United States District Court, E.D. Virginia, Richmond Division
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.)
1,Grievance Intake ...