Jones v. Johnson et al

Filing 36

ORDER granting 26 Motion for Summary Judgment. Signed by Judge Dominic J. Squatrito on 5/8/17. (Glynn, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

DASHANTE JONES,
Plaintiff,
v.
CAPTAIN JOHNSON, WARDEN ERFE,
ANN CORNOYER, A.R.C. MOSES,
CAPTAIN MORINELLI
Defendants.

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CASE NO. 3:15-cv-1135 (DJS)

RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
The plaintiff, Dashante Jones, commenced this civil rights action against correctional
officials at Cheshire Correctional Institution (“Cheshire”) and Northern Correctional Institution
(“Northern”). He contends that he was denied religious services while confined in the
Administrative Segregation Program in violation of his First and Fourteenth Amendment rights.
The defendants have filed a motion for summary judgment. Although informed of his obligation
to respond to the motion, the plaintiff has not filed a memorandum in opposition to the motion
for summary judgment. For the reasons that follow, the defendants’ motion is granted.
I.

Standard of Review
A motion for summary judgment may be granted only where there is no genuine dispute

as to any material fact and the moving party is entitled to judgment as a matter of law. Rule
56(a), Fed. R. Civ. P.; In re Dana Corp., 574 F.3d 129, 151 (2d Cir. 2009). The moving party
may satisfy his burden “by showing—that is pointing out to the district court—that there is an
absence of evidence to support the nonmoving party’s case.” PepsiCo, Inc. v. Coca-Cola Co.,
315 F.3d 101, 105 (2d Cir. 2002) (per curiam) (internal quotation marks and citations omitted).
Once the moving party meets this burden, the nonmoving party must set forth specific facts
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showing that there is a genuine issue for trial. Wright v. Goord, 554 F.3d 255, 266 (2d Cir.
2009). He must present such evidence as would allow a jury to find in his favor to defeat the
motion for summary judgment. Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).
The nonmoving party “must offer some hard evidence showing that its version of the events is
not wholly fanciful.” D’Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998).
II.

Facts1
The plaintiff was first admitted to the custody of the Department of Correction in August

1998. Since then, he has been discharged and readmitted several times and transferred among
correctional facilities on multiple occasions. On some occasions after readmission or transfer,
the plaintiff received inmate orientation. The orientation procedures sometimes included
information on inmate grievance procedures. At each orientation session, the plaintiff received
an inmate handbook which included information about inmate grievance procedures.
On May 23, 2014, after being charged with assault on Department of Correction staff, the
plaintiff was transferred to Northern and placed in Administrative Segregation, a program for
inmates with behavioral problems posing a threat to the safety and security of other inmates and
staff who cannot safely be managed in the general population. The program has three phases.
Phase I is at Northern, while Phases II and III are at Cheshire. Inmates progress through the

The facts are taken from the defendants’ Local Rule 56(a) Statements and supporting exhibits.
Local Rule 56(a)2 requires the party opposing summary judgment to submit a Local Rule 56(a)2
Statement which contains separately numbered paragraphs corresponding to the Local Rule 56(a)1
Statement and indicates whether the opposing party admits or denies the facts set forth by the moving
party. Each denial must include a citation to an affidavit or other admissible evidence. In addition, the
opposing party must submit a list of disputed factual issues. D. Conn. L. Civ. R. 56(a)2 and 56(a)3.
Although the defendants informed the plaintiff of this requirement, ECF No. 26-11, he has not submitted
a Local Rule 56(a)2 Statement. Accordingly, the defendants’ properly supported facts are deemed
admitted. See D. Conn. L. Civ. R. 56(a)1 (“All material facts set forth in said statement and supported by
the evidence will be deemed admitted unless controverted by the statement required to be filed and served
by the opposing party in accordance with Rule 56(a)2.”).
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phase program based on their individual behavior and participation in required classes and
groups.
For safety and security reasons, inmates in Phase I are not given access to programs
offered in the general population. Communal religious services is one such program. Instead, at
least once a week, each Phase I inmate is offered personal visits by a chaplain of his faith for
religious services. Muslim, Jewish, Catholic, Protestant and Native American chaplains are
available.
Department of Correction clinical staff offer a program called “Start Now” to inmates in
Phase I of Administrative Segregation. The program consists of 34 sessions. Only three inmates
may participate in the program at any time because, during the program, the inmates are confined
individually in booths and only three booths are available. Inmates do not participate in this
program in a communal setting for safety and security reasons. The booths are located in the
visiting area of the prison. The plaintiff did not utilize the booths in connection with the “Start
Now” program, but did utilize them for “Prison Rape Elimination Act” training.
The booths are not used for communal religious services. Brian Jackson, the
administrative captain at Northern, explained that “it would be administratively and operationally
difficult, if not impossible, to offer regular religious services to all A/S Phase I inmates with just
three booths.” Defs.’ Mem. Ex. C, ECF No. 26-5, ¶ 5. There are usually between 20 and 25
inmates in Phase I. The inmates have different faiths and, therefore, different chaplains. The
booths can accommodate the Start Now program because there are only a few inmates at any
time beginning Phase I. Other inmates are progressing through the program or graduating to
Phase II. Using the booths for religious services would be impractical because of the multiple
faiths present in the Phase I population and the availability of chaplains to conduct the multiple

