Dean v. Department of Corrections et al (INMATE2)

Filing 45

REPORT AND RECOMMENDATION that: 1. Defendants Allen, Giles, and Longmier's motion for summary judgment (Doc. Nos. 27, 40) be GRANTED; 2. Plaintiff's complaint against Defendants Allen, Giles, and Longmire be DISMISSED with prejudice; 3. Def endants PHS, Inc., and Liebe's motion for summary judgment (Doc. No. 28) be GRANTED to the extent they seek dismissal of this case due to Plaintiff's failure to properly exhaust administrative remedies previously available to him at the Ven tress Correctional Facility; 4. The complaint against Defendants PHS, Inc., and Liebe be DISMISSED with prejudice in accordance with the provisions of 42 U.S.C. § 1997e(a) for Plaintiff's failure to exhaust administrative remedies available to him during his confinement at the Ventress Correctional Facility; and 5. Judgement be ENTERED in favor of Defendants and against Plaintiff. Objections to R&R due by 12/4/2009. Signed by Honorable Terry F. Moorer on 11/19/2009. (dmn)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION ____________________________ R O D N E Y C. DEAN, #244 759 P l a in tif f , v. WARDEN J.C. GILES, et al., D e f e n d a n ts . _____________________________ * * * * * 2:07-CV-342-WKW (W O )

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P la in t if f , Rodney Dean, filed this pro se civil rights action under 42 U.S.C. § 1983 a n d the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U .S .C . § 2000cc-1(a) et seq.,1 against Warden J.C. Giles, Sergeant Carolyn Longmire, Prison H e a lth Services, Inc., Nurse Barbara Liebe,2 and Commissioner Richard Allen, in their in d iv id u a l and official capacities. Plaintiff asserts constitutional violations related to his p re v io u s confinement at the Ventress Correctional Facility ["Ventress"] located in Clayton, A lab a m a .3 Specifically, Plaintiff claims that the correctional defendants violated his rights

1 Plaintiff actually requests relief under the Religious Freedom Restoration Act of 1993 (RFRA). The court, however, considers the claim as being brought pursuant to RLUIPA in view of the fact that Congress enacted RLUIPA following the Supreme Court's decision in City of Boeme v. Flores, 521 U.S. 507(1997), which struck down RFRA insofar as it applied to states and localities. 2 Plaintiff identified Nurse Liebe in the complaint as "B. Luke." 3 Since filing this complaint Plaintiff has been released from custody.

u n d e r the First Amendment and RLUIPA as a result of the Alabama Department of C o rre c tio n s ' ["ADOC"] grooming policy which resulted in him being "scalped" every time h e went to the chow hall when popular meals were served. Plaintiff further claims that the m a n n e r in which his hair was cut violated his Eighth Amendment rights, that he was s u b je c te d to a different hair length restriction than that applied to female inmates in violation o f his Fourteenth Amendment right to equal protection, and that he was subjected to u n c o n stitu tio n a l conditions of confinement and inadequate medical treatment also in

v iolatio n of his Eighth Amendment rights. Plaintiff requests trial by jury and seeks monetary d a m a g e s and injunctive relief for the alleged violations.4 (See Doc. Nos. 1, 2, 41.) D e f e n d a n ts filed answers, special reports, and supporting evidentiary materials a d d re ss in g Plaintiff's claims for relief. In these documents, the correctional defendants

a rg u e that they are entitled to summary judgment because Plaintiff has failed to demonstrate th a t he is entitled to relief on challenges to the prison conditions about which he complains. T h e medical defendants assert that the medical claims presented against them are due to be d i s m i s s e d because Plaintiff failed to exhaust an administrative remedy available to him at V e n t re s s . P u rs u a n t to the orders entered in this case and governing case law, the court deems

Plaintiff affirmed at the oral argument held in this matter that the relief he sought was that originally requested in his complaint and statement of facts in support thereof. (See Doc. Nos. 1, 2)

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it appropriate to treat Defendants' written reports as motions for summary judgment. (See D o c . No. 30); Bryant v. Rich, 530 F.3d 1368, 1375 (11th Cir. 2008) (Although an exhaustion d e f e n s e "is not ordinarily the proper subject for a summary judgment [motion,]" the defense is appropriate for summary judgment when the evidence demonstrates administrative re m e d ie s "are absolutely time barred or otherwise clearly infeasible."). Thus, this case is now p e n d in g on Defendants' motions for summary judgment. Upon careful consideration of the re c o rd as a whole, including the oral argument heard on November 5, 2009,5 the court c o n c lu d e s the Defendants' motions for summary judgment are due to be granted. I . SUMMARY JUDGMENT STANDARD " S u m m a ry judgment is appropriate `if the pleadings, depositions, answers to in te rro g a to rie s, and admissions on file, together with the affidavits, if any, show there is no g e n u i n e issue as to any material fact and that the moving party is entitled to judgment as a m a tte r of law.'" Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11 th C ir.2 0 0 7 ) (per curiam) (citation to former rule omitted); Fed.R.Civ.P. Rule 56(c), as amended D ec em b er 1, 2007, (Summary judgment "should be rendered if the pleadings, the discovery a n d disclosure materials on file, and any affidavits show that there is no genuine issue as to

The court heard oral argument on Plaintiff's challenge to the ADOC's grooming policy under RLUIPA .

