United States District Court, E.D. Virginia, Richmond Division
December 21, 2016
MOMOLU V.S. SIRLEAF, JR., Plaintiff,
DAVID ROBINSON, et aL9 Defendants.
Hannah Lauck United Stated District Judge.
V.S. Sirleaf, Jr., a Virginia inmate proceeding pro
se and in forma pauperis, filed this civil
action under 42 U.S.C. § 1983. The action proceeds on his
Particularized Complaint (ECF No. 29). In the Particularized
Complaint, Sirleaf argues that, during his incarceration at
the Greensville Correctional Center ("GCC"),
Defendants have violated his right to practice his
religion as a "member of the Common Wealth of
Israel." (Part. Compl. 2.) The Court construes Sirleaf to
raise the following claims for relief:
Claim One: Defendants placed a substantial burden on
Sirleaf's exercise of his religion in violation of the
Religious Land Use and Institutionalized Persons Act
("RLUIPA") by denying Sirleaf s request for religious
feasts for "(1) the Feast of Weeks; (2) the Feast of
Trumpets; [and] ¶ 3) the Feast of Tabernacles."
(Id. at 9-10.) 1
Claim Two: Defendants violated Sirleaf s First
Amendment right to free exercise of his religion by
"depriving] religious feasts calories during the
Plaintiff's] ... religious feast exercises."
(Id. at 11.)
Claim Three: Defendants Robinson and Clarke violated Sirleaf
s Fourteenth Amendment right to equal protection of the law by
"providing additional religious feast calories for the
similarly situated inmates of the European and Arabic
religions, but deprivation of religious feast calories for
the Plaintiff." (Id. at 12.)
matter is now before the Court on Defendants' Motion for
Summary Judgment. (ECF No. 33.) Despite providing Sirleaf
with appropriate Roseboronotice, Sirleaf has not
matter is ripe for judgment. For the reasons stated below,
Defendants' Motion for Summary Judgment will be GRANTED,
and Sirleaf s claims will be DISMISSED because he
Summary Judgment Standard
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)).
ask the Court to dismiss Sirleaf s 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, 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, Defendants submit: (1)
the affidavit of Shirley Tapp, the Grievance Coordinator at
GCC (Mem. Supp. Mot. Summ. J. Ex. 1 ("Tapp Aff."),
ECF No. 34-1); (2) a copy of Virginia Department of
Corrections ("VDOC") Operating Procedure §
866.1 (id. Encl. A ("Operating Procedure §
866.1")); and, (3) copies of grievances and informal
complaints submitted by Sirleaf (id. Ends. B-C).
did not respond to the Motion for Summary Judgment, thereby
failing to cite to any evidence that he wishes the Court to
consider in opposition. 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). Sirleaf s Particularized Complaint was sworn to
under penalty of perjury; however, it fails to address his
attempts at exhaustion except for the following conclusory
statements that "plaintiff exhausted [his] remedies
pursuant to O.P. #866 1 Offender Grievance Procedure.
However, [his] complaints were refused process on the merits
at the intake process. Nonetheless, plaintiff appealed the
intake decision to exhaustion, including defendant
Clarke's office." (Part. Compl. 13.) Sirleaf s
"[a]iry generalities [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. Val
May 28, 2015) (alterations in original) (quoting United
States v. Roane, 378 F.3d 382, 400-01 (4th Cir. 2004)).
Sirleaf s 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 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. 1992))); see Fed. R. Civ. P.
56(c)(3) ("The Court need only consider the cited
the following facts are established for the Motion for
Summary Judgment. The Court draws all permissible inferences
in favor of Sirleaf.
VDOC's Grievance Procedure
Procedure § 866.1, Offender Grievance Procedure, is the
mechanism used to resolve inmate complaints in the VDOC.
(Tapp Aff. f 4.) 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 or she has made a good faith
effort to resolve 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.
(Id. § 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.)
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 calendar days have expired from
the date the Informal Complaint was logged without the
offender receiving a response, the offender may submit a
Grievance on the issue and attach the Informal Complaint
receipt as documentation of the attempt to resolve the issue
informally." (Id. § 866.1.V.B.2.) A formal
grievance must be filed 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 .VI.A. 1.)
Grievance Intake Procedure
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 acceptance.
(Id. § 866.1.VLB.) A grievance meeting the
criteria for acceptance is logged in on the day it is
received, and a "Grievance Receipt" is issued to
the inmate within two days. (Id. §
866.1.VI.B.3.) If the grievance does not meet the criteria
for acceptance, prison officials complete the
"Intake" section of the grievance and return the
grievance to the inmate within two working days.
(Id. § 866.1.VI.B.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.)
three levels of review exist for a regular grievance.
