Mayo v. Bentley et al (INMATE 2)

Filing 80

ORDER WITHDRAWING 79 REPORT AND RECOMMENDATION of the Magistrate Judge; REPORT AND RECOMMENDATION of the Magistrate Judge that: (1) the defendants' motion to dismiss be GRANTED; (2) judgment be GRANTED in favor of the defendants; (3) this case be DISMISSED without prejudice; (4) the costs of this proceeding be taxed against the plaintiff Objections to R&R due by 9/17/2014. Signed by Honorable Judge Susan Russ Walker on 9/3/14. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
DAVID LEE MAYO,
#241618,
Plaintiff,
v.
ANTHONY ASKEW;
WARDEN HEITZEL, and
MR. ANGLIN,
Defendants.

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CASE NO. 2:11-CV-392-MHT
[WO]

ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE
For good cause, it is
ORDERED that the recommendation previously entered in this case (Doc. # 79) be
and hereby is WITHDRAWN, and the following recommendation is entered as the
recommendation of the court.
I. INTRODUCTION
This case is before the court on a 42 U.S.C. § 1983 complaint filed by David Lee
Mayo (“Mayo”), an indigent state inmate currently incarcerated at the Easterling Correctional
Facility (“Easterling”). Mayo alleges that he follows the Native American religion, and he
claims: (1) defendants refused to allow him to use tobacco for smoking in the ceremonial
pipe, and refused to allow him to use tobacco in sacred prayer ties hung in the Tree of Life;
(2) defendants allow racist gangs to desecrate the Native American grounds; and (3)

defendants refuse to provide an environment where the sweat lodge can be used appropriately
or to transfer him to an institution with a functioning sweat lodge and tobacco use, in
violation of his rights under the First Amendment, Eighth Amendment, Fourteenth
Amendment, Alabama Constitution, and Alabama Department of Corrections (“ADOC”)
Policy No. 333. Compl. - Doc. No. 7 at 2-4, Amended Compl. - Doc. Nos. 21-22. Mayo
names as defendants1 Chaplain Anthony Askew, Warden Heitzel, and Chaplain Mr. Anglin,
who all work at Easterling. He seeks injunctive relief and monetary damages for the alleged
violations.2 Doc. No. 7 at 4.
The defendants filed an answer, special report, supplement to the special report, and
supporting evidentiary materials addressing Mayo’s claims for relief. Docs. Nos. 27, 28, 37.
Defendants argue that Mayo’s claims are without merit, they are entitled to immunity, Mayo
fails to show any injury, and Mayo failed to exhaust his available administrative remedies
before filing suit, as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. §
1997e.

