Sirleaf v. Robinson et al

Filing 38

MEMORANDUM OPINION. See for complete details. Signed by District Judge M. Hannah Lauck on 12/21/2016. Clerk mailed copy to pro se Plaintiff. (nbrow)

IN THE UNITED STATES DISTRICT COU T
FOR THE EASTERN DISTRICT OF VIRGI IA
Richmond Division
MOMOLU V.S. SIRLEAF, JR.,

DEC 2 I 20l6
CLERK, U.S. DISTRICT COURT
RICHMOND. VA

Plaintiff,

v.

Ci 1 Action No. 3:15CV340

DAVID ROBINSON, et al,
Defendants.
MEMORANDUM OPINION
Momolu V.S. Sirleaf, Jr., a Virginia inmate proceeding prose a.II! informa pauperis,
filed this civil action under 42 U.S.C. § 1983. 1 The action proceeds on ·s Particularized
Complaint (ECF No. 29). In the Particularized Complaint, Sirleaf argue that, during his
incarceration at the Greensville Correctional Center ("GCC"), Defendan s2 have violated his
right to practice his religion as a "member[] of the Common Wealth ofl rael." (Part. Compl.
2. )3 The Court construes Sirleaf to raise the following chums for relief:
1 That

statute provides, in pertinent part:

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

The named Defendants are: David Robinson, the Chief of Ope ations for the Virginia
Department of Corrections ("VDOC"); Curtis Wall, the Chaplain at GC ; and, Harold Clarke,
the Director of the VDOC.
3

While the Particularized Complaint names "Plaintiffs" and has ttached signatures from
a number of inmates, as previously explained to Sirleaf, "[t]he action wi 1 proceed with Momolu
Sirleaf as the sole plaintiff. To the extent any other inmate wishes to p sue an action under 42
U.S.C. § 1983, he must submit his own new civil action." (Mem. Order 1, ECF No. 2.) The

Claim One:

Defendants placed a substantial burden on Sirleai]~ exercise of his religion
in violation of the Religious Land Use and Institu.fonalized Persons Act
("RLUIPA")5 by denying Sirleaf's request for reli ious feasts for "(l) the
Feast of Weeks; (2) the Feast of Trumpets; [and] ) the Feast of
Tabernacles." (Id at 9-10.)

Claim Two:

Defendants violated Sirleafs First Amendment6 right to free exercise of
his religion by "depriv[ing] religious feasts calori s during the Plaintiff[' s]
... religious feast exercises." (Id at 11.)

l

Claim Three: Defendants Robinson and Clarke violated Sirleaf Fourteenth
Amendment7 right to equal protection of the law ~y "providing additional
religious feast calories for the similarly situated inftiates of the European
and Arabic religions, but deprivation of religiouJeast calories for the
Plaintiff[]." (Id at 12.)
The matter is now before the Court on Defendants' Motion for Summ
No. 33.) Despite providing Sirleafwith appropriate Roseboro 8 notice,
This matter is ripe for judgment. For the reasons stated below, Defen

Judgment. (ECF

s· leaf has not responded.
ts' Motion for

Summary Judgment will be GRANTED, and Sirleafs claims will be DI MISSED because he
failed to exhaust his administrative remedies.

Court again reminded Sirleaf in its May 27, 2016 Memorandum Order th t "he is the sole
Plaintiff in the instant action and ... he is not proceeding as the represen tive of a class as his
Particularized Complaint suggests." (Mem. Order 1, ECF No. 30.)
4

The Court corrects the spelling, capitalization, and punctuation · the quotations from
Sirleaf s Particularized Complaint.
5

42 U.S.C. § 2000cc-l(a).

6

"Congress shall make no law respecting an establishment of re ·gion, or prohibiting the
free exercise thereof .... " U.S. Const. amend. I.
7

"No State shall ... deny to any person within its jurisdiction th equal protection of the
laws." U.S. Const. amend. XIV,§ 1.
8 Roseboro