(Id. § 866.1.VI.C.) The Facility Unit Head of
the facility in which the offender is confined is responsible
for Level I review. (Id. § 866.1.VI.C.1.) If
the offender is dissatisfied with the determination at Level
I, he or she may 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
Chief of Operations for Offender Management Services.
(Id. § 866.1.VI.C.2.) The Level II response
informs the offender whether he or she "qualifies
for" an appeal to Level III. (Id.
Emergency Grievances Fail to Satisfy the Exhaustion
offender may file an emergency grievance if he or she
believes that there is a situation or condition which may
subject him or her to immediate risk of serious personal
injury or irreparable harm. (Id. § 866.1 VILA.)
"The filing of an emergency grievance does not satisfy
the exhaustion requirement." (Tapp Aff. f8.) As
previously outlined, to satisfy the exhaustion requirement
the offender must submit his or her complaint "by filing
a Regular Grievance with the appropriate Informal Complaint,
and appealing it through all available appeal levels."
Facts Pertaining to Sirleafs Exhaustion of Administrative
"has utilized the grievance procedure on
numerous occasions during his confinement."
(Tapp Aff. ¶ 9.) On October 16, 2014, GCC staff received
an informal complaint (#GCC-14-INF-07554) from Sirleaf in
which he stated "[o]n 10-6-141 challenge VADOC operating
procedure 841.3 uncondition [sic] for my Jewish/Yahwist Holy
Feasts, the Feast of Trumpets, Fea[s]t of [W]eeks and [F]east
of Tabernacles." (Id. End. B, ECF No. 34-1, at
24.)K. Nicholas responded, "GRCC do[es]
not write any operating procedure policy 841.3. [According to
the policy there not any meals dietary[.]"
August 27, 2015, Sirleaf submitted an emergency grievance
wherein he notified staff at GCC that he was "requesting
a temporary restraining order [directing Defendants to
provide a] Feast of Trumpets religious exercise."
(Id. at 22.) The staff member who responded to
Sirlea's emergency grievance determined that it did not
meet the definition of an emergency, and advised Sirleaf
"to write Warden Parker." (Id.)
September 13, 2015, Sirleaf submitted an informal complaint
(#GCC-15-INF-08178) wherein he complained that he continued
to suffer from violations of his rights 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
staff member responded that Sirleaf "ha[d] not
[provided] enough information to provide an appropriate
response to [his] concerns." (Id.) The staff
member specifically asked Sirleaf to detail what dietary
requirements he was requesting and why. (Id.)
September 23, 2015, Sirleaf submitted a regular grievance
wherein he complained that he "suffer[ed] actual,
imminent, irreparable injuries to [his] (RLUIP1A), First
& Fourteenth Amendment rights." (Tapp Aff. Encl. C,
at 1.) Specifically, Sirleaf complained that the
Master Religious Calendar fail[ed] to provide dietary
consideration for [his] feast/religious exercise. Per
Warden's 9/21/15 response, these dietary considerations
are: (1) Ecumenical feasts for (A) Feast of Trumpets, (B)
Feast of Tabernacles, (C) Feast of Weeks, (D) Feast of
Dedication; (2) a special celebratory meal, no pork or pork
products; and (3) communion provisions for all feast and fast
(Id.) Institutional Ombudsman/Grievance Coordinator
K. Whitehead returned the regular grievance to Sirleaf for
insufficient information, asking him to provide title date of
occurrence and "specific details what [he was]
denied." (Id. at 2.) Sirleaf never resubmitted
a regular grievance concerning this matter. (Tapp Aff. 111.)
avers that, based on the grievance records, Sirleaf failed to
exhaust his administrative remedies for his claims.
pertinent statute provides: "No action shall be brought
with respect to prison conditions under [42 U.S.C. §
1983] or any other Federal law, by a prisoner 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 prisoner to exhaust the grievance procedures
offered, whether or not the 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, an aggrieved party
must file a grievance raising the claim and pursue the
grievance through all available levels of appeal, prior to
bringing his or her action to court. See Woodford v.
Ngo, 548 U.S. 81, 90 (2006). The Supreme Court has
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. (quoting Pozo v. McCaughtry, 286 F.3d
1022, 1024 (7th Cir. 2002)). The applicable prison rules
"define the boundaries of proper exhaustion."
Jones v. Bock, 549 U.S. 199, 218 (2007). Exhaustion
is mandatory, and courts lack discretion to waive the
exhaustion requirement. Porter v. Nussle, 534 U.S.
516, 524 (2002).