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Mayo originally named Richard Allen, Gwendolyn Mosley, Louis Boyd, Kenneth Sconyers,
Gwendolyn Babers, Steven Walker, Robert Bentley, and Kim Thomas as defendants. Mayo did not
name Allen or Walker as defendants in the amended complaint, therefore they are no longer part of
the case. Doc. No. 7. The court dismissed Mosley, Boyd, Sconyers, Babers, Bentley, and Thomas
pursuant to 28 U.S.C. § 1915e(
2)(B)(ii). Doc. No. 32.
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Specifically, Mayo asks for fees and costs, and he seeks $5,000 from each defendant “due
to personal bias and extreme prejudice. Total of $45,000 to each practitioner and to transfer each
practitioner to a camp that allows the use of tobacco and that has a functioning sweat lodge.” Doc.
No. 7 at 4.
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Pursuant to the orders entered in this case and governing case law, the court deems
it appropriate to treat the defendants’ report and supplemental report as a motion to dismiss.
Doc. No. 38; Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir. 2008) (“(A)n exhaustion
defense--as in (this) case--is not ordinarily the proper subject for a summary judgment;
instead, it ‘should be raised in a motion to dismiss, or be treated as such if raised in a motion
for summary judgment.’”) (citations omitted). Thus, this case is now pending on the
defendants’ motion to dismiss, and plaintiff’s opposition to it. Doc. Nos. 27, 28, 37, 40, 41,
58, 60. Upon consideration of this motion, the evidentiary materials filed in support thereof
and the plaintiff's response, the court concludes that the defendants’ motion to dismiss is due
to be granted.
II. STANDARD OF REVIEW
"When deciding whether a prisoner has exhausted his remedies, the court should first
consider the plaintiff's and the defendants' versions of the facts, and if they conflict, take the
plaintiff's version of the facts as true. 'If in that light, the defendant is entitled to have the
complaint dismissed for failure to exhaust administrative remedies, it must be dismissed.'
Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008) (citing Bryant, 530 F.3d at
1373-74). If the complaint is not subject to dismissal at this step, then the court should make
'specific findings in order to resolve the disputed factual issues related to exhaustion.' Id.
(citing Bryant, 530 F.3d at 1373-74, 1376)." Myles v. Miami-Dade County Correctional and
Rehabilitation Dept., 476 F. App’x 364, 366 (11th Cir. 2012). Defendants bear the burden
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of proof during this second step. Turner, 541 F.3d at 1082.
III. DISCUSSION
In their motion to dismiss, defendants assert that Mayo’s claims are due to be
dismissed as premature because he failed to exhaust his available administrative remedies
as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). Defs.’ Report - Doc.
No. 28 at 13-14, Defs.’s Supp. Report - Doc. No. 37. Specifically, defendants maintain that
Mayo never filed a Request for Religious Assistance as provided in Alabama Department of
Corrections (“ADOC”) Administrative Regulation 313 (“AR 313”). Summers July 27, 2011,
Aff. - Doc. No. 28-3 at 2; Defs.’ Ex. 10 - Doc. No. 28-10 at 2; Ex. 1 to Summers Aug. 25,
2011, Aff. - Doc. No. 37-1 at 4-6. As explained, federal law directs this court to treat
defendants’ response as a motion to dismiss for failure to exhaust an administrative remedy
and allows the court to look beyond the pleadings to relevant evidentiary materials in
deciding the issue of proper exhaustion. Bryant, 530 F.3d at 1375.
A. Exhaustion Principles
The PLRA requires exhaustion of available administrative remedies before a prisoner
can seek relief in federal court on a 42 U.S.C. § 1983 complaint. Specifically, 42 U.S.C. §
1997e(a) directs that “(n)o action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison,
or other correctional facility until such administrative remedies as are available are
exhausted.” “Congress has provided in § 1997e(a) that an inmate must exhaust irrespective
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of the forms of relief sought and offered through administrative remedies.” Booth v.
Churner, 532 U.S. 731, 741 n.6 (2001). “(T)he PLRA’s exhaustion requirement applies to
all inmate suits about prison life, whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle,
534 U.S. 516, 532 (2002). Exhaustion of all available administrative remedies is a
precondition to litigation and a federal court cannot waive the exhaustion requirement.
Booth, 532 U.S. at 741; Alexander v. Hawk, 159 F.3d 1321, 1325 (11th Cir. 1998); Woodford
v. Ngo, 548 U.S. 81, 93 (2006). Moreover, “the PLRA exhaustion requirement requires
