Catherynne Kendrick v. Lavonda Donavion, et al

Filing

PER CURIAM OPINION FILED - THE COURT: KERMIT E. BYE, JAMES B. LOKEN and STEVEN M. COLLOTON (PUBLISHED); granting [3790546-2] motion to dismiss case filed by Ms. Sherri L. Robinson.; denying [3874064-2] motion waive oral argument filed by Ms. Brenna Ryan.; denying [3869422-2] motion for miscellaneous relief filed by Appellant Ms. Catherynne Whtyefawn Kendrick., denying [3795223-2] motion for miscellaneous relief filed by Appellant Ms. Catherynne Whtyefawn Kendrick., denying [3775309-2] motion for miscellaneous relief filed by Appellant Ms. Catherynne Whtyefawn Kendrick., denying [3775281-2] motion for miscellaneous relief filed by Appellant Ms. Catherynne Whtyefawn Kendrick. [3885292] [11-1564]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 11-1564
___________
Catherynne Whtyefawn Kendrick,
Appellant,
v.
Martin Pope, Classification
Administrator, Arkansas Department
of Correction; Pratt, Classification
Administrator, Arkansas Department
of Correction; Julie Redd,
Classification Administrator, Arkansas
Department of Correction; Shawna
Reid, Classification Administrator,
Arkansas Department of Correction;
Richardson-Beshears, Classification
Administrator, Arkansas Department
of Correction; Patricia A. Roberts,
Classification Administrator, Arkansas
Department of Correction; Mickey
Robertson, Classification
Administrator, Arkansas Department
of Correction; Santa Clause Runyun,
Classification Administrator, Arkansas
Department of Correction; L. K.
Sluder, Classification Administrator,
Arkansas Department of Correction;
Jim Smith, Classification
Administrator, Arkansas Department
of Correction; Judith Steed,
Classification Administrator, Arkansas

Appellate Case: 11-1564

Page: 1

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Appeal from the United States
District Court for the Eastern
District of Arkansas.
[PUBLISHED]

Date Filed: 03/01/2012 Entry ID: 3885292

Department of Correction; Lori
Tacker, Classification Administrator,
Arkansas Department of Correction;
Janet Tiner, Classification
Administrator, Arkansas Department
of Correction; Christy Townsend,
Classification Administrator, Arkansas
Department of Correction; Julia
Webber, Classification Administrator,
Arkansas Department of Correction;
Pam Wilson, Classification
Administrator, Arkansas Department
of Correction; Leslie H. Zomant,
Classification Administrator, Arkansas
Department of Correction; Kathleen
M. Dechant, Classification
Administrator, Arkansas Department
of Correction; Roy Agee,
Classification Administrator, Arkansas
Department of Correction; Bobbie
Allison, Classification Administrator,
Arkansas Department of Correction;
Candice Ashby, Classification
Administrator, Arkansas Department
of Correction; Roger L. Ayers,
Classification Administrator, Arkansas
Department of Correction; Ronald
Bailey, Classification Administrator,
Arkansas Department of Correction;
Henry Boyce, Classification
Administrator, Arkansas Department
of Correction; Maggie Capel,
Classification Administrator, Arkansas
Department of Correction; William
Caraway, Classification Administrator,
Arkansas Department of Correction;
Phillip W. Cargill, Classification

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Administrator, Arkansas Department
of Correction; Bernstein Coleman,
Classification Administrator, Arkansas
Department of Correction;
C. Corrington, Classification
Administrator, Arkansas Department
of Correction; Judy Taylor,
Classification Administrator, Arkansas
Department of Correction; June
Daniels, Classification Administrator,
Arkansas Department of Correction;
Wayland, Classification Administrator,
Arkansas Department of Correction;
Jeff Deen, Classification Administrator,
Arkansas Department of Correction;
Linda Dixon, Classification
Administrator, Arkansas Department
of Correction; Amanda C.
Dutton-Jackson, Classification
Administrator, Arkansas Department
of Correction; Linda Dykes-Cullum
Classification Administrator, Arkansas
Department of Correction; Stephanie
England, Classification Administrator,
Arkansas Department of Correction;
Nurzuhal Faust, Classification
Administrator, Arkansas Department
of Correction; Cherry Garrett,
Classification Administrator, Arkansas
Department of Correction; James
Gibson, Classification Administrator,
Arkansas Department of Correction;
William Jones, Classification
Administrator, Arkansas Department
of Correction; Wendy Kelley,
Classification Administrator, Arkansas
Department of Correction; Crystal