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a n y material fact and that the movant is entitled to judgment as a matter of law.").6 The p a rty moving for summary judgment "always bears the initial responsibility of informing the d is tric t court of the basis for its motion, and identifying those portions of the [record, in c lu d in g pleadings, discovery materials and affidavits], which it believes demonstrate the a b se n c e of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1 9 8 6 ). The movant may meet this burden by presenting evidence indicating there is no d is p u te of material fact or by showing that the nonmoving party has failed to present e v id e n c e in support of some element of its case on which it bears the ultimate burden of p ro o f . Id. at 322-324. Defendants Allen, Giles, and Longmire have met their evidentiary burden. A d d itio n a lly, Defendants PHS, Inc., and Liebe have met their evidentiary burden and d em o n strat ed the absence of a genuine issue of material fact with respect to Plaintiff's failure to exhaust administrative remedies with respect to his allegations of inadequate medical c a r e . Thus, the burden shifts to Plaintiff to establish, with evidence beyond the pleadings, th a t a genuine issue material to each of his claims for relief exists. Clark v. Coats & Clark, In c ., 929 F.2d 604, 608 (11 th Cir.1991); Celotex, 477 U.S. at 324; Fed.R.Civ.P. 56(e)(2)

6 Effective December 1, 2007, "[t]he language of Rule 56 [was] amended ... to make the rule[] more ea sily understood and to make style and terminology consistent throughout the rules. These changes ... are stylistic only." Fed.R.Civ.P. 56 Advisory Committee Notes. Thus, although Rule 56 underwent stylistic ch an g es, its substance remains the same and, therefore, all cases citing the prior rule remain equally applicable to the current rule.

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(" W h e n a motion for summary judgment is properly made and supported, an opposing party m a y not rely merely on allegations or denials in its own pleading; rather, its response must ... set out specific facts showing a genuine issue for trial."). A genuine issue of material fact e x i sts when the nonmoving party produces evidence that would allow a reasonable factf in d e r to return a verdict in its favor. Greenberg, 498 F.3d at 1263. In civil actions filed by inmates, federal courts must distinguish between evidence of disputed facts and disputed matters of p rof essio n al judgment. In respect to the latter, our inferences must accord d e f e re n c e to the views of prison authorities. Unless a prisoner can point to su f f icie n t evidence regarding such issues of judgment to allow him to prevail o n the merits, he cannot prevail at the summary judgment stage. B e a rd v. Banks, 548 U.S. 521, 530, 126 S.Ct. 2572, 2578, 165 L.Ed.2d 697 (2006) (citation o m itte d ). Consequently, to survive the properly supported motions for summary judgment f ile d in this case, Plaintiff is required to produce "sufficient evidence" which would be a d m is s ib le at trial supporting his claims of various constitutional violations. Id.; Anderson v . Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "If the evidence [on which the nonmoving p a rty relies] is merely colorable ... or is not significantly probative ... summary judgment may b e granted." Id. at 249-250. "A mere `scintilla' of evidence supporting the opposing party's p o sitio n will not suffice; there must be enough of a showing that the [trier of fact] could rea so n ab ly find for that party. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 2 5 1 2 , 91 L.Ed.2d 202 (1986)." Walker v. Darby, 911 F.2d 1573, 1576-1577 (11 th Cir. 1990).

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C o n c lu s o ry allegations based on subjective beliefs are likewise insufficient to create a g en u ine issue of material fact and, therefore, do not suffice to oppose a motion for summary ju d g m e n t. Waddell v. Valley Forge Dental Associates, Inc., 276 F.3d 1275, 1279 (11 th Cir. 2 0 0 1 ); Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11 th Cir. 1997) (plaintiff's "conclusory a ss e rtio n s ..., in the absence of [admissible] supporting evidence, are insufficient to withstand s u m m a r y judgment."); Harris v. Ostrout, 65 F.3d 912, 916 (11 th Cir. 1995) (grant of su m m ary judgment appropriate where inmate produces nothing beyond "his own conclusory a lleg a tio n s" challenging actions of the defendants); Fullman v. Graddick, 739 F.2d 553, 557 (1 1 th Cir. 1984) ("mere verification of party's own conclusory allegations is not sufficient to o p p o se summary judgment...."). Hence, when a plaintiff fails to set forth specific facts s u p p o rte d by appropriate evidence sufficient to establish the existence of an element essential to his case and on which the plaintiff will bear the burden of proof at trial, summary j u d g m e n t is due to be granted in favor of the moving party. Celotex, 477 U.S. at 322 ( " [ F ] a ilu r e of proof concerning an essential element of the nonmoving party's case n e c e ss a rily renders all other facts immaterial."); Barnes v. Southwest Forest Industries, Inc., 8 1 4 F.2d 607, 609 (11 th Cir. 1987) (if on any part of the prima facie case the plaintiff presents in s u f f ic ie n t evidence to require submission of the case to the trier of fact, granting of su m m ary judgment is appropriate). F o r summary judgment purposes, only disputes involving material facts are relevant.