proper exhaustion.” Id. (emphasis added).
The Supreme Court in Woodford determined “(proper exhaustion) means . . . that a
prisoner must complete the administrative review process in accordance with the applicable
procedural rules, including deadlines, as a precondition to bringing suit in federal court.” Id.
at 88. The Court further explained “(p)roper exhaustion demands compliance with an
agency’s deadlines and other critical procedural rules (prior to seeking relief from a federal
court) because no adjudicative system can function effectively without imposing some
orderly structure on the courts of its proceedings . . . Construing § 1997e(a) to require proper
exhaustion also fits with the general scheme of the PLRA, whereas (a contrary) interpretation
(allowing an inmate to bring suit in federal court once administrative remedies are no longer
available) would turn that provision into a largely useless appendage.” Id. at 91-93. This
interpretation of the PLRA’s exhaustion requirement “carries a sanction” for noncompliance
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and avoids “mak(ing) the PLRA exhaustion scheme wholly ineffective.” Id. at 95.
Consequently, a prisoner cannot “proceed . . . to federal court” after bypassing available
administrative remedies, either by failing to exhaust administrative remedies properly or
waiting until such remedies are no longer available, as allowing federal review under these
circumstances would impose “no significant sanction” on the prisoner and “the PLRA did
not create such a toothless scheme.” Id. Further, the PLRA’s exhaustion requirement
contains no futility exception where there is an available inmate grievance procedure. See
Booth, 532 U.S. at 741 n.6 (“(W)e will not read futility or other exceptions into statutory
exhaustion requirements where Congress has provided otherwise.”); Cox v. Mayer, 332 F.3d
422, 424-28 (6th Cir. 2003) (holding that the exhaustion requirement applies to a former
prisoner who filed his complaint without exhausting his administrative remedies and who had
since been released from custody); see also Massey v. Helman, 196 F.3d 727, 733 (7th Cir.
1999). “The only facts pertinent to determining whether a prisoner has satisfied the PLRA’s
exhaustion requirement are those that existed when he filed his original complaint.” Smith
v. Terry, 491 F. App’x 81, 83 (11th Cir. 2012) (per curiam). Even where an inmate litigant
“attempt(s) to amend or supplement his original complaint” regarding efforts at subsequent
exhaustion, it does “not change the important historical fact: his administrative remedies
were unexhausted when he filed his original complaint. Therefore, he cannot cure the
exhaustion defect.” Id.
B. Exhaustion of Religious Assistance Remedies
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The ADOC adopted policies and regulations concerning religious programming for
inmates. Administrative Regulation 333 (“AR 333") on Religious Program Services
approves certain practices and items for Native American inmates, including among other
things, the location of ceremonial grounds, prayer pipes, and the herbs “Sage, Sweetgrass,
Cedar, Kinnikinick, and Tobacco.” Defs.’ Ex. 9 - Doc. No. 28-9 at 13 (AR 333 § V(E)(12)).
Although tobacco is listed as a permitted item in AR 333, tobacco is prohibited by the ADOC
at Easterling. Prison staff instead allow Native American inmates at Easterling to purchase
any of the other four herbs for use. Summers July 17, 2011, Aff - Doc. No. 28-1 at 1-2.
AR 313 on Chaplain Services and Religious Activities provides in relevant part:
An inmate . . . whose religious needs cannot be met within the framework of
non-denominational, non-sectarian religious service may submit a written
request to the Chaplain . . . for assistance. It should be the Chaplain’s
responsibility to investigate the inmate’s request for religious assistance and
determine an appropriate course of action, in conjunction with the Warden or
Director if it impacts or has the capacity to impact upon security. The
Religious Activities Review Committee has final approval on such matters. .
. . It is the inmate’s responsibility to provide an authoritative source of
information by which the Chaplain may verify the existence of the religion and
determine beliefs and practices.
Defs.’ Report Ex. 10 - Doc. No. 28-10 at 2 (AR 313 § III(B)(1)-(2)). The regulation does not
identify specific deadlines for processing applications. Id. AR 313 provides that religious
objects or practices “may be restricted or prohibited when they are considered to be a
compromise to the security, safety, health or good order of the institution . . . .” Id. at 6 (AR
313 § III(K)(1)). AR 313 also provides a means for resolving disputes about religious