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

I. Summary Judgment Standard
Summary judgment must be rendered "if the movant shows that

ere is no genuine

r.

dispute as to any material fact and the movant is entitled to judgment as matter oflaw." Fed.
R. Civ. P. 56(a). It is the responsibility of the party seeking summary ju gment to inform the
court of the basis for the motion, and to identify the parts of the record

hi ch 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 Tal 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 3!4 (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 intem!>gatories, and
admissions on file,' designate 'specific facts showing that there is a genlne issue for trial."' Id
(quoting former Fed. R. Civ. P. 56(c) and 56(e) (1986)).
Defendants ask the Court to dismiss Sirleaf s claims because Sirl af failed to exhaust his
administrative remedies as required by 42 U.S.C. § 1997e(a). Because t e exhaustion of
administrative remedies is an affirmative defense, Defendants bear the biden 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 submit: (1) the affidavit of Shirley Tapp, the Grievance
.

I

Coordinator at GCC (Mem. Supp. Mot. Summ. J. Ex. 1 ("Tapp Aff."), EIF No. 34-1); (2) a copy
of Virginia Deparlment of Corrections ("VDOC") Operating Procedure

i

866.1 (id Encl. A

("Operating Procedure§ 866.1")); 9 and, (3) copies of grievances and informal complaints
submitted by Sirleaf (id. Encls. B-C).

9

The Court has omitted the emphasis in the quotations from this ocument.
3

Sirleaf did not respond to the Motion for Summary Judgment, th reby failing to cite to
any evidence that he wishes the Court to consider in opposition. See Fe . R. Civ. P. 56(c)(3)
(emphasizing that "[t]he court need consider only the cited materials" in deciding a motion for
summary judgment). Sirleafs Particularized Complaint was sworn to

der penalty of perjury;

however, it fails to address his attempts at exhaustion except for the foll wing conclusory
statements that "plaintiff exhausted [his] remedies pursuant to O.P. #866 1 Offender Grievance
Procedure. However, [his] complaints were refused process on the meri s at the intake process.
Nonetheless, plaintiff[] appealed the intake decision to exhaustion, inclu

1 •

g defendant Clarke's

office." (Part. Compl. 13.) Sirleafs "[a]iry generalities [and] concluso
exhausted his administrative remedies "[do] not suffice to stave offs

McManus v. Wilson, No. 3:13CV460, 2015 WL 3444864, at *6 (E.D. V . May 28, 2015)
(alterations in original) (quoting United States v. Roane, 378 F.3d 382, 4 0-01 (4th Cir. 2004)).
Sirleafs complete failure to present any evidence to counter Defendants' Motion for Summary
Judgment permits the Court to rely solely on Defendants' 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 sear h of evidence to
support a party's opposition to summary judgment.'" (quoting Skotak v. enneco Resins, Inc.,
953 F.2d 909, 915 & n.7 (5th Cir. 1992))); see Fed. R. Civ. P. 56(c)(3) ("

e Court need only

consider the cited materials ....").
Accordingly, the following facts are established for the Motion or Summary Judgment.
The Court draws all permissible inferences in favor of Sirleaf.

4

II. Undisputed Facts
A. VDOC's Grievance Procedure

I

1

Operating Procedure§ 866.1, Offender Grievance Procedure, is 1Jhe mechanism used to
resolve inmate complaints in the VDOC. (Tapp Aff.