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U n i te d States v. One Piece of Real Property Located at 5800 SW 74 th Avenue, Miami, F lo r id a , 363 F.3d 1099, 1101 (11 th Cir. 2004). What is material is determined by the s u b s ta n tiv e law applicable to the case. Anderson, 477 U.S. at 248; Lofton v. Secretary of the D e p a rtm e n t of Children and Family Services, 358 F.3d 804, 809 (11 th Cir. 2004) ("Only f a ctu a l disputes that are material under the substantive law governing the case will preclude e n try of summary judgment."). "The mere existence of some factual dispute will not defeat s u m m a ry judgment unless that factual dispute is material to an issue affecting the outcome o f the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11 th Cir. 2003) (citatio n omitted). To demonstrate a genuine issue of material fact, the party opposing s u m m a ry judgment "must do more than simply show that there is some metaphysical doubt a s to the material facts.... Where the record taken as a whole could not lead a rational trier o f fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita E le c . Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In cases where the e v id e n c e before the court which is admissible on its face or which can be reduced to a d m iss ib le form indicates that there is no genuine issue of material fact and that the party m o v in g for summary judgment is entitled to it as a matter of law, summary judgment is p ro p e r. Celotex, 477 U.S. at 323-324 (summary judgment appropriate where pleadings, e v id e n tia ry materials and affidavits before the court show there is no genuine issue as to a re q u isite material fact); Waddell, 276 F.3d at 1279 (to establish a genuine issue of material

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f a c t, the nonmoving party must produce evidence such that a reasonable trier of fact could return a verdict in his favor). A lth o u g h factual inferences must be viewed in a light most favorable to the n o n m o v in g party and pro se complaints are entitled to liberal interpretation by the courts, a p r o se litigant does not escape the burden of establishing by sufficient evidence a genuine is s u e of material fact. Beard, 548 U.S. at 525, 126 S.Ct. at 2576; Brown v. Crawford, 906 F .2 d 667, 670 (11 th Cir. 1990). Thus, a plaintiff's pro se status alone does not mandate this c o u r t' s disregard of elementary principles of production and proof in a civil case. In this c a se , Plaintiff has failed to demonstrate requisite genuine issues of material fact so as to p re c lu d e summary judgment. Matsushita, supra. II. DISCUSSION A. Injunctive Relief P la in tif f is no longer in custody of the Alabama Department of Corrections. The tra n sf e r or release of a prisoner renders moot any claims for injunctive or declaratory relief. S e e County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); see also Cotterall v. Paul, 7 5 5 F.2d 777, 780 (11 th Cir. 1985) (past exposure to even illegal conduct does not in and of itself show a pending case or controversy regarding injunctive relief if unaccompanied by any c o n tin u in g present injury or real and immediate threat of repeated injury). As it is clear from th e pleadings and records before the court that Plaintiff is no longer incarcerated, his requests

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f o r injunctive and/or declaratory relief have been rendered moot. B. Official Capacity Claims A s noted, Plaintiff seeks to sue Defendants in their official as well as their individual c a p ac itie s. "[A] state official may not be sued in his official capacity unless the state has w a iv e d its Eleventh Amendment immunity, see Pennhurst State School & Hospital v. H a l d e r m a n , 465 U.S. 89, 100, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984), or Congress has a b ro g a te d the state's immunity, see Seminole Tribe v. Florida, [517 U.S. 44, 59], 116 S.Ct. 1 1 1 4 , 1125, 134 L.Ed.2d 252 (1996). Alabama has not waived its Eleventh Amendment im m u n ity, see Carr v. City of Florence, 916 F.2d 1521, 1525 (11 th Cir. 1990) (citations o m itte d ), and Congress has not abrogated Alabama's immunity. Therefore, Alabama state o f f ic ia ls are immune from constitutional claims brought against them in their official c a p ac itie s." Lancaster v. Monroe County, 116 F.3d 1419, 1429 (11 th Cir. 1997).7 In light of the foregoing, it is clear that Defendants, as state officials entitled to E le v e n th Amendment immunity when sued in their official capacities. Defendants are, th e re f o re , entitled to absolute immunity from the constitutional claims asserted by Plaintiff

7 The court notes that inmates may bring RLUIPA claims for nominal damages (but not compensatory damages or punitive damages absent a showing of physical injury) against a defendant in his/her official capacity. See Smith v. Allen, 502 F.3d 1255, 1270-71, 1275-76 (11th Cir. 2007), reh'g denied and reh'g en banc denied, 277 Fed.Appx. 979 (11th Cir. Mar. 3, 2008) (Table No. 05-16010-cc). Inmates may not, however, bring a claim for monetary damages against a prison official in his/her individual capacity. Id. at 1275.

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a g a i n s t them in their official capacities. C . Commissioner Allen T o the extent Plaintiff names Richard Allen on the basis of his position as C o m m is s io n e r of the Alabama Department of Corrections, he is entitled to no relief. Plaintiff h a s in no way linked Commissioner Allen to the constitutional allegations set forth in his c o m p lain t. Further, he has not produced any evidence to show that Defendant Allen is d ire c tly responsible for or personally participated in establishing the alleged unconstitutional c o n d itio n s about which he complains. The law in this circuit is well settled that "supervisory officials are not liable under § 1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior o r vicarious liability." Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir.2003) (internal q u o ta tio n marks and citation omitted). Thus, supervisory defendants are liable only if they p e rs o n a lly participated in the allegedly unconstitutional conduct or if there is "a causal c o n n e ctio n between [their] actions ... and the alleged constitutional deprivation." Id. See also W e s t v. Tillman, 496 F.3d 1321, 1328 (11th Cir.2007). Plaintiff must present sufficient e v id e n c e of either (1) a "custom or policy [that] result[s] in deliberate indifference to c o n stitu tio n a l rights or ... facts [that] support an inference that the supervisor[s] directed the s u b o rd in a te s to act unlawfully or knew that the subordinates would act unlawfully and failed t o stop them from doing so;" or (2) "a history of widespread abuse [that] put[ ] the

