Sirleaf v. Wall
Filing
51
MEMORANDUM OPINION. Signed by District Judge M. Hannah Lauck on 11/15/2016. Copy mailed to Pro Se Plaintiff. (jsmi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
MOMOLU SIRLEAF,
Plaintiff,
V.
Civil Action No. 3:15CV338
CURTIS WALL,
Defendant.
MEMORANDUM OPINION
Momolu Sirleaf, a Virginia inmate proceedingpro se and informa pauperis, filed this
civil action under 42 U.S.C. § 1983.^ The action proceeds on his Particularized Complaint (ECF
No. 36). In the Particularized Complaint, Sirleafargues that, during his incarceration at the
Greensville Correctional Center ("GCC"), Defendant Curtis Wall, the Chaplain at GCC, has
violated his rightto practice his religion as a "member[] of the Common Wealth of Israel."
(Part. Compl. 2.)^ The Court construes Sirleafto raise the following claims for relief:^
' Thatstatute 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.
While theParticularized Complaint names "Plaintiffs" and has attached signatures from
a number ofinmates, as previously explained to Sirleaf, "only Plaintiff [Su-leaf] [i]s permitted to
proceed as a plaintiffinthe action." (Mem. Order 2 n.2, ECF No. 25.) The Court again
reminded Sirleaf in its May 27,2016 Memorandum Order that "he is the sole Plaintiff in the
instant action and ... he is notproceeding as the representative of a class as his Particularized
Complaint suggests." (Mem. Order 1, ECF No. 37.)
Claim One:
Defendant Wall placed a substantial burden on Sirleaf s exercise of his
religion in violation of the Religious Land Use and Institutionalized
Persons Act ("RLUIPA")"^ inAugust 2014, by denying Sirleafs request
for "(i) Ecumenical Pilgrim Feast/Festivals, (ii) Communal - - worship
items, i.e. musical instruments, prayer rugs/blankets, etc., (iii) their right to
celebrate the birthday and coronations of Emperor Haile Selaisse on July
23 and November 2, of every year." {Id. at 7.)
Claim Two:
Defendant Wall violated Sirleafs First Amendment^ right to free exercise
of his religion by "plac[ing] unlawful restrictions, as aforementioned."
{Id. at 8.)
Claim Three: Defendant Wall violated Sirleafs Fourteenth Amendment^ right to equal
protection of the law by "limiting ecumenical feast/services to the
similarly situated inmates of the European and Arabic race and religious
sects." {Id. at 8.)
The matter is now before the Court on Defendant Wall's Motion for Summary Judgment. (ECF
No. 42.) Despite providing Sirleafwith appropriate Roseboro^ notice, Sirleafhas not responded.
This matter is ripe for judgment. For the reasons stated below. Defendant Wall's Motion for
Summary Judgment will be GRANTED, and Sirleafs claims will be DISMISSED because he
failed to exhaust his administrative remedies.
1. Summary Judgment
Summary judgmentmust be rendered "ifthe movant shows that there is no genuine
dispute as to any material fact andthe movant is entitled to judgment as a matter of law." Fed.
^The Court corrects the spacing and punctuation in the quotations from Sirleafs
Particularized Complaint.
"42^8.0. §2000cc-l(a).
^"Congress shall make no law respecting an establishment ofreligion, or prohibiting the
free exercise thereof
" U.S. Const, amend. I.
^ "No State shall... deny to any person within its jurisdiction the equal protection ofthe
laws." U.S. Const, amend. XIV, § 1.
^Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).
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 ofthe record which demonstrate the
absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, All U.S. 317, 323
(1986). "[WJherethe nonmovingparty will bear the burden of proof at trial on a dispositive
issue, a summary judgment motion may properlybe made in reliancesolely on the pleadings,
depositions, answers to interrogatories, and admissions on file." Id. at 324 (internal quotation
marksomitted). 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.
(quotingformer Fed. R. Civ. P. 56(c) and 56(e) (1986)).
Defendant Wall asks the Court to dismiss Sirleafs claims because Sirleaf failed to
exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a). Because the
exhaustion of administrative remedies is an affirmative defense. Defendant Wall bears the
burden of pleading andproving lackof exhaustion. Jones v. Bock, 549U.S. 199, 216(2007). In
support of his Motion for Summary Judgment, Defendant Wall submits: (1)the affidavit of
Shirley Tapp, the Grievance Coordinator at GCC (Mem. Supp. Mot. Summ. J. Ex. 1 ("Tapp
Aff"), ECF No. 43-1); (2)a copy of Virginia Department of Corrections ("VDOC") Operating
Procedure §866.1 {id. End. A("Operating Procedure §866.1"));^ and, (3) copies ofgrievances
material submitted by Sirleaf {id. End. B).