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Lavender, Classification Administrator,
Arkansas Department of Correction;
John Maples, Classification
Administrator, Arkansas Department
of Correction; Deborah Masters,
Classification Administrator, Arkansas
Department of Correction; Larry
May, Classification Administrator,
Arkansas Department of Correction;
P. McCoy, Classification
Administrator, Arkansas Department
of Correction; S. E. McCrory,
Classification Administrator, Arkansas
Department of Correction; Sonya
Whitefield McGinnis-Douglas,
Classification Administrator, Arkansas
Department of Correction; Larry
Norris, Classification Administrator,
Arkansas Department of Correction;
Dexter Payne, Classification
Administrator, Arkansas Department of
Correction; Petit, Classification
Administrator, Arkansas Department of
Correction; Kathy Pirano,
Classification Administrator, Arkansas
Department of Correction;
Defendants,
Lavonda K. Donavion, Sgt.,
McPherson Unit, ADC; Sara E.
Martin, Corporal, McPherson Unit,
ADC,
Appellees.

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Bobby Coleman, Classification
Administrator, Arkansas Department of
Correction; C. Compton, Classification
Administrator, Arkansas Department of
Correction,
Defendants.

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___________

Submitted: August 15, 2011
Filed: March 1, 2012
___________
Before LOKEN, BYE, and COLLOTON, Circuit Judges.
___________
PER CURIAM.

Arkansas inmate Catherynne Whtyefawn Kendrick appeals following the
district court’s disposition of her claims against Sergeant Lavonda K. Donavion, the
sole remaining defendant in this 42 U.S.C § 1983 action. Upon careful review, we
conclude that Kendrick administratively exhausted her constitutional claims arising
from the confiscation of her Catholic Bible, rosary beads, and other religious
materials during a November 2007 cell shakedown, and the subsequent failure to
return these items. We also conclude that – on the present record – trialworthy issues
exist on these claims. See Montin v. Estate of Johnson, 636 F.3d 409, 412 (8th Cir.
2011) (summary judgment standard of review); King v. Iowa Dep’t of Corr., 598 F.3d
1051, 1052 (8th Cir.), cert. denied, 131 S. Ct. 499 (2010) (de novo review of
administrative exhaustion).
Accordingly, we reverse as to the claims against Donavion, and we remand for
further proceedings consistent with this opinion. We also grant appellee Corporal
Sarah E. Martin’s motion to dismiss; we deny Kendrick’s motion to “reinstate”
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Martin; and we deny Kendrick’s remaining motions for relief, which in part raise
claims and allegations that can be addressed on remand.
COLLOTON, Circuit Judge, concurring in part and dissenting in part.
The district court, adopting a fourteen-page report and recommendation of a
magistrate judge, dismissed Catherynne Kendrick’s claims against Sergeant Lavonda
Dunavion of the Arkansas Department of Corrections (“ADC”). During the relevant
period, Kendrick was housed in punitive segregation at an Arkansas correctional
facility due to violations of prison disciplinary rules. “After a lengthy procedural
history, the District Court narrowed Kendrick’s numerous claims against multiple
defendants to two claims against one defendant: 1. That Dunavion destroyed her
Catholic Bible; and 2. confiscated her rosary beads.” Appellant’s Supplemental Br.,
at v. Kendrick claims that Dunavion’s actions violated Kendrick’s constitutional
right to the free exercise of religion under the First and Fourteenth Amendments.
The district court dismissed the claim concerning confiscation of a Catholic
Bible without prejudice for failure to exhaust administrative remedies. The court
dismissed the claim concerning rosary beads with prejudice on the merits. The
majority summarily reverses the judgment of the district court with no meaningful
explanation. I would affirm.*
Before filing suit under 42 U.S.C. § 1983, an inmate must exhaust all available
remedies. 42 U.S.C. § 1997e(a). If a claim is not exhausted, then the district court
must dismiss it. Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003).
The district court correctly ruled that Kendrick did not properly exhaust her
claim about confiscation of a Catholic Bible. Dunavion presented evidence that

