MEMORANDUM OPINION

JAMES SPENCER, District Judge

Plaintiff, a Virginia inmate proceeding pro se and in forma pauperis, filed this civil action under 42 U.S.C. § 1983. Plaintiff's Amended Complaint alleges that state officials have denied Plaintiff appropriate dental care while he has been incarcerated at Sussex II State Prison ("Sussex II"). Defendant Harold Clarke filed a motion for summary judgment arguing, inter alia, that he is not subject to suit on a theory of respondeat superior. (Docket No. 24.) Clarke provided appropriate Roseboro notice (Docket No. 26), and Plaintiff responded to the motion (Docket No. 28). The matter is ripe for adjudication.

I. SUMMARY OF PLAINTIFF'S ALLEGATIONS

Plaintiff alleges that his lack of a bridge or denture has resulted in "eating difficulties, excruciating pain of the mouth and bleeding gum when food is chewed on that extracted, hollow spot and severe weight lost from not being able to chew food throughly for digested process." (Am. Compl. ¶ 17 (all errors in original).)

Plaintiff asserts that Clarke has the authority to make policy, and that he arbitrarily promulgated Department Operating Procedure 720.6 which prohibits Plaintiff from receiving a single tooth bridge or single tooth denture. Plaintiff therefore contends that Clarke is exhibiting deliberate indifference to Plaintiff's medical needs. Plaintiff seeks $110,000 in damages and an injunction ordering the defendants to provide Plaintiff with a bridge or denture, as well as to fill Plaintiff's cavities.

II. 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)). 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., 477 U.S. 242, 255 (1986)). Nevertheless, "`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)).

Clarke has provided his own affidavit, an affidavit from the grievance coordinator at Sussex II, and authenticated copies of the written grievances and responses as part of the administrative remedies process. Plaintiff submitted a sworn declaration (Docket No. 28, Ex. A), and Plaintiff verified his complaint under penalty of perjury.

The facts offered by affidavit must be in the form of admissible evidence. See Fed.R.Civ.P. 56(c)(2). In this regard, the statement in the affidavit or sworn statement "must be made on personal knowledge . . . and show that the affiant or declarant is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4). Furthermore, summary judgment affidavits must "set out facts." Id. Therefore, "summary judgment affidavits cannot be conclusory or based upon hearsay." Evans v. Techs. Apps. Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996) (internal citation omitted) ( citing Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970, 975 (4th Cir. 1990); Md. Highways Contractors Ass'n v. Maryland, 933 F.2d 1246, 1252 (4th Cir. 1991)). The absence of an "affirmative showing of personal knowledge of specific facts" prevents the consideration of such facts in conducting the summary judgment analysis. EEOC v. Clay Printing Co., 955 F.2d 936, 945 n. 9 (4th Cir. 1992) (internal quotation marks omitted).

III. ANALYSIS

Plaintiff filed suit against Clarke in both Clarke's official and individual capacities. In order to state a viable claim under 42 U.S.C. § 1983, Plaintiff must allege facts that indicate a person acting under color of state law deprived him or her of a constitutional right or of a right conferred by a law of the United States. See Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998). "[N]either a State nor its officials acting in their official capacities are `persons' under § 1983." Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989).

Additionally, States retain immunity from suits as "a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today . . . except as altered by the plan of the [Constitutional] Convention or certain constitutional Amendments." Alden v. Maine, 527 U.S. 706, 713 (1999). "[Sovereign] immunity applies to state agencies that may be properly characterized as `arm[s] of the State,' as well as to state employees acting in their official capacity." Harter v. Vernon, 101 F.3d 334, 337 (4th Cir. 1996) (second alteration in original) (citation omitted) ( quoting Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977)). Therefore, Virginia's sovereign immunity bars Plaintiff's claim against Clarke in Clarke's official capacity. Dance v. City of Richmond Police Dep't, 3:09-CV-423-HEH, 2009 WL 2877152, at *4 (E.D. Va. Sept. 2, 2009) ( citing Harter, 101 F.3d at 337). Accordingly, Plaintiff's claim against Clarke in Clarke's official capacity for monetary damages will be DISMISSED with prejudice.