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re sp o n sib le supervisor on notice of the need to correct the alleged deprivation, and he fails to do so." Cottone, 326 F.3d at 1360 (internal quotation marks and citations omitted) (second a lte ra tio n in original). "The deprivations that constitute widespread abuse sufficient to notify th e supervising official must be obvious, flagrant, rampant and of continued duration, rather th a n isolated occurrences." Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir.1999) (internal q u o tation marks and citation omitted). P la in tif f does not allege that Commissioner Allen was personally involved in any of th e alleged constitutional deprivations. Moreover, Plaintiff's assertions do not establish the c a u sa l connection necessary to hold Commissioner Allen responsible for Plaintiff's alleged c o n stitu tio n a l deprivations. The court, therefore, concludes that Defendant Allen's motion f o r summary judgment on Plaintiff's constitutional claims is due to be granted. D . Conditions Claim P la in tif f describes a variety of conditions in existence during his confinement at V e n t re s s which he maintains amounted to a violation of his Eighth Amendment rights. V ariou sly these conditions and problems included an inadequate hot water supply, a failure to use bleach in the laundry, unhygienic barber services including failing to sanitize clippers, f a ilin g to use clipper guards, and cutting inmate hair in close proximity to the chow hall, and d is re g a rd of shaving profiles. (Doc. Nos. 1, 2.) Defendants Giles and Longmire deny that Plaintiff was subjected to unconstitutional

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c o n d i tio n s of confinement during his incarceration at Ventress.

According to these

d e f en d a n ts there has never been a problem with hot water in D-Dorm. Defendant Giles sta tes further that D-Dorm does not have mixer valves, 8 and thus, the water temperature is c o n tro lle d simply by adjusting the hot and cold nozzles in the shower. Defendants Giles and L o n g m ire deny that staph is prevalent in D-Dorm. When an inmate is diagnosed with a staph in f e ctio n , the inmate is separated from contact with other inmates until he is no longer c o n ta g io u s . Defendants Giles and Longmire further maintain that the dorms, including f lo o rs , wall, commodes, and sinks are cleaned daily with bleach and disinfectant, that bleach is used to clean all clothes, and that the temperature of the water to clean laundry is in c o m p lian c e with state sanitation standards. All shaving profiles are honored but Defendants G ile s and Longmire indicate that when an inmate's beard is found to be over an eighth of an in c h long he is ordered to get in compliance with the profile.9 Finally, Defendants Giles and L o n g m ire deny that inmate barbers cut hair near the entrance or exit doors to the chow hall d u rin g feeding time. In sum, Defendants Giles and Longmire state that Plaintiff was not

e x p o s e d to either inhumane or unsanitary conditions during his incarceration at Ventress. (D o c . No. 27, Exhs. A, C, E.)

8 Plaintiff asserts in a statement of facts attached to his complaint that a hot water exchanger was replaced in D-Dorm and the mixer valves which keeps the water distributed or "mixed up" were not replaced because of cost considerations. (See Doc. No. 2 at pg. 5.) 9

Plaintiff's shaving profile was for an eighth of an inch. (Doc. No. 28, Exh. A.)

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T h e Constitution proscribes those conditions of confinement which involve the w a n to n and unnecessary infliction of pain. Rhodes v. Chapman, 452 U.S. 337 (1981). There is no "static test" for determining which conditions violate the Constitution. Id. at 346. Whether a violation exists requires a fact intensive determination of what conditions exist a n d whether objectively and subjectively the conditions offend the Constitution by amounting to seriously sufficient deprivations to which officials were deliberately indifferent. See e.g., F a r m e r v. Brennan, 511 U.S. 825 (1994). Only actions which deny inmates "the minimal c iv iliz e d measure of life's necessities," are grave enough to establish constitutional v io la tio n s . Rhodes, 425 U.S. at 347; see also Wilson v. Seiter, 501 U.S. 294 (1991) (ov erc row d in g , without more, does not rise to the level of a constitutional violation). A prison official has a duty under the Eight Amendment to "provide humane c o n d itio n s of confinement; prison officials must ensure that inmates receive adequate food, c lo th in g , shelter, and medical care, and must `take reasonable measures to guarantee the s a f ety of the inmates.'" Farmer, 511 U.S. at 832 (quoting Hudson v. Palmer, 468 U.S. 517, 5 2 6 -2 7 (1984)); Helling v. McKinney, 509 U.S. 25, 33 (1993). In order to demonstrate the o b je c tiv e component of an Eighth Amendment violation with respect to conditions of c o n f in e m e n t, a prisoner must prove that he was denied the "minimal civilized measure of lif e 's necessities." Farmer, 511 U.S. at 832. The challenged prison condition must be " e x tre m e " and must pose "an unreasonable risk of serious damage to his future health."

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C h a n d le r v. Crosby, 379 F.3d 1278, 1289-90 (11 th Cir. 2004). The subjective component re q u ire s a prisoner to prove that the prison official acted with "deliberate indifference" in d i sr e g a rd i n g that risk by showing that an official knew the inmate faced a "substantial risk o f serious harm" and with such knowledge, disregarded that risk by failing to take reasonable m e a s u re s to abate it. Farmer, 511 U.S. at 828, 834, 837. In this case, Plaintiff contends that he was subjected to unconstitutional conditions of c o n f in e m e n t at Ventress. All of the conditions or problems identified by Plaintiff are, u n f o rtu n a te ly, problems of prison life in general, a life which while not comfortable must be h u m a n e . Mathews v. Crosby, 480 F.3d 1265, 1269 (11 th Cir. 2007). Plaintiff has failed to e sta b lis h that the conditions about which he complains caused him serious harm nor can the p ro b le m s he describes be considered "abuses." Moreover, Plaintiff has failed to produce e v id e n c e which shows that the correctional defendants knew of an obvious risk of serious h a rm to him and disregarded that risk, Farmer 511 U.S. at 837, or that their actions resulted in the denial of the minimal civilized measure of life's necessities. Rhodes, 452 U.S. at 347. T h e mere fact that the conditions and problems described by Plaintiff existed is insufficient to demonstrate a constitutional violation. Consequently, Defendants Giles' and Longmire's m o tio n for summary judgment on Plaintiff's claims challenging the conditions of c o n f in e m e n t at Ventress is due to be granted. E . Challenges to Hair Length