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matters, and states, in relevant part, “When the Chaplain is unable to resolve a religious
dispute, inmates shall use the inmate grievance procedure for resolution of disputes regarding
approval or restriction on religious practices or articles.” Id. (AR 313 § III(L)).
According to Christopher H. Summers, a Chaplain at Holman Correctional Facility,
in order to satisfy the religious dispute resolution requirement in AR313, an inmate files a
Request for Religious Assistance pursuant to AR 313 (“AR 313 Application”). Summers Aff.
- Doc. No. 28-3 at 2. The AR 313 Application consists of a page for the inmate to describe
the religious practice and source for it, “documented evidence ... provided to the
Chaplain/Warden to support the request,” a separate page for the “Chaplain’s
Recommendation,” and a third page for the “Warden’s Recommendation” and the “Decision
of the Religious Activities Review Committee.” Defs.’ Supp. Report - Doc. No. 37-1 at 4-6.
Summers avers that AR 313 is available to all inmates, and the Chaplain can also provide the
information to inmates. Summers Aff. at 2 - Doc. No. 37-1. He states the AR 313 Application
is available from the Chaplain upon request from an inmate. Id. at 2. Summers further
indicates that there is no time frame within which inmates must complete the AR 313
Application, and there is no appeal process beyond the AR 313 Application; if the inmate is
unsatisfied with the result of the process, he may resubmit the “request with new sources to
strengthen the validity of the request for further consideration.” Id. at 2-3.
The court granted Mayo an opportunity to respond to the exhaustion defense raised
by the defendants in their motion to dismiss. Doc. No. 29, 38. In response, Mayo does not
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deny that section 1997e requires him to exhaust available administrative remedies. He states
that he repeatedly asked Chaplain Askew for tobacco for ceremonial use, but Askew refused.
Mayo Aff. - Doc. No. 40 at 3. In addition to requesting transfers from Anglin and Askew,
Mayo states that he sent several request slips to Warden Boyd and Warden Hetzel concerning
the alleged constitutional violations of his religious rights, and Mayo received no response.
Id. at 4. Mayo does not dispute that he never submitted an AR 313 Application before filing
suit in this case. He instead responds that the chaplain does not know how to go about the
procedure or will not help Mayo, and the inmate grievance procedure has been discontinued
for years at Easterling. Pl.’s Resp. - Doc. No. 41 at 4; Mayo Aff. - Doc. No. 41-1 at 1. Mayo
nevertheless submitted an affidavit stating that after this lawsuit was filed, on September 20,
2011, he asked for a Religious Assistance form, but Askew refused to give it to Mayo,
instead saying he would get one sent to Mayo at a later date. Mayo Aff. - Doc. No. 41-1 at
1. Mayo does not indicate that he ever followed up on his post-lawsuit request for a
Religious Assistance form. Mayo also states that he tried to see Hetzel, but Hetzel would not
see Mayo. Id. Although Mayo’s and defendants’ allegations conflict, Mayo’s allegations
that the grievance system was discontinued and the chaplain does not know the procedure
are assumed to be true for the purposes of this recommendation. See Turner, 541 F.3d at
1082.
The court turns to the second Turner step where defendants bear the burden of
establishing lack of exhaustion. Defendant Larry Anglin, a Classification Specialist,
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interviewed Mayo a few days after Mayo arrived at Easterling on May 11, 2011. Anglin Aff. Doc. No. 28-8 at 1. According to Anglin, Mayo said he wanted to be transferred to an
institution where he could smoke, and Anglin responded that Mayo needed to stay at
Easterling for at least six months. Id. Mayo then told Anglin he could not practice his
Native American religion at Easterling. Anglin responded that he should talk to the Chaplain
about his religious practices because Anglin was not an expert on religious practices. Id.
Anglin told Mayo that if the Chaplain provided written documentation that Easterling could
not accommodate his religious practices, then Anglin would initiate a transfer to another
institution that could accommodate them. Id.
Mayo asked Defendant Chaplain Askew for clarification of AR 333 regarding tobacco
use. Askew Aff. - Doc. No. 28-6 at 1. Mayo believes that AR 333 § V(E)(12), which permits
tobacco for Native Americans’ religious use, creates a liberty interest for Native American
inmates to have tobacco for religious use at Easterling. He states that Askew laughed at him
when he showed him AR 333 § V(E)(12), and said nothing would ever come of lawsuits
about the issue. Compl.- Doc. No. 7 at 3. Askew informed Mayo that because Easterling is
a tobacco-free facility, no tobacco is allowed for staff or inmates, but Mayo could use
kinnikinnick, a tobacco-free herb, in ceremonies. Askew Aff. - Doc. No. 28-6 at 2. Mayo
asked Askew to write Anglin, informing Anglin that Mayo could not practice his faith at
Easterling and requesting that Mayo be transferred. Id. Askew declined and informed Mayo
that the classification department handles transfers.
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Anglin avers that a few days after his conversation with Mayo in May 2011, Askew
called Anglin and said that Easterling could accommodate Mayo’s religious practices.
Anglin Aff. - Doc. No. 28-8 at 1. Mayo wrote another request slip to Anglin, asking for a
transfer because Easterling could not accommodate his religious practices. Anglin responded
to Mayo that it was a religious matter, not a classification matter, and Mayo would not be
transferred unless one of Anglin’s superior’s directed him to transfer Mayo. Id.
As explained, Mayo submitted an affidavit in response to defendants’ exhaustion
defense, stating that the chaplain does not know how to go about the correct administrative
procedure or will not help Mayo. Mayo Aff. - Doc. No. 41-1. Mayo further argues that the
grievance process was discontinued. Pl.’s Resp. - Doc. No. 41 at 4. Nevertheless, Mayo
avers, after this suit was filed, Mayo asked for a Religious Assistance form. He avers he was
denied a form but was told he would receive one later, and he does not state whether he ever
received one or followed up in any way on his post-lawsuit request for a Religious Assistance
form. Mayo Aff. - Doc. No. 41-1. Plaintiff’s own statements are in conflict. Mayo does not
dispute that he never submitted an AR 313 Application before filing suit in this case. The
court, therefore, finds that an administrative remedy system is available at the institution for
Mayo’s claims, but he failed to exhaust his administrative remedies before filing suit. The
evidentiary materials submitted by defendants demonstrate that Mayo did not pursue and
therefore failed to exhaust properly the administrative process with respect to the religious
requests about which he complains in this case prior to filing this lawsuit. As noted,
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exhaustion of available remedies applies to all prisoners in any facility, it is mandatory, and
it may not be waived by the court. See Alexander, 159 F.3d at 1324-26 (exhaustion
requirement of 42 U.S.C. § 1997e(a) is mandatory, whether the claim is brought pursuant to
§ 1983 or Bivens); see also Porter, 534 U.S. at 532. Furthermore, this court may not consider
the adequacy or futility of administrative remedies, but only the availability of such.
Higginbottom v Carter, 223 F.3d 1259, 1261 (11th Cir. 2000) (citing Alexander, 159 F.3d at
1323). To demonstrate that administrative remedies were unavailable, Mayo must provide
specific facts which indicate that prison staff inhibited him from using the grievance process.
See Boyd v. Corr. Corp. Of Am., 380 F.3d 989, 998 (6th Cir. 2004) (“nonspecific allegations
of fear” and “subjective feeling(s) of futility” no excuse for failure to exhaust administrative
remedies). Mayo states that he received no response to his letters and request slips to prison
officials seeking a transfer or permission to use tobacco, and that he was refused an AR 313
Application after this lawsuit was filed. However, he does not dispute that he failed to file
an AR 313 Application or pursue the administrative remedies in AR 313 before filing this
lawsuit, and he also does not state that staff inhibited him from submitting an AR 313
Application before filing suit. Based on the foregoing, the court concludes that Mayo’s
allegations against defendants regarding religious assistance and practices presented in this
cause of action are subject to dismissal as he failed to exhaust an administrative remedy
available to him which is required before he may proceed in this court on his claims.

