Sirleaf v. Robinson et al, No. 3:2015cv00340 - Document 38 (E.D. Va. 2016)

Court Description: 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)
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Sirleaf v. Robinson et al Doc. 38 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 Dockets.Justia.com Claim One: Defendants placed a substantial burden on 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 "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 grievance procedure when they are initially received into the VDOC. oriented to the offender 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 judge must referred to a magistrate judge to hear and decide, the issue a written promptly conduct the required proceedings and, when to the order order stating the decision. A party may serve and file 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