United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (GRANTING
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT)
HENRY E. HUDSON, District Judge.
Marty Ray McManus ("McManus"), a federal prisoner proceeding pro se and in forma pauperis, brings this Bivens action. This action proceeds on his Particularized Complaint. ("Complaint, " ECF No. 20.) McManus argues that Defendants violated his First, Eighth, and Fourteenth Amendment rights by searching his cell and confiscating his papers. This matter is before the Court on Defendants' Motion to Dismiss (ECF No. 31) or in the alternative Motion for Summary Judgment (ECF No. 34) on the ground that, inter alia, McManus failed to exhaust his administrative remedies. McManus has responded. For the reasons set forth below, the Motion for Summary Judgment (ECF No. 34) will be granted because McManus failed to exhaust his administrative remedies prior to filing the present action.
I. Claims For Relief
McManus raises the following claims for relief:
Claim One: Defendants violated his First Amendment right to access the courts by: (a) confiscating legal documents from his cell on May 26, 2013 and failing to return them; and (b) confiscating legal documents from his cell on April 28, 2014 and failing to return the documents.
Claim Two: Defendants violated his due process rights by: (a) confiscating legal documents from his cell on May 26, 2013 and failing to return the documents; and (b) confiscating legal documents from his cell on April 28, 2014 and failing to return the documents.
Claim Three: Defendant Lucas violated his Eighth Amendment rights and subjected him to cruel and unusual punishment by harassing him by searching his cell.
(Compl. 4-5.) McManus requests declaratory and injunctive relief and monetary damages. ( Id. at 6-7.)
II. Standard 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). The party seeking summary judgment bears the responsibility 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)).
In reviewing a summary judgment motion, the court "must draw all justifiable inferences in favor of the nonmoving party." United States v. Carolina Transformer Co., 978 F.2d 832, 835 (4th Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., All U.S. 242, 255 (1986)). However, a mere scintilla of evidence will not preclude summary judgment. Anderson, 477 U.S. at 251 (citing Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448 (1872)). "[T]here is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party... upon whom the onus of proof is imposed.'" Id. (quoting Munson, 81 U.S. at 448). Additionally, "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 summary judgment.'" Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n.7 (5th Cir. 1992)); see Fed.R.Civ.P. 56(c)(3) ("The court need consider only the cited materials....").
Defendants ask the Court to dismiss the action on the ground that McManus failed to exhaust his administrative remedies prior to filing this action. Because the exhaustion of administrative remedies is an affirmative defense, Defendants 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, the Defendants submitted: (1) the Declaration of Cornelia J. Coll, a Paralegal Specialist, at the Federal Correctional Complex in Burner, North Carolina, which also provides legal services for FCC Petersburg (Mem. Supp. Mot. Summ. J. Ex. 1 ("Coll Declaration"), ECF No. 32-1); (2) McManus's administrative remedy request records from FCC Petersburg ( id. Attach. 1); (3) the Declaration of Phillip Vaughan, a Special Investigative Support Technician at FCC Petersburg (Mem. Supp. Mot. Summ. J. Ex. 2 ("Vaughan Declaration"), ECF No. 32-3); (4) McManus's relevant disciplinary records ( id. Attach. 1);and (5) a relevant Confiscation and Disposition of Contraband record (Mem. Supp. Mot. Summ. J. Ex. 3, ECF No. 32-5).
As a general rule, a non-movant must respond to a motion for summary judgment with affidavits or other verified evidence. Celotex Corp., 477 U.S. at 324. McManus submitted an unsworn Complaint and an unsworn Opposition and Rebuttal Motion ("Brief in Opposition, " ECF No. 36), and some administrative remedy request records that he filed with the Bureau of Prisons ("BOP") ( see, e.g., Br. Opp'n Exs. A & B). Because McManus failed to swear to the contents of his Complaint or Brief in Opposition under penalty of per jury, those documents fail to constitute admissible evidence. See United States v. White, 366 F.3d 291, 300 ...