B. Respondeat Superior

To the extent Plaintiff seeks to hold Clarke liable under a theory of vicarious liability, the Court notes that the common-law doctrine of respondeat superior does not apply in § 1983 actions. Monell v. Dep't of Social Servs., 436 U.S. 658, 694 (1978); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977). Rather, Plaintiff must demonstrate that Clarke personally was deliberately indifferent to Plaintiff's serious medical need. Miltier v. Beorn, 896 F.2d 848, 854 (4th Cir. 1990). This standard requires Plaintiff to introduce evidence from which the finder of fact could conclude that "the official in question subjectively recognized a substantial risk of harm" and "that the official in question subjectively recognized that his actions were `inappropriate in light of that risk.'" Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004) ( quoting Rich v. Bruce, 129 F.3d 336, 340 n. 2 (4th Cir. 1997)). For the reasons explained below, Plaintiff has not done so.

C. Clarke's Promulgation of Department Policy

Plaintiff suggests he was denied dental care as a result of "another's conduct in execution of [Clarke's] policies or customs." Kendrick v. Russell, No. 7:11-cv-00099, 2011 WL 902203, at *2 (W.D. Va. Mar. 14, 2011) ( citing Fisher v. Wash. Metro. Area Transit Auth., 690 F.2d 1133, 1142-43 (4th Cir. 1982), abrogated on other grounds by Cnty. of Riverside v. McLaughlin, 500 U.S. 44 (1991)). The policy Plaintiff challenges is VDOC Operating Procedure 720.6. Plaintiff has not argued, let alone established, as he must, that the Operating Procedure is unconstitutional. Mosley v. Johnson, No. 1:09cv992 (LO/JFA), 2011 WL 2077804, at *5 (E.D. Va. May 23, 2011) ( citing Hause v. Vaught, 993 F.2d 1079, 1082 (4th Cir. 1993)). Nor has Plaintiff produced any admissible evidence suggesting that Clarke "directed, supervised, participated in, authorized or even . . . condoned by knowing acquiescence the specific incident upon which this claim for relief is based." Hall v. Tawney, 621 F.2d 607, 615 (4th Cir. 1980) (emphasis added).

Plaintiff boldly asserts that he was denied medical care as a result of a dentist's reliance on Department Operating Procedure 720.6. Although Plaintiff has not produced the Operating Procedure, the Court takes judicial notice of the Operating Procedure as it appears on VDOC's website. See Operating Procedure 720.6 ("VDOC Op. 720.6"), available at

The Operating Procedure does not appear to deny all single-tooth dentures. Offenders requiring complete or partial dentures are characterized as "Class 2" unless the offender experiences extreme pain or need for immediate intervention, in which case the offender falls into "Class 3." VDOC Op. 720.6(IV)(H). The prisons provide all dental care under the direction and supervision of a dentist. VDOC Op. 720.6(VIII)(A). Fixed bridges are considered "dentally acceptable but not dentally mandatory" and are therefore not provided by VDOC. VDOC Op. 720.6(V)(C). Existing bridges, however, will be repaired when necessary. VDOC Op. 720.6(VIII)(C)(4)(a)(iii). Dentures are provided when the dentist determines that they are necessary for mastication and the prisoner's release date is at least one year away. VDOC Op. 720.6(VIII)(C)(4)(d)(i).

The Operating Procedure makes clear that the determination of whether to provide a partial denture lies within the discretion of the facility dentist. Clarke is entitled to rely on the dentist's judgment regarding the appropriate course of Plaintiff's treatment. Wilson v. Coleman, No. 7:09CV00325, 2009 WL 3055268, at *6 (W.D. Sept. 24, 2009) ( citing Miltier, 896 F.2d at 854). Because Plaintiff has produced no admissible evidence suggesting that the facility dentist relied on an unconstitutional policy promulgated by Clarke, Clarke's motion for summary judgment (Docket No. 24) will be GRANTED.

An appropriate Order will accompany this Memorandum Opinion.

Date: 8-2-11

Richmond, Virginia