Sirleaf v. Wall, No. 3:2015cv00338 - Document 51 (E.D. Va. 2016)
Court Description: MEMORANDUM OPINION. Signed by District Judge M. Hannah Lauck on 11/15/2016. Copy mailed to Pro Se Plaintiff. (jsmi, )
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Sirleaf v. Wall Doc. 51 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.) Dockets.Justia.com 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 8 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 10
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