Sirleafdidnot respond to the Motion for Summary Judgment, thereby failing to citeto
any evidence thathe wishes the Court to consider in opposition. See Fed. R. Civ. P. 56(c)(3)
(emphasizing that "[t]he court need consider only thecited materials" in deciding a motion for
8 TM
The Courthas omittedthe emphasis in the quotations from this document.
summaryjudgment). Sirleafs ParticularizedComplaintwas sworn to under penalty of peijury;
however, it fails to address his attempts at exhaustion exceptfor the conclusory statement
"plaintiff[] exhausted [his] remedies." (Part. Compl. 10.) Sirleafs "[a]irygeneralities [and]
conclusory assertions" that he exhausted his administrative remedies "[do] not suffice to stave
off summary judgment" McManus v. Wilson, No. 3:13CV460,2015 WL 3444864, at *6 (E.D.
Va. May 28, 2015) (alterations in original) (quoting UnitedStates v. Roane, 378 F.3d 382,400-
01 (4th Cir. 2004)). Sirleaf s complete failure to present any evidence to counter Defendant
Wall's Motion for Summary Judgment permits the Court to relysolely on Defendant Wall's
submissions in deciding the Motion for Summary Judgment. See Forsyth v. Barr, 19F.3d 1527,
1537 (5th Cir. 1994) ("'Rule 56 does notimpose upon the district court a duty to siftthrough the
record in search of evidence to support a party's opposition to summary judgment.'" (quoting
Skotakv. Tenneco Resins, Inc., 953 F.2d 909, 915 & n.7 (5th Cir. 1992))); seeFed. R. Civ. P.
56(c)(3) ("The Court needonlyconsider the cited materials
").
Accordingly, the following facts are established for the Motion for Summary Judgment.
The Court draws all permissible inferences in favor of Sirleaf.
II. Undisputed Facts
A. VDOC*s Grievance Procedure
OperatingProcedure § 866.1, Offender GrievanceProcedure, is the mechanismused to
resolve inmate complaints in the VDOC. (Tapp Aff. K4.) Offenders are oriented to the offender
grievance procedure when they are initially received into the VDOC. (Id 19.) Operating
Procedure § 866.1 requires that, before submitting a formal grievance, the inmate must
demonstrate that he orshe has made a good faith effort toresolve the grievance informally
through the procedures available at the institution to secure institutional services or resolve
complaints. (Operating Procedure § 866.1.V.B.) Generally, a good faith effort requires the
inmate to submit an informal complaint form. (M § 866.1.V.B.I.) If the informal resolution
effort fails, the inmate must initiate a regular grievance by filling out the standard "Regular
Grievance" form. {Id. § 866.1.VI,A.2.)
"The original Regular Grievance (no photocopies or carbon copies) should be submitted
by the offender through the facility mail system to the Facility Unit Head's Office for processing
by the Institutional Ombudsman/Grievance Coordinator." {Id. § 866.1.VI.A.2.b.) The offender
must attach to the regular grievance a copy of the informal complaint. {Id. § 866.1.VI.A.2.a.)
Additionally, "[i]f 15 calendardays have expiredfrom the date the Informal Complaint was
logged without the offender receiving a response, the offender may submit a Grievance on the
issue and attachthe Informal Complaint receiptas documentation of the attempt to resolve the
issue informally." {Id. § 866.1 .V.B.2.) A formal grievance must be filed withinthirty days from
the date of the incident or occurrence, or the discovery of the incident or occurrence, exceptin
instances beyond the offender's control. {Id. § 866.1.VI.A. 1.)
1. Grievance Intake Procedure
Prior to review of the substance of a grievance, prison officials conduct an "intake"
review of the grievance to assure that it meets the published criteriafor acceptance. {Id.
§ 866.1 .VLB.) A grievance meeting the criteriafor acceptance is logged in on the day it is
received, and a "Grievance Receipt" is issuedto the inmatewithintwo days. {Id.
§ 866.1 .VLB.3.) If the grievance does notmeetthe criteria for acceptance, prison officials
complete the "Intake" section of the grievance and return the grievanceto the inmate within two
working days. {Id. § 866.1 .VLB.4.) If the inmate desires a review of the intake decision, he or
she must send the grievance form to the Regional Ombudsman within five calendar days of
receipt. {Id. § 866.1.VI.B.5.)