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Woodford, 548 U.S. at 87-94; see Turner, 541 F.3d at 1082-83.3
IV. CONCLUSION
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that:
1. The defendants’ motion to dismiss be GRANTED.
2. Judgment be GRANTED in favor of the defendants.
3. This case be DISMISSED without prejudice.
4. The costs of this proceeding be taxed against the plaintiff.

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Even if the court were to consider the merits of Mayo’s claims, defendants would be entitled
to summary judgment on them. See Fed. R. Civ. P. 56(a) (“The court shall grant summary

judgment 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.”). To the extent that Mayo sues the
defendants in their official capacities, they are immune from monetary damages. See Carr
v. City of Florence, 916 F.2d 1521, 1525 (11th Cir. 1990) (Alabama has not waived its
Eleventh Amendment immunity, and Congress has not abrogated Alabama’s immunity). The
court further takes judicial notice that the court previously addressed and rejected nearly
identical claims by Native American inmates at Easterling regarding tobacco use, interruption
of ceremonies, timing of fires, and the sweat lodge. See Adams v. Mosley, No. 2:05-cv-352MHT, 2008 WL 4369246, at *1, 4-5, 8-13 (M.D. Ala. Sept. 25, 2008) (adopting
recommendation by the Honorable Charles S. Coody); see also Coleman v. Allen, 2:09-cv311-TMH, 2012 WL 4350945 (M.D. Ala. Sept. 24, 2012) (adopting recommendation by the
Honorable Susan Russ Walker, 2012 WL 4378086 (M.D. Ala. Sept. 7, 2012). As for the claim
that white gangs are allowed on ceremonial grounds, the undisputed record is that any gang activity
would be defused, and inmates who are not approved to be on the Native American grounds would
be dispersed and appropriately disciplined. Summers Aff. - Doc. No. 28-3 at 3-4; Hetzel Aff. - Doc.
No. 28-4 at 1. Defendant Askew avers, and Mayo does not dispute, that Askew did not desecrate
plaintiff’s religious property or mock plaintiff. Doc. No. 28-6 at 2. Finally, given the early dismissal
of all of Mayo’s federal claims, in the interest of judicial economy, convenience, fairness, and comity
the court should decline to exercise supplemental jurisdiction over the state law claims. See 28
U.S.C. § 1367(c)(3); Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 (1988) (“when
the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims
remain,() the federal court should decline the exercise of jurisdiction by dismissing the case without
prejudice”) (footnote omitted).
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It is further
ORDERED that on or before September 16, 2014, the parties may file objections to
this Recommendation. Any objections filed must clearly identify the findings in the
Magistrate Judge’s Recommendation to which the party is objecting. Frivolous, conclusive
or general objections will not be considered by the District Court. The parties are advised
that this Recommendation is not a final order of the court and, therefore, it is not appealable.
Failure to file written objections to the proposed findings and advisements in the
Magistrate Judge’s Recommendation shall bar the party from a de novo determination by the
District Court of issues covered in the Recommendation and shall bar the party from
attacking on appeal factual findings in the Recommendation accepted or adopted by the
District Court except upon grounds of plain error or manifest injustice.

Nettles v.

Wainwright, 677 F.2d 404 (5th Cir. 1982); see Stein v. Reynolds Securities, Inc., 667 F.2d 33
(11th Cir. 1982); see also Bonner, 661 F.2d at 1209 (adopting pre-October 1, 1981 opinions
of the Fifth Circuit as binding precedent).
DONE, this 3rd day of September, 2014.

/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE

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