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i. The Equal Protection Clam Plaintiff asserts an equal protection violation with respect to the length of hair a llo w e d for male inmates which he complains is shorter than the length of hair allowed for f e m a le inmates. (Doc. No. 2.) Plaintiff's equal protection challenge entitles him to no relief. D is p a ra te hair regulations for male and female inmates have consistently survived equal p r o te c tio n challenges. Hill v. Estelle, 537 F.2d 214, 215-216 (5 th Cir. 1976) (footnotes o m itte d ) (difference in application of hair length and other regulations "based on sex is [not] a constitutional violation of equal protection . . . The regulations impinge on no fundamental rig h t and create no suspect classification. The disparity between the regulations for male and f e m a le inmates is not so grievous as to make them arbitrary or unreasonable, cruel or u n u s u a l, and the wisdom of the disparate regulations will be left to the judgment of [c u stod ial] penologists.");1 0 Longoria v. Dretke, 507 F.3d. 898, 904-904 (5 th Cir. 2007) (equal p ro tec tio n claim based on differing grooming regulations for male and female inmates "is w ith o u t merit."); Diaz v. Collins, 872 F. Supp. 353, 359 (E.D. Tex. 1994) (same); Fegans v. N o rr is, 537 F.3d 897, 906 (8 th Cir. 2008) (different security concerns presented by male and f e m a le inmates provide sufficient basis for disparate hair length rules and such rules did not

The decision issued in Hill is binding precedent for this court. Bonner v. City of Prichard, Ala., 661 F.2 d 1206, 1207 (11th Cir. 1981) ("We hold that the decisions of the United States Court of Appeals for the Fifth Circuit (the `former Fifth' or the `old Fifth'), as that court existed on September 30, 1981, handed down b y that court prior to the close of business on that date, shall be binding as precedent in the Eleventh Circuit, for this court, the district courts, and the bankruptcy courts in the circuit.").

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v io late plaintiff's constitutional right to equal protection); Campbell v. Purkett, 957 F.2d 535, 5 3 7 (8 th Cir. 1992) (grooming regulation forbidding long hair for male inmates survives an eq u al protection challenge because regulation is reasonably related to penological interests); P o llo c k v. Marshall, 845 F.2d 656, 659-660 (6 th Cir. 1988) (hair length restrictions that differ f o r male and female prisoners are legitimate in furthering prison security and do not violate a n inmate's equal protection rights); Dreibelbis v. Marks, 742 F.2d 792, 795-796 (3 rd Cir. 1 9 8 4 ) (differing hair length standards for men and women prisoners not violative of equal p ro te c tio n because the standards "rest[] on real and substantial differences" among men and w o m e n ); McClelland v. Sheriff's Deputy, 2001 WL 34826228 *8-*9 (E.D. Va. 2001) ( d i f f e r in g hair length standards for male and female inmates who inherently pose d is p ro p o rtio n a te security concerns did not violate Equal Protection Clause). Accordingly, D e f en d a n ts Giles and Longmire are entitled to summary judgment on Plaintiff's equal p ro te c tio n claim. ii. First Amendment/RLUIPA P la in t if f argues that the correctional defendants violated his rights under the First A m e n d m e n t and RLUIPA both of which are designed to safeguard the right to practice one's relig ion by limiting the government's ability to interfere with religious expression. In support o f his allegation, Plaintiff asserts that he is an adherent of the Native American religion and th a t the grooming policy enforced at Ventress caused him to violate a particular aspect of

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h is religion and, specifically, that his hair should remain uncut. In support of his claim, P la in tif f complains that he was "scalped" by prison barbers every time he went to the prison c h o w hall on days that popular meals were served which included French fries, hot dogs, f is h , etc. (Doc. No. 34 at pg. 3; see also Doc. No. 2 at pg. 3.) Plaintiff further indicates in h is complaint that inmates without money for the barber had "to put up with this type of cruel tre a tm e n t" which he contends was humiliating when "your wife and/or friend has to see you th i s way." (See Doc. No. 2 at pg. 3; see also Doc. No. 34 at pg. 3.) Congress enacted RLUIPA, in part, to protect inmates and other institutionalized p e rs o n s from substantial burdens in freely practicing their religions. Under the provisions o f 42 U.S.C. § 2000cc-1(a) 2000 N o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person:

(1 ) is in furtherance of a compelling governmental interest; and (2 ) is the least restrictive means of furthering that compelling governmental interest. 4 2 U.S.C. § 2000cc-1(a) (2000). To succeed on a primary RLUIPA claim, a plaintiff must first present a prima facie case. To establish a prima facie case under section 3 of RLUIPA, a plaintiff must d e m o n s tra te 1) that he engaged in a religious exercise; and 2) that the religious 17

e x e rc is e was substantially burdened . . . The plaintiff "bear[s] the burden of p e rs u a sio n on whether the . . . government practice that is challenged by the c la im substantially burdens the exercise of religion." . . . If the plaintiff s u c c ee d s in demonstrating a prima facie case, the government must then d e m o n s tra te that the challenged government action is "is in furtherance of a c o m p e llin g governmental interest" and "is the least restrictive means of f u rth e rin g that compelling governmental interest." . . . In contrast, if the p la in tif f fails to present evidence to support a prima facie case under RLUIPA, th e court need not inquire into whether the governmental interest at stake was c o m p e llin g . S m ith , 502 F.3d at 1276. W ith respect to an inmate's claim brought under the First Amendment, a court is re q u ire d to analyze prison officials' actions in the context of their policies and the standards p ro m u lg a te d in Turner v. Safley, 482 U.S. 78 (1987). A policy is "valid if it is reasonable re la te d to legitimate penological interests." Id., at 89. "[S]uch a standard is necessary if `p riso n administrators . . . , and not the courts [are] to make the difficult judgments c o n c ern in g institutional operations.'" Id. (quoting Jones v. North Carolina Prisoners' U n io n , 433 U.S. 119, 128 (1977)). The court heard oral argument on Plaintiff's challenge to the grooming policy at V e n t re s s which the court understands Plaintiff to claim infringed upon and substantially b u rd e n e d his right to freely practice the Native American religion. Although Plaintiff used th e term "scalped" in his complaint and during oral argument, he further explained during the h ea rin g that his reference to "scalping" meant that inmate barbers at Ventress were e ss e n tia lly permitted by prison authorities to shave inmates' hair very close to the scalp and c lo s e r even than grooming policy required. According to Plaintiff, prison regulations allow 18

a hair length of a half of an inch. W h e n Plaintiff entered the ADOC he filled out forms and provided, among other things, personal information which included listing "Christianity" as his religious preference. A t a later unspecified time, Plaintiff states he modified his religious preference by listing " N a tiv e American/Christian," but concedes that at no time during his incarceration at V e n tre ss did he specifically communicate to prison officials or inmate barbers that he was a n adherent of the Native American religion. Plaintiff agues, however, that prison officials sh o u ld have known he practiced the Native American faith because he received packages in th e mail which contained articles relevant to the Native American religion and because he a tte n d e d activities on the Native American ceremonial grounds at Ventress. While the court does not question the sincerity of Plaintiff's religious beliefs, his claim u n d e r both the First Amendment and RLUIPA fails for a fundamental reason; he has not c o m e forward with any evidence showing that the correctional defendants violated his rights. P la in tif f complains that he was forced to cut his hair against his religious beliefs. The c o rre c tio n a l defendants concede that Plaintiff was directed to keep his hair cut in accordance w ith the ADOC's grooming policy1 1 but they offer a simple and persuasive explanation for d o in g so; Plaintiff failed to identify himself to them as an adherent of the Native American r e lig i o n . Further, Plaintiff never mentioned this fact to anyone, including the inmate barbers,

The prison regulation regarding personal appearance directs that male inmates' hair be neat, wellgroomed, and with sideburns no longer than the middle ear. (Doc. No. 44, Exh. 1.)

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w h e n he was ordered to have his hair cut nor did he complain about or grieve the matter to p ris o n officials. Plaintiff did not provide prison officials with sufficient information or awareness a b o u t his religious beliefs before filing this complaint. To keep his religious beliefs c o n f id e n tia l but at the same time initiate a complaint for failing to receive a special ac co m m o d atio n for those beliefs while in jail is not tenable. Plaintiff may have a sincere re lig io u s belief that his hair should not be cut but he clearly did not communicate such belief to correctional personnel. If the grooming policy at Ventress incidentally affected his ability to exercise his religious belief of which the correctional defendants were unaware, such u n in te n tio n a l interference with his religious exercise does not amount to actionable conduct in this § 1983 action. Unless the correctional defendants took action to impede Plaintiff's e x e rc is e of his religious beliefs - and it is undisputed that they did not knowingly do so - they c o u ld not have violated his rights under the free exercise clause or RLUIPA. For these r e a so n s , the correctional defendants' motion for summary judgment on Plaintiff's First A m e n d m e n t and RLUIPA claims is due to be granted.1 2
12 Given the court's disposition of Plaintiff's challenge to the ADOC's grooming policy regarding male inmate hair length, Defendants' contention that Plaintiff's religious beliefs would still not entitle him to an exemption from the requirements of the grooming policy due to various legitimate policy considerations is not before the court for resolution. Nonetheless, in the face of identical challenges made pursuant to the Free Exercise Clause of the First Amendment, correctional grooming policies have repeatedly been upheld by federal courts, including the Eleventh Circuit Court of Appeals, as reasonably related to legitimate penological interests of maintaining security and promoting cleanliness. See e.g., Harris v. Chapman, 97 F.3d 499, 504 (11th Cir. 1996) (upholding a prison hair length regulation under the First Amendment and even more rigorous least restrictive means standard because correctional officials "have a compelling interest in security and order" and the challenged regulation constituted "least restrictive means" of satisfying these interests); Martinelli v. Dugger, 817 F.2d 1499, 1506-1507

