United States District Court, E.D. Virginia, Richmond Division
VICTOR M. ETTERSON, Plaintiff,
JEFFERY NEWCOME, et al., Defendants.
A. Gibney, Jr. United States District Judge
Etterson, a former Virginia detainee proceeding pro
se and in forma pauperis, filed this 42 U.S.C.
§ 1983 action. By Memorandum Opinion and Order entered on
October 5, 2015, the Court dismissed all claims except the
First Amendment claim against Defendants Sergeant Moore and
Jailer McCormick. Etterson v. Newcome, No.
3:14CV650, 2015 WL 5818220, at *3 (E.D. Va. Oct. 5, 2015). By
Memorandum Opinion and Order entered on July 19, 2016, the
Court denied Defendants' Motion to Dismiss and directed
that any party wishing to file a dispositive motion do so
within sixty days. Etterson v. Newcome, No.
3:14CV650, 2016 WL 3912034, at *5 (E.D. Va. July 19, 2016).
The action proceeds on Etterson's claim that Defendants
Moore and McCormick violated his rights under the Free
Exercise Clause of the First Amendment  by removing him from
the list of inmates who were approved to receive Ramadan
meals after they observed him eating during the Ramadan fast.
matter is before the Court on the Motion for Summary Judgment
filed by Defendants Moore and McCormick. (ECF No. 26.)
Despite providing Etterson with appropriate
Roseboronotice, Etterson has not responded.
This matter is ripe for judgment. For the reasons stated
below, the Court will GRANT the Motion for Summary Judgment,
and Etterson's claim against Defendants Moore and
McCormick will be DISMISSED because he failed to exhaust his
STANDARD FOR SUMMARY JUDGMENT
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). 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 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)).
Moore and McCormick ask the Court to dismiss Etterson's
First Amendment claim, inter alia, because Etterson
failed to exhaust his administrative remedies prior to filing
this action, as required by 42 U.S.C. § 1997e(a).
Because the exhaustion of administrative remedies is an
affirmative defense, Defendants Moore and McCormick 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, Defendants Moore and McCormick
have submitted, inter alia: (1) a Declaration from
Walter J. Minton, the Assistant Superintendent at RRJ (Mem.
Supp. Mot. Summ. J. Attach. 3 ("Minton Decl."), ECF
No. 27-3); (2) the portion of the RRJ Inmate Handbook that
sets forth the grievance procedure (id Ex. A, at
5-6); (3) copies of grievance material submitted by Etterson
(id. Exs. B-C, at 7-12); and, (4) Etterson's
Inmate Release Checklist (id. Ex. D, at 14).
Etterson failed to respond, Etterson fails to cite the Court
to any evidence that he wishes the Court to consider in
opposition to the Motion for Summary Judgment. See
Fed. R. Civ. P. 56(c)(3) (emphasizing that "[t]he court
need consider only the cited materials" in deciding a
motion for summary judgment). Etterson's complete failure
to present any evidence to counter the Motion for Summary
Judgment permits the Court to rely solely on Defendants Moore
and McCormick's 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
search of evidence to support a party's opposition to
summary judgment"' (quoting Skotak v. Tenneco
Resins, Inc., 953 F.2d 909, 915 & n.7 (5th Cir.
the following facts are established for the Motion for
Summary Judgment. All permissible inferences are drawn in
favor of Etterson.
RRJ's Grievance Procedure
"[t]he grievance procedure is a mechanism allowing
inmates to express their concerns with jail policy,
procedure, and treatment." (Minton Decl. Ex. A, at 6.)
Inmates may file grievances "concerning personal health
and welfare or the operations and services of [RRJ]."
(Id.) "Inmates are made aware of the grievance
procedure when they come in to [RRJ], and it is included in
their inmate handbook." (Minton Decl. ¶ 3.)
to submitting a written grievance, an inmate at RRJ
"must first make an effort to verbally resolve the
situation with [his or her] Pod Officer." (Minton Decl.
Ex. A, at 6.) If the situation is not resolved to the
inmate's satisfaction, the inmate "may request an
Inmate Grievance Form." (Id.) The inmate
"must submit the completed form to [his or her] housing
officer within twenty-four (24) hours of the incident that
has caused the grievance." (Id.) The Inmate
Grievance Form "must be addressed to the Officer, filled
out completely and returned within twelve (12) hours."
(Id.) Each Inmate Grievance Form may only address
one issue; any grievance that "address[es] more than one
issue will not be accepted . . . ." (Id.) A
"staff member or section has seven (7) days from date of
receipt to reply to [the] grievance, excluding holidays and
inmate who is dissatisfied with the response "may appeal
the response within 24 hours." (Id.) An inmate
wishing to appeal must obtain an Inmate Grievance Appeal Form
from the Pod Officer. (Id.) "The original
Inmate Grievance Form must accompany an appeal."
(Id.) RRJ has "only one level of appeal; the
Division Chief for [the inmate's] assigned area will
respond to [the inmate's] appeal and return the appeal
response within seven (7) days, excluding holidays and
weekends." (Id.) The Division Chief s response
is final. (Id.) "An inmate has not exhausted
the grievance procedure at [RRJ] with respect to any
particular grievance unless he has appealed the response to
that grievance." (Minton Decl. ¶ 4.)
inmate who is released while a grievance is pending
"will be asked if [he or she] wish[es] to continue the
grievance." (Minton Decl. Ex. A, at 6.) If the inmate
does wish to pursue the grievance, "the response will be