Sirleaf clearly failed to exhaust his administrative remedies
with regard to his claims. As noted above, Sirleaf filed an
emergency grievance, two informal complaints, and a regular
grievance. The regular grievance was returned to him for
insufficient information, and Sirleaf was asked to provide
dates of occurrences and specific details. Sirleaf never
resubmitted a regular grievance that corrected the
deficiencies. Thus, Sirleaf failed to exhaust his
administrative remedies because the GCC never had the
"fair opportunity" to examine the merits of his
grievance. Woodford, 548 U.S. at 95. The proper
rejection of Sirleaf s inadequate or defective September 23,
2015 grievance is not sufficient to exhaust his
administrative remedies. See Scott v. Kelly, No.
1:11CV25 (AJT/TCB), 2011 WL 6046400, at *2 (E.D. Va. Dec. 2,
2011) (citing Moore v. Bennette, 517 F.3d 717, 725,
729 (4th Cir. 2008)). Sirleaf also never pursued any of his
claims to a Level II appeal. Thus, he failed to comply with
42 (U.S.C. § 1997e(a). See Woodford, 548 U.S.
at 90. Sirleaf offers no argument to excuse his failure to
exhaust his administrative remedies for these claims.
Accordingly, Sirleaf s claims will be DISMISSED 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 a failure to exhaust under §
1997e(a) is dismissal without prejudice" (citing
Booth, 532 U.S. at 735)).
"appeal[s] de novo to the United States District Court
Judges ... the Memorandum Order of [the] Magistrate Judge ...
denying 'without prejudice plaintiffs motion for the
requesting of the appointment of counsel' the denying of
plaintiff's] motion for temporary restraining order ...
and motion for preliminary injunction .. L 'without
prejudice'." (ECF No.30, at 1.)
to Federal Rule of Civil 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. A party 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
Fed. R. Civ. P. 72(a). The Court construes Sirleaf s
"Appeal" as objections permitted under Rule 72(a)
to the extent that Sirleaf objects to the purported denial of
his motion for a temporary restraining order or motion for
preliminary injunction, Sirleaf filed 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.
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. 13.) Sirleaf filed his
"Appeal" on April 4, 2016, well beyond the fourteen
days permitted for objections. Thus, bis 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 Appointment
of Counsel. The Magistrate Judge determined that counsel need
not be appointed for Sirleaf because "[t]his action
presents no complex issues or exceptional circumstances"
and that Sirleaf s "pleadings demonstrate that he is
competent to represent himself in the action." (Mem.
Order 1, ECF No. 13.) The Court discerns no error in the
Magistrate Judge's conclusion. Sirleaf s Objections (ECF
No. 27) will be OVERRULED.
the Motion for Summary Judgment (ECF No. 33) will be GRANTED.
Sirleaf s claims will be DISMISSED WITHOUT PREJUDICE. Sirleaf
remains free to file a new complaint once he has properly
exhausted his administrative remedies with respect to his
claims. Sirleaf s Objections (ECF No. 27) will be OVERRULED.
The action will be DISMISSED.
appropriate Order will accompany this Memorandum Opinion.
 That statute provides, in pertinent
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
42 U.S.C. §1983.
The named Defendants are: David
Robinson, the Chief of Operations for the Virginia Department
of Corrections ("VDOC"); Curtis Wall, the Chaplain
at Get; and, Harold Clarke, the Director of the
 While the Particularized Complaint
names "Plaintiffs" and has attached signatures from
a number of inmates, as previously explained to Sirleaf,
"[t]he action will proceed with Momolu Sirleaf as the
sole plaintiff. To the extent any other inmate wishes to
pursue an action under 42 U.S.C. § 1983, he must submit
his own new civil action." (Mem. Order 1, ECF No. 2.)
The failed to exhaust his administrative remedies. Court
again reminded Sirleaf in its May 27, 2016 Memorandum Order
that "he is the sole Plaintiff in the instant action and
... he is not proceeding as the representative of a class as
his Particularized Complaint suggests." (Mem. Order 1,
ECF No. 30.)
 The Court corrects the spelling,
capitalization, and punctuation in the quotations from
Sirleaf s Particularized Complaint.
42U.S.C. § 2000cc-1(a).
 "Congress shall make no law
respecting an establishment of religion, or prohibiting the
free exercise thereof" U.S. Const, amend. I.
No State shall... deny to any person
within its jurisdiction the equal protection of the
laws." U.S. Const, amend. XIV, § 1.
 Roseboro v. Garrison, 528
F.2d 309 (4th Or. 1975).
 The Court has omitted the emphasis in
the quotations from this document.
 Enclosure B lacks any pagination.
Accordingly, the Court hereinafter refers to this submission
by its docket number and the pagination assigned by the
CM/ECF docketing system.