2. Grievance Appeals
Up to three levels of review exist for a regular grievance. {Id. § 866.1.VI.C.) The
Facility Unit Head of the facility in whichthe offender is confined is responsible for Level I
review. {Id. § 866.1 .VI.C.1.) If the offender is dissatisfiedwith the determination at Level I, he
or shemay appeal the decision to Level II, a review of which is conducted by the Regional
Administrator, the Health Services Director, the Superintendent for Education, or the Chiefof
Operations for Offender Management Services. {Id. § 866.1.VI.C.2.) TheLevel II response
informs the offender whether he or she"qualifies for" an appeal to Level III. {Id.
§ 866.1.VLC.2.g.)
3. Emergency Grievances Fail to Satisfy the Exhaustion Requirement
An offendermay file an emergency grievance if he or she believesthat there is a situation
or condition which maysubject him or herto immediate risk of serious personal injury or
irreparable harm. {Id. § 866.1 VILA.) The filing of anemergency grievance does not satisfy the
exhaustion requirement. (Tapp Aff. 18.) Aspreviously outlined, to satisfy the exhaustion
requirement the offender must submit his or hercomplaint "by filing a Regular Grievance with
the appropriate Informal Complaint, and appealing it through all available appeal levels." {Id.)
B. Facts Pertaining to Sirlears Exhaustion of Administrative Remedies
Sirleafhasutilized the grievance procedure numerous times during his incarceration.
(Tapp Aff. 19.) On September 27,2014, Sirleaf submitted aninformal complaint (#GCC-14INF-07121) wherein he complained that Chaplain Wall "refus[ed] to honor my religious beliefs
[which] violate[d] my right under the 1st and 14th amendment and RLUIPA." {Id End. B, ECF
No. 43-1, at24.)^ GCC staff responded that the "Religious Calendar [is] set by Doc
Headquarters" and that the Chaplain "[w]ill follow [p]olicy set by Headquarters."
On October 31,2014, Sirleaf submitted an informal complaint (#GCC-14-INF-08177)
wherein he stated his "request for communal workshop item for my faith the House of Yahueh
forwarded by me then reforwarded by a[n] email from Chaplin [sic] Wall." (ECF No. 43-1, at
23.) GCC staff responded that Sirleaf could either submit a request to the Faith Review
Committee or secure a volunteer who could mentor Sirleafs religious program. {Id.)
On December 2,2014, Sirleaf submitted an informal complaint (#GCC-14-INF-09074)
wherein he vaguely stated that he "set forth this 866.1 as 'AFFIDAVIT OF TRUTH' that
Chaplain Wall states that his official decision on behalf of the government is that my sincerely
held religious beliefs in Establishment of my religious group[']s faith and creed." (ECF No. 431, at 22.) To the extent that this stated a cognizable complaint, a staff member responded to
Sirleafthat he "must write Headquarters on these issues." {Id.)
On September 13, 2015, Sirleaf submitted an emergency grievance wherein he
complained that the master religious calendar failed to provide dietary considerations for his
religious feasts. (ECF No. 43-1, at 21.) GCC staff respondedthat his grievance failed to meet
the definition of an emergency, however, "an email has been sent to Chaplain Wall so he can
look into this matter." {Id.)
^Enclosure Blacks any pagination. Accordingly, the Court hereinafter refers to this
submission by its docket number and the pagination assigned by the CM/ECF docketing system.
Attached to Sirleafs Particularized Complaint is an Offender Request form submitted
to the Faith Review Committeeon September 17, 2014, prior to the submissionof his informal
complaints listed above, wherein he requests that "the committee afford The Recognized
Religious Group Yahwists/House of Yaweh [certain] religious activity accommodations." (ECF
No. 36-1, at 1.) The only apparent accommodation related to his claims in the instant action is
his request that "the Yahwists/House of Yaweh ... also observe [and] celebrate the birthday and
coronationday of Emperor Haile Selassie (as the Rastafarians do)." {Id.)
Sirleafdid not file Regular Grievances pertaining to the Emergency Grievance or three
Informal Complaintshe submitted. (Tapp Aff H1!•)
Tapp avers that based on the grievance records, Sirleaf failed to exhaust his
administrative remedies for his claims. (Jd.)