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iii. Cruel and Unusual Punishment. To the extent Plaintiff asserts a claim that having his hair cut subjected him to cruel an d unusual punishment, he is entitled to no relief. The undisputed evidence before the court sh o w s that the ADOC has policies and regulations regarding grooming and appearance, in p a rt, because of safety and security concerns. (See Doc. Nos. 40, 44.) "[T]he legitimate

g o v e rn m e n t interest in the order and security of penal institutions justifies the imposition of c e rta in restraints." Procunier, 416 U.S. at 412-413. Enforcement of a valid security

re g u la tio n is not punishment for the purposes of an inmate's right to due process. See S o lo m o n v. Zant, 888 F.2d 1579, 1582 (11th Cir. 1989). Although Plaintiff complains that b eing subjected to having his hair cut "humiliated" him in front of relatives and friends, there i s no evidence before the court that it resulted in the unnecessary and wanton infliction of

(11th Cir. 1987), abrogated on other grounds Harris, 97 F.3d 499 (prison hair length rule virtually identical to rule addressed in Harris upheld as constitutional because rule was least restrictive means of advancing substantial government interests in maintaining prison security and identifying escapees); Shabazz v. Barnauskus, 790 F.2d 1536, 1540 (11th Cir.), (affirming decision of district court that regulation prohibiting beards on inmates "serve[s] a legitimate penological interest in preventing escape" and constitutes the least restrictive alternative available); Longoria v. Dretke, 507 F.3d 898, 901 (5th Cir. 2007) (grooming policy which prohibited male inmates from growing long hair not violative of the Free Exercise Clause); Gooden v. Crain, 389 F. Supp.2d 722, 725 (E. D. Tex. 2005) ("[A]ny challenge to the prison system's grooming policy based on the Free Exercise Clause is frivolous."); Green v. Polunsky, 229 F.3d 486 (5th Cir. 2000) (prison grooming policy requiring inmates to keep their hair cut short and faces clean shaven reasonably related to legitimate penological interests and therefore did not deprive inmate free expression of religion under the First Amendment); Hamilton v. Schriro, 74 F.3d 1545, 1551 (8th Cir. 1996) (hair length regulation did not violate Native American prisoner's constitutionally guaranteed right to free exercise of religion); Campbell v. Purkett, 957 F.2d 535, 537 (8th Cir. 1992) (finding prison hair length rule applicable to follower of Nazarite religion constitutional); Iron Eyes v. Henry, 907 F.2d 810, 814-816 (8th Cir. 1990) (prison regulation prohibiting hair longer than base of shirt collar did not run afoul of the Free Exercise Clause as regulation was reasonably related to legitimate penological interests).

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p a in prohibited by the Eighth Amendment. Wilson v. Seiter, 501 U.S. 294, 297 (1991); F a r m e r, 511 U.S. at 834; Whitley v. Albers, 475 U.S. 312, 319 (1976). Defendants Longmire a n d Giles are, therefore, entitled to summary judgment on this challenge to the grooming p o l i c y. F . Failure to Comply with Regulations T h e court considers Plaintiff's complaint to contain an argument that Defendants G ile s and Longmire violated their own rules and regulations by allowing the cutting of in m a te hair in close proximity to the chow hall and by allowing inmate hair to be cut shorter th a n required by the prison regulations. While a violation of a state or federally-created lib e rty interest can amount to a violation of the Constitution, not every violation of state or f e d e ra l law or state or federally-mandated procedures is a violation of the Constitution. See B u c k le y v. Barlow, 997 F.2d 494 (8 th Cir. 1993); Shango v. Jurich, 681 F.2d 1091 (7 th Cir. 1 9 8 2 ); Brown v. Dodson, 863 F. Supp. 284 (W.D. Va. 1994). Likewise, not every deviation f ro m an agency's rules violates of the Constitution. Smith v. State of Georgia, 684 F.2d 729 (1 1 th Cir. 1982); see also Harris v. Birmingham Board of Education, 817 F.2d 1525 (11 th Cir. 1 98 7). Here, Plaintiff's claim regarding prison officials' failure to follow and/or enforce their o w n prison regulations does not state a claim of constitutional magnitude. Sandin v. Conner, 5 1 5 U.S. 472 (1995); see also Murray v. Mississippi Dept. of Corrections, 911 F.2d 1167, 1 1 6 8 (5 th Cir. 1990); Baker v. McCollan, 433 U.S. 137, 146 (1979). G . The Claims Against the Medical Defendants

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P lain tiff challenges the constitutionality of medical treatment provided to him while a t Ventress for sores on his face and back which he complains turned to staph infections. In response to this complaint, the medical defendants deny Plaintiff's allegation and likewise m a in t a in that his complaint against them is subject to dismissal because he failed to exhaust a n administrative remedy available to him at Ventress which is a mandatory precondition to f ilin g this cause of action. (Doc. No. 28, Exhs. A, C); Woodford v. Ngo, 548 U.S. 81, 126 S .C t. 2378 (2006). The Prison Litigation Reform Act compels exhaustion of available administrative re m e d ies before a prisoner can seek relief in federal court on a § 1983 complaint. S p e c if ica lly, 42 U.S.C. § 1997e(a) states that "[n]o action shall be brought with respect to p ris o n conditions under section 1983 of this title, or any other Federal law, by a prisoner c o n f in e d in any jail, prison, or other correctional facility until such administrative remedies a s are available are exhausted." "Congress has provided in § 1997(e)(a) that an inmate must e x h a u st irrespective of the forms of relief sought and offered through administrative r e m e d i e s." Booth v. Churner, 532 U.S. 731, 741 n.6 (2001). "[T]he PLRA's exhaustion re q u ire m e n t applies to all inmate suits about prison life, whether they involve general c irc u m s ta n c es or particular episodes, and whether they allege excessive force or some other w rong." Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion of all available

a d m in is tra tiv e remedies is a precondition to litigation and a federal court cannot waive the e x h a u s tio n requirement. Booth, 532 U.S. at 741; Alexander v. Hawk, 159 F.3d 1321, 1325

