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Sirleaf v. Robinson

United States District Court, E.D. Virginia, Richmond Division

December 21, 2016

MOMOLU V.S. SIRLEAF, JR., Plaintiff,
v.
DAVID ROBINSON, et aL9 Defendants.

          MEMORANDUM OPINION

          M. Hannah Lauck United Stated District Judge.

         Momolu V.S. Sirleaf, Jr., a Virginia inmate proceeding pro se and in forma pauperis, filed this civil action under 42 U.S.C. § 1983.[1] 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[2] have violated his right to practice his religion as a "member[] of the Common Wealth of Israel." (Part. Compl. 2.)[3] The Court construes Sirleaf to raise the following claims for relief:[4]

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")[5] 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[6] 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[7] 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.)

         The matter is now before the Court on Defendants' Motion for Summary Judgment. (ECF No. 33.) Despite providing Sirleaf with appropriate Roseboro[8]notice, Sirleaf has not responded.

         This 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

         I. Summary Judgment Standard

         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). 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)).

         Defendants 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"));[9] and, (3) copies of grievances and informal complaints submitted by Sirleaf (id. Ends. B-C).

         Sirleaf 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 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

         Operating 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.)

         "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 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 ...


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