III. Exhaustion Analysis
The pertinent statute provides: 'TSTo action shall be brought withrespect to prison
conditions under [42 U.S.C. § 1983] or any other Federal law, bya prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are available are
exhausted." 42U.S.C. § 1997e(a). This language "naturally requires a prisoner to exhaust the
grievance procedures offered, whether ornotthe 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, anaggrieved party must file a grievance raising the claim and
pursue the grievance through all available levels of appeal, prior to bringing his or heraction to
court. See Woodford v. Ngo^ 548U.S. 81, 90 (2006). The Supreme Courthas 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.
(quotmg Pozo v. McCaughtry, 286 F.3d 1022,1024 (7th Cir. 2002)). The applicable prison rules
"define the boundaries ofproper exhaustion." Jones v. Bock, 549 U.S. 199,218 (2007).
Exhaustion ismandatory, and courts lack discretion to waive the exhaustion requirement. Porter
V. Nussle, 534 U.S. 516, 524 (2002)
Here, Sirleaf clearly failed to exhaust his administrative remedies with regard to his
claims. Although Sirleaf filed several Informal Complaints, and anEmergency Grievance, he
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never pursued any regular grievances. Sirleafalso never pursued any ofhis claims on appeal,
much less to a Level IIappeal. Thus, he failed to comply with 42 U.S.C. § 1997e(a). See
Woodford^ 548 U.S. at 90. Sirleafoffers no argument to excuse his failure to exhaust his
administrative remedies for these claims. Accordingly, Sirleafs claims will beDISMISSED
WITHOUT PREJUDICE, See Duncan v. Clarke, No. 3:12CV482,2015 WL 75256, at *9 (E.D.
Va. Jan. 6,2015) (explaining that "the normal remedy for afailure to exhaust under §1997e(a) is
dismissal without prejudice" (citing Booth, 532 U.S. at735)).
rV. Outstanding Objections
Sirleaf "appeal[s] de novo tothe United States District Court Judges ... the
Memorandum Order of[the] Magistrate Judge ... denying 'without prejudice plaintiffs motion
for the requesting ofthe appointment ofcounsel'
the denying ofplaintiffl's] motion for
temporary restraining order... and motion for preliminary injunction... 'without prejudice'."
(ECFNo. 30,atl.)
Pursuant to Federal Rule ofCivil Procedure 72(a), a party may seek review of
nondispositive pretrial matters by a district court judge. The Rule provides:
When a pretrial matter not dispositive of a party's claim or defense is
referred to a magistrate judge to hear and decide, the magistrate judge must
promptly conduct the required proceedings and, when appropriate, issue a written
order stating the decision. A party may serve and file objections to the order
within 14 days after being served with a copy. Aparty may not assign as error a
defect in the order not timely objected to. The district judge in the case must
consider timely objections and modify or set aside any part of the order that is
clearly erroneous or is contrary to law.
Fed. R. Civ. P. 72(a). The Court construes Sirleafs"Appeal" as objections permitted under Rule
72(a) ("Objections"),
First, tothe extent that Sirleafobjects tothe purported denial ofhis motion for a
temporary restraining order or motion for preliminary injunction, Sirleaffiled no motion for a
temporary restraining order or motion for preliminary injunction in the instant action. Thus, no
order exists for Sirleaf to object to.
Second, the Court construes Sirleaf to object to the Magistrate Judge's December 9,2015
Memorandum Order denying without prejudice his Motion for Appointment of Counsel. (See
Mem. Order 1, ECF No. 15.) Sirleaf filed his "Appeal" on April 4, 2016, well beyond the
fourteen days permitted for objections. Thus, his objection to the December 9,2015
Memorandum Order is untimely. Additionally, Sirleaf provides no argument in support of his
protest of the Magistrate Judge's denial of his Motion for Appointmentof Counsel. The
Magistrate Judge determined that counselneed not be appointed for Sirleafbecause "[t]his action
presents no complex issues or exceptionalcircumstances" and that Sirleafs "pleadings
demonstrate that he is competent to represent himselfin the action." (Mem. Order 1, ECF No.
15.) The Court discerns no error in the Magistrate Judge's conclusion. Sirleafs Objections
(ECF No. 30) will be OVERRULED.
V. Conclusion
Accordingly, the Motion for Summary Judgment (ECFNo. 42) will be GRANTED.
Sirleafs claims will be DISMISSED WITHOUT PREJUDICE. Sirleaf remains free to file a
newcomplaint once he has properly exhausted his administrative remedies withrespect to his
claims. Sirleafs Objections (ECFNo. 30) will be OVERRULED. The action will be
DISMISSED.
An appropriate Orderwill accompany this Memorandum Opinion.
M. Hannah Lamcl
United States District Judge
DateJOV 1 5 2016
Richmond, Virginia
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