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( 1 1 th Cir. 1998); Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378 (2006). Moreover, "the P L R A exhaustion requirement requires proper exhaustion." Woodford, 548 U.S. at 93, 126 S .C t. at 2387 (emphasis added). "Proper exhaustion demands compliance with an agency's d e a d lin e s and other critical procedural rules [as a precondition to filing suit in federal court] b e c a u se no adjudicative system can function effectively without imposing some orderly s tru c tu re on the courts of its proceedings.... Construing § 1997e(a) to require proper e x h a u stio n ... fits with the general scheme of the PLRA, whereas [a contrary] interpretation [ a llo w in g an inmate to bring suit in federal court once administrative remedies are no longer a v a ila b le ] would turn that provision into a largely useless appendage." 548 U.S. at 90-91, 9 3 , 126 S.Ct. at 2386-2387. The Court reasoned that because proper exhaustion of

ad m inistrat iv e remedies is necessary an inmate cannot "satisfy the Prison Litigation Reform A c t's exhaustion requirement ... by filing an untimely or otherwise procedurally defective a d m in i str a tiv e grievance or appeal[,]" or by effectively bypassing the administrative process s im p ly by waiting until the grievance procedure is no longer available to him. 548 U.S. at 8 3 -8 4 , 126 S.Ct. at 2382; Johnson v. Meadows, 418 F.3d 1152, 1157 (11th Cir. 2005) (inmate w h o files an untimely grievance or simply spurns the administrative process until it is no lo n g e r available fails to satisfy the exhaustion requirement of the PLRA). The record in this case is undisputed that the health care provider for the Alabama D e p a rtm e n t of Corrections at the time of Plaintiff's incarceration provided a grievance p ro c e d u re for inmate complaints related to the provision of medical treatment. (Doc. No. 28,

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E x h . C.) The evidentiary materials submitted by the medical defendants demonstrate that P la in tif f failed to file the requisite grievance with respect to the actions about which he c o m p la in s in the instant complaint. (Id. and Exh. A.) Plaintiff does not dispute his failure to e x h a u s t the administrative remedy available in the prison system prior to filing this case. The court, therefore, concludes that the claims presented in this cause of action are subject to dismissal as Plaintiff failed to properly exhaust an administrative remedy available to him w h ic h is a precondition to proceeding in this court on his claims. Ngo, 548 U.S. at 87-94. P la in tif f is no longer incarcerated at Ventress. Thus, the administrative remedy p ro v id e d by the medical defendants at that facility is no longer available to Plaintiff. Under s u c h circumstances, dismissal with prejudice is appropriate. Bryant, 530 F.3d at 1375 n.1; J o h n so n , 418 F.3d at 1157; Marsh v. Jones, 53 F.3d 707, 710 (5th Cir. 1995) ("Without the p ro s p e c t of a dismissal with prejudice, a prisoner could evade the exhaustion requirement by f ilin g no administrative grievance or by intentionally filing an untimely one, thereby f o re c lo s in g administrative remedies and gaining access to a federal forum without exhausting a d m in istra tiv e remedies."); Berry v. Keirk, 366 F.3d 85, 88 (2nd Cir. 2004) (footnotes o m itte d ) (Inmate's "federal lawsuits . . . properly dismissed with prejudice" where previously a v a ila b le administrative remedies had become unavailable and no special circumstances ju s tif ie d the failure to exhaust.). III. CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that:

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1 . Defendants Allen, Giles, and Longmier's motion for summary judgment (Doc. Nos. 2 7 , 40) be GRANTED; 2 . Plaintiff's complaint against Defendants Allen, Giles, and Longmire be D IS M IS S E D with prejudice; 3 . Defendants PHS, Inc., and Liebe's motion for summary judgment (Doc. No. 28) b e GRANTED to the extent they seek dismissal of this case due to Plaintiff's failure to p r o p e r ly exhaust administrative remedies previously available to him at the Ventress C o rre c tio n a l Facility; 4. The complaint against Defendants PHS, Inc., and Liebe be DISMISSED with p re ju d ice in accordance with the provisions of 42 U.S.C. § 1997e(a) for Plaintiff's failure to e x h a u s t administrative remedies available to him during his confinement at the Ventress C o rre c tio n a l Facility; and 5 . Judgement be ENTERED in favor of Defendants and against Plaintiff. It is further ORDERED that on or before December 4, 2009 the parties may file objections to the R e c o m m e n d a tio n . Any objections filed must specifically identify the findings in the M a g is tra te Judge's Recommendation to which a party objects. Frivolous, conclusive or g e n e ra l objections will not be considered by the District Court. The parties are advised that th is Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and advisements in the

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M a g is tra te Judge's Recommendation shall bar the party from a de novo determination by the D is tric t Court of issues covered in the Recommendation and shall bar the party from a tta c k in g on appeal factual findings in the Recommendation accepted or adopted by the D is tric t Court except upon the grounds of plain error or manifest injustice. Nettles v. W a in w r ig h t, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en b a n c ), adopting as binding precedent all of the decisions of the former Fifth Circuit handed d o w n prior to the close of business on September 30, 1981. D o n e , this 19th day of November 2009.

/ s /T e r r y F. Moorer TERRY F. MOORER U N IT E D STATES MAGISTRATE JUDGE

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