~ 4.) Offenders

oriented to the offender

grievance procedure when they are initially received into the VDOC. (~i' ~ 9.) Operating
Procedure § 866.1 requires that, before submitting a formal grievance, ,e inmate must
demonstrate that he or she has made a good faith effort to resolve the grievance informally
through the procedures available at the institution to secure institutionalJI ervices or resolve
complaints. (Operating Procedure§ 866.l.V.B.) Generally, a good fait effort requires the
inmate to submit an informal complaint form. (Id. § 866.l.V.B.l.) lfth I informal resolution
effort fails, the inmate must initiate a regular grievance by filling out the standard "Regular
Grievance" form. (Id. § 866.1.Vl.A.2.)
"The original Regular Grievance (no photocopies or carbon copir) should be submitted
by the offender through the facility mail system to the Facility Unit Heat's Office for processing
by the Institutional Ombudsman/Grievance Coordinator." (Id § 866.1.V[.A.2.b.) The offender
must attach to the regular grievance a copy of the infonnal complaint. (If § 866.1.VI.A.2.a)
Additionally, "[i]f 15 calendar days have expired from the date the Info1al Complaint was
logged without the offender receiving a response, the offender may sublt a Grievance on the
issue and attach the Informal Complaint receipt as documentation of the attempt to resolve the

issue infonnally." (Id § 866.1.V .B.2.) A formal grievance must be

fil,

within thirty days from

the date of the incident or occurrence, or the discovery of the incident or occurrence, except in
instances beyond the offender's control. (Id. § 866.1.Vl.A.l.)

5

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 criteria for cceptance. (Id.

§ 866.1.VI.B.) A grievance meeting the criteria for acceptance is logge in on the day it is
received, and a "Grievance Receipt" is issued to the inmate within two d ys. (Id.

§ 866.1. VI.B.3.) If the grievance does not meet the criteria for acceptan e, prison officials
complete the "Intake" section of the grievance and return the grievance tl the inmate within two
working days. (Id. § 866.1. VI.B.4.) If the inmate desires a review of th, intake decision, he or
she must send the grievance form to the Regional Ombudsman within fivl e calendar days of
receipt. (Id. § 866.1.VI.B.5.)

J

2. Grievance Appeals

Up to three levels of review exist for a regular grievance. (Id. § 66.1.Vl.C.) The
Facility Unit Head of the facility in which the offender is confined is resJonsible for Level I

review. (Id. § 866.1.VI. C.1.) If the offender is dissatisfied with the detertion at Level I, he
or she may appeal the decision to Level II, a review of which is conducteCl by the Regional

Administrator, the Health Services Director, the Superintendent for

Eduftion, or the Chief of

Operations for Offender Management Services. (Id. § 866.1.VI.C.2.)

e Level II response

informs the offender whether he or she "qualifies for" an appeal to Level III. (Id.

§ 866.1.Vl.C.2.g.)
3. Emergency Grievances Fail to Satisfy the Exhaustion Requirement
An offender may file an emergency grievance if he or she believel that there is a situation

or condition which may subject him or her to immediate risk of serious plrsonal injury or
irreparable harm. (Id. § 866.1 VII.A.) "The filing of an emergency griejance does not satisfy

6

the exhaustion requirement." (Tapp

Aff., 8.) As previously outlined, t

satisfy the exhaustion

requirement the offender must submit his or her complaint "by filing a egular Grievance with
the appropriate Informal Complaint, and appealing it through all availab e appeal levels." (Id)

B. Facts Pertainin to Sirleaf's Exhaustion of Administrativ Remedies
Sirleaf "has utilized the grievance procedure on numerous occas · ns during his
confinement." (Tapp Aff., 9.) On October 16, 2014, GCC staffreceiv d an informal complaint
(#GCC-14-INF-07554) from Sirleafin which he stated "[o]n 10-6-14 I c allenge VADOC
operating procedure 841.3 uncondition [sic] for my Jewish/Yahwist Hol Feasts, the Feast of
Trumpets, Fea[s]t of [W]eeks and [F]east of Tabernacles." (Id Encl. B, CF No. 34-1, at 24.) 10