*

I concur in the court’s resolution of the pending motions.
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Kendrick did not exhaust the grievance remedies available to her within the
correctional system. R. Doc. 428-7. The only pertinent evidence cited by Kendrick
in the district court, see R. Doc. 438, at 6, was a grievance form that complained
about the confiscation of four items, none of which was a Catholic Bible. R. Doc.
437-2, 437-3. The district court thus correctly concluded that the Catholic Bible
claim was not exhausted. On appeal, Kendrick submits for the first time two
grievance forms that refer to a Catholic Bible. Appellant’s App. Exh. 2-C-1, 2-D-1.
These documents were not presented in the district court, and they thus cannot
establish error in the district court’s exhaustion ruling. Stone v. Harry, 364 F.3d 912,
914-15 (8th Cir. 2004); Griffin v. Super Valu, 218 F.3d 869, 871 (8th Cir. 2000) (“We
do not consider as part of the record . . . documents upon which [appellant] attempt
to rely that were not before the district court.”). The new documents, moreover, show
only that Kendrick completed the first two steps of the three-stage grievance process,
not that she exhausted all available remedies. See R. Doc. 428-7, at ¶ 5, 437-1. The
district court’s dismissal without prejudice should be affirmed.
On Kendrick’s second claim, the court concludes that there is a “trialworthy
issue[]” on her contention that Dunavion violated Kendrick’s constitutional rights by
denying her access to rosary beads while in punitive segregation. But even assuming
there is a disputed issue of fact about whether Dunavion (as opposed to another
correctional officer) confiscated Kendrick’s rosary beads, there is no point in
conducting a trial to resolve that factual dispute if Dunavion is entitled to judgment
as a matter of law. Despite ordering supplemental briefs on the dispositive legal
question, the majority inexplicably declines to address it.
The district court’s judgment should be affirmed, because Dunavion’s alleged
confiscation of rosary beads did not violate the Constitution and, at a minimum,
Dunavion is entitled to qualified immunity—which is both a defense to liability and
an entitlement not to stand trial or to face the other burdens of litigation. Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1945-46 (2009). ADC policy forbids an inmate in punitive
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segregation to possess any item, including rosary beads, that could be wrapped
around the neck to commit suicide. Appellee’s App. 32, 42, 73. Assuming that this
policy burdened Kendrick’s right to exercise her religion, the policy is reasonably
related to legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89 (1987).
There is a “valid, rational connection,” id., between the prison policy
forbidding possession of property that could facilitate suicide and the State’s
legitimate interest in security and safety in the prison. See Hall v. Bellmon, 935 F.2d
1106, 1113 (10th Cir. 1991) (affirming district court’s conclusion that prison
regulations prohibiting inmates from possessing “items that can be worn around the
neck, including religious items, were, on their face, reasonably related to the
legitimate penological interests in . . . preventing suicide attempts.”). Kendrick
identifies no alternative policy that would fully accommodate her rights “at de
minimis cost to valid penological interests.” Turner, 482 U.S. at 91. Accommodating
Kendrick would require correctional officers to devote limited resources to
monitoring a safety risk that the policy otherwise eliminates. See Appellant’s Br. 5
(proposing that a guard could check on inmates hourly). Kendrick has alternative
means of exercising her religion while in punitive segregation: She is free to pray the
rosary without the beads and to use another method to keep track of the prayers. See
O’Lone v. Estate of Shabazz, 482 U.S. 342, 351-52 (1987) (upholding prison policy
as reasonable, even though it prohibited one form of religious observance, because
inmates could participate in other religious ceremonies); Murphy v. Missouri Dept.
of Corr., 372 F.3d 979, 983 (8th Cir. 2004) (“A prisoner need not be afforded [her]
preferred means of practicing [her] religion as long as [she] is afforded sufficient
means to do so.”). There is no need for a trial to resolve factual disputes about the
reasonableness of the prison policy as a matter of constitutional law.
At a minimum, Dunavion is entitled to qualified immunity. It was not clearly
established in 2007 that her enforcement of the ADC policy violated the First
Amendment. Even assuming there is room for debate about whether the policy was
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reasonably related to legitimate penological objectives, qualified immunity protects
“all but the plainly incompetent or those who knowingly violate the law.” Ashcroft
v. al-Kidd, 131 S. Ct. 2074, 2085 (2011) (internal quotation omitted). An objectively
reasonable correctional officer in Dunavion’s position could have believed that her
enforcement of a policy that prohibited possession of rosary beads in punitive
segregation was constitutional. See Hall, 935 F.2d at 1113 (holding that prison policy
barring Native American inmate from wearing a bear tooth necklace and medicine
bag around his neck due to security concerns, including risk of suicide, did not violate
First Amendment); Friend v. Kolodzieczak, 923 F.2d 126, 128 (9th Cir. 1991)
(holding that prison regulation prohibiting inmates from possessing rosary beads in
cells did not violate First Amendment). Dunavion is therefore entitled to immunity
from liability, and also to avoid the burdens of litigation and trial that the majority
opinion imposes.
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