the grievance procedure at
Riverside in that regard .... " (Minton Deel.

~

8.) Of note, when Etterson "was released on

October 22, 2014, he initialed his Inmate Release Checklist representing that he had no pending
grievances." (Id.

~

9; see also id. Ex. D, at 14.)

III.

EXHAUSTION ANALYSIS

The pertinent statute provides:

"No action shall be brought with respect to prison

conditions under [42 U.S.C. § 1983] or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are available are
exhausted." 42 U.S.C. § 1997e(a). This language "naturally requires a prisoner to exhaust the
grievance procedures offered, whether or not the possible responses cover the specific relief
the prisoner demands." Booth v. Churner, 532 U.S. 731, 738 (2001). Generally, in order to
satisfy the exhaustion requirement, an aggrieved party must file a grievance raising the claim and
pursue the grievance through all available levels of appeal, prior to bringing his or her action to
court. See Woodford v. Ngo, 548 U.S. 81, 90 (2006). The Supreme Court has instructed that
section 1997e(a) "requires proper exhaustion." Id. at 93. The Supreme Court explained that
"[p]roper exhaustion demands compliance with an agency's deadlines and other critical
procedural rules," id. at 90, '"so that the agency addresses the issues on the merits."' Id.
(quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). The applicable prison rules
"define the boundaries of proper exhaustion."

Jones v. Bock, 549 U.S. 199, 218 (2007).

Exhaustion is mandatory, and courts lack discretion to waive the exhaustion requirement. Porter
v. Nuss le, 534 U.S. 516, 524 (2002).

Here, Etterson clearly failed to exhaust his administrative remedies with regard to his
claim against Defendants Moore and McCormick. As noted above, Etterson filed a grievance on
July 5, 2014 that raised several different issues, including the issue of eating or drinking during
6

Ramadan. However, this grievance was not accepted and was returned to Etterson because it did
not comply with RRJ's grievance procedure. Etterson never appealed that response. Etterson
also never resubm itted a grievance concerning Ramadan meal s. Etterson also never pursued any
claim regarding Ramadan meals to an appeal to the Division Chief. Thus, he failed to comply
with 42 U.S.C. § l 997e(a).

See Woodford, 548 U.S. at 90. Etterson offers no argument to

excuse his failure to exhaust his ad ministrative remedies for his claim. According ly, Etterson's
claim

against

Defe ndants

Moore

and

McCormick

will

be

DISMISSED

WITHOUT

PREJUDICE. See Duncan v. Clarke, No. 3:12CV482, 20 15 WL 75256, at *9 (E.D. Va. Jan. 6,
2015) (explaining that "the normal remed y fo r a fa ilure to exhaust under§ I 997e(a) is dismissal
without prejudice" (citing Booth, 532 U.S. at 735)).

IV.

CONCLUSION

The Motion for Summary Judgment (ECF No. 26) w ill be GRANTED. Etterson's claim
against Defendants Moore and McCormick wi ll be DISMISSED WITHOUT PREJUDICE.
Etterson remains free to file a new complaint once he has properl y exhausted his admini strative
remedies with respect to his clai m. The acti on wi ll be D ISMISSED.
A n appropriate Order shall accompany this Memorandum Opinion.

Date:
Richmond, Virginia

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