K. Nicholas responded, "GRCC do[es] not write any operating procedur
[A]ccording to the policy there not any meals dietary[.]" (Id.)
On August 27, 2015, Sirleaf submitted an emergency grievance herein he notified staff
at GCC that he was ''requesting a temporary restraining order [directing hefendants to provide a]
Feast of Trumpets religious exercise." (Id at 22.) The staff member whl responded to Sirleafs
emergency grievance determined that it did not meet the definition of an mergency, and advised
Sirleaf"to write Warden Parker." (Id.)
On September 13, 2015, Sirleaf submitted an informal complaint (#GCC-15-INF-08178)
wherein he complained that he continued to suffer from violations of his ·ghts under RLUIPA as
well as the First and Fourteenth Amendments because staff at GCC "fail ed] to provide dietary
considerations for [his] feast religious exercises." (Id at 23.) A GCC s

member responded

that Sirleaf "ha[d] not [provided] enough information to provide an appr priate response to [his]

10

Enclosure B lacks any pagination. Accordingly, the Court here na:fter refers to this
submission by its docket number and the pagination assigned by the C
CF docketing system.
7

concerns." (Id) The staff member specifically asked Sirleafto detail

at dietary requirements

he was requesting and why. (Id)
On September 23, 2015, Sirleaf submitted a regular grievance

erein he complained

that he "suffer[ed] actual, imminent, irreparable injuries to [his] (RLUIP ), First & Fourteenth
Amendment rights." {Tapp Aff. Encl. C, at 1.) Specifically, Sirleaf co plained that the
Master Religious Calendar fail[ ed] to provide dietary consi eration for [his]
feast/religious exercise.
Per Warden's 9/21/15 respons , these dietary
considerations are: (1) Ecumenical feasts for (A) Feast of Trum ets, (B) Feast of
Tabernacles, (C) Feast of Weeks, (D) Feast of Dedicatio ; (2) a special
celebratory meal, no pork or pork products; and (3) communion rovisions for all
feast and fast days.

(Id) Institutional Ombudsman/Grievance Coordinator K. Whitehead re

ed the regular

grievance to Sirleaf for insufficient information, asking him to provide

e date of occurrence

and "specific details what [he was] denied." (Id at 2.) Sirleafnever res bmitted a regular
grievance concerning this matter. (Tapp Aff. ~ 11.)
Tapp avers that, based on the grievance records, Sirleaf failed to xhaust his
administrative remedies for his claims. (Id.

~

12.)

III. Exhaustion Analysis
The pertinent statute provides: "No action shall be brought with espect to prison
conditions under [42 U.S.C. § 1983] or any other Federal law, by a priso er 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 p ·soner to exhaust the
grievance procedures offered, whether or not the possible responses cove the specific relief
the prisoner demands." Booth v. Churner, 532 U.S. 731, 738 (2001). Ge erally, in order to
satisfy the exhaustion requirement, an aggrieved party must file a griev

e raising the claim and

pursue the grievance through all available levels of appeal, prior to bringi g his or her action to

8

court. See Woodford v. Ngo, 548 U.S. 81, 90 (2006). The Supreme Co

has instructed that

section 1997e(a) "requires proper exhaustion." Id at 93. The Supreme ourt explained that

"[p]roper exhaustion demands compliance with an agency's deadlines
procedural rules," id at 90, "'so that the agency addresses the issues on
(quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)).

d other critical
e merits."' Id.
e applicable prison rules

"define the boundaries of proper exhaustion." Jones v. Bock, 549 U.S. 1 9, 218 (2007).
Exhaustion is mandatory, and courts lack discretion to waive the exhaus ·on requirement. Porter

v. Nussle, 534 U.S. 516, 524 (2002)'.
Here, Sirleaf clearly failed to exhaust his administrative remedie
claims. As noted above, Sirleaf filed an emergency grievance, two info

al complaints, and a

regular grievance. The regular grievance was returned to him for insuffi ient information, and
Sirleaf was asked to provide dates of occurrences and specific details. S · leaf never resubmitted
a regular grievance that corrected the deficiencies. Thus, Sirleaf failed t exhaust his
administrative remedies because the GCC never had the "fair opportuni " to examine the merits
of his grievance. Woodford, 548 U.S. at 95. The proper rejection of Sirl afs inadequate or
defective September 23, 2015 grievance is not sufficient to exhaust his Lstrative remedies.

See Scott v. Kelly, No. 1: 11 CV25 (AJT/TCB), 2011 WL 6046400, at *2 k.D. Va. Dec. 2, 2011)
(citing Moore v. Bennette, 517 F.3d 717, 725, 729 (4th Cir. 2008)). Sirlelralso never pursued
any of his claims to a Level II appeal. Thus, he failed to comply with 42

.S.C. § 1997e(a). See

Woodford, 548 U.S. at 90. Sirleaf offers no argument to excuse his fail
administrative remedies for these claims. Accordingly, Sirleafs claims
WITHOUT PREJUDICE. See Duncan v. Clarke, No. 3:12CV482, 2015

9

· 1 be DISMISSED
75256, at *9 (E.D.

Va. Jan. 6, 2015) (explaining that "the normal remedy for a failure toe I aust under§ 1997e(a) is
dismissal without prejudice" (citing Booth, 532 U.S. at 735)).
IV. Outstanding Objections
Sirleaf "appeal[s] de novo to the United States District Court Jud es ... the
Memorandum Order of [the] Magistrate Judge ... denying 'without prej dice plaintiffs motion
for the requesting of the appointment of counsel' . . . . the denying of pl intif:fl' s] motion for
temporary restraining order ... and motion for preliminary injunction ... 'without prejudice'."
(ECF No. 30, at I.)
Pursuant to Federal Rule of Civil Procedure 72(a), a party may seek review of
nondispositive pretrial matters by a district court judge. The Rule provifs:

When a pretrial matter not dispositive of a party's claim or defense is
referred to a magistrate judge to hear and decide, the magis~rate judge must
promptly conduct the required proceedings and, when appropria~t· issue a written
order stating the decision. A party may serve and file objecti~ns to the order
within 14 days after being served with a copy. A party may not assign as error a
defect in the order not timely objected to. The district judge n 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, to the extent that Sirleaf objects to the purported denial of s motion for a
temporary restraining order or motion for preliminary injunction, Sirleaf 1led no motion for a
temporary restraining order or motion for preliminary injunction in the in tant action. Thus, no
order exists for Sirleaf to object to.
Second, the Court construes Sirleafto object to the Magistrate Ju ge's December 9, 2015
Memorandum Order denying without prejudice his Motion for Appointm nt of Counsel. (See
Mem. Order 1, ECF No. 13.) Sirleaffiled his "Appeal" on April 4, 2016, well beyond the
10

fourteen days permitted for objections. Thus, his objection to the Dece
Memorandum Order is untimely. Additionally, Sirleafprovides no ar

ent in support of his

protest of the Magistrate Judge's denial of his Motion for Appointment f Counsel. The
Magistrate Judge determined that counsel need not be appointed for Sirl afbecause "[t]his action
presents no complex issues or exceptional circumstances" and that Side

s "pleadings

demonstrate that he is competent to represent himself in the action." (M m. Order I, ECF
No. 13.) The Court discerns no error in the Magistrate Judge's conclusi n. Sirleafs Objections
(ECF No. 27) will be OVERRULED.

V. Conclusion
Accordingly, the Motion for Summary Judgment (ECF No. 33)

·11 be GRANTED.

Sirleafs claims will be DISMISSED WITHOUT PREJUDICE. Sirleaf emains free to file a
new complaint once he has properly exhausted his administrative reme · s with respect to his
claims. Sirleafs Objections (ECF No. 27) will be OVERRULED. The ction will be
DISMISSED.
An appropriate Order will accompany this Memorandum Opinio .

Date:

DEC 2 I 2016

Richmond, Virginia

II