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services.
As an alternative, Muslim inmates in Phase I have access to personal visits from a
Muslim chaplain at least once a week and are allowed to retain possession of a copy of the
Quran, a Kufi and a prayer rug. They can pray in their cells and order additional religious
reading materials. In addition, they are provided with an alternate diet that conforms to their
religious dietary requirements and accommodations are made to meal schedules during Muslim
feast and fast days.
On January 6, 2015, the plaintiff was transferred to Cheshire to begin Phase II of the
Administrative Segregation Program. Phases II and III are a continuation of the program begun
at Northern. Because inmates in Phase II have been identified as having behavioral problems
that constitute a threat to institutional safety and security and are not able to be safely managed
in the general population, the inmates again are not provided the same programs offered to
general population inmates, including communal religious services. As in Phase I, Phase II and
III inmates are offered personal visits with a chaplain of their faith at least once per week, have
access to religious materials, and can pray in their cells.
Upon admission to Phase II, an inmate is assigned to a small group of 3-4 inmates and
remains with that group through Phase III. The inmates in the group have all started the program
at approximately the same time and advance through the program together. Group assignment is
not based on religion, so multiple religions are represented in any group. Currently, there are 4-6
groups.
In Phase II, each small group attends an anger management program twice per week.
The program is conducted by a counselor. In Phase III, a recreation supervisor conducts group
social activities for each small group about twice per week. These activities are held in a small

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room in the Administrative Segregation block. The room, about 14’ by 16’, cannot safely house
more than four inmates and a staff member at one time. The small groups also attend outdoor
recreation together.
The Muslim faith requires members to pray five times per day, including at the noon
hour. During this time on Fridays, Muslims pray in a congregate service called Jummah. The
Jummah mandate is waived for Administrative Segregation inmates because they cannot attend
the congregate service. Instead, these inmates can fulfill this prayer obligation by praying on
their own. Defs.’ Mem. Ex. E, ECF No. 26-7, ¶ 6 & Ex. G, ECF No. 26-9, ¶ 4.
While the plaintiff was confined at Northern, from May 2014 until January 2015, he filed
seven grievances. In none of the grievances did the plaintiff complain that he was denied
congregate religious services in Phase I or address any other aspect of the Phase I program. The
plaintiff was housed in Phases II and III at Cheshire from January through June 2015. On May
11, 2015, the plaintiff filed a grievance complaining that he was wrongfully denied “Friday
Jumah [sic].” He stated that attendance is mandatory for Muslims and that Islamic services
should be provided in the “Block.” Defs.’ Mem. Ex. I, ECF No.27 at 15. The grievance was
denied initially and on appeal. The plaintiff filed a second grievance on May 15, 2015, in which
he claimed that the denial of congregate services violated his Eighth Amendment rights. Id.,
ECF No. 27 at 18. This grievance was rejected as repetitive.
III.

Discussion
The defendants move for summary judgment on the grounds that the plaintiff failed to

exhaust his administrative remedies with regard to all claims for denial of religious services at
Northern and claims for total denial of religious services at Cheshire, and fails to show that the
defendants violated his First or Fourteenth Amendment rights by denying congregate services.

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A.

Exhaustion of Administrative Remedies

The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), imposes a requirement that
inmates exhaust their administrative remedies before filing an action in federal court concerning
any aspect of prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002). Section 1997e requires
exhaustion of any available administrative remedies, regardless of whether they provide the
relief the inmate seeks. See Booth v. Churner, 532 U.S. 731, 734 (2001). A claim is not
exhausted until the inmate complies with all administrative deadlines and procedures. See
Woodford v. Ngo, 548 U.S. 81, 90 (2006). Informal efforts to put prison officials on notice of
inmate concerns do not satisfy the exhaustion requirement. See Macias v. Zenk, 495 F.3d 37, 43
(2d Cir. 2007). If the deadline to file a grievance about an issue has passed, claims concerning
that issue are unexhausted and barred from federal court. See Woodford, 548 U.S. at 94-95. In
addition, the inmate must exhaust his administrative remedies for each claim he asserts in federal
court. See Baldwin v. Arnone, No. 3:12cv243 (JCH), 2013 WL 628660, at *5 (D. Conn. Feb. 18,
2013).
An inmate may be excused from the exhaustion requirement only if administrative
remedies were not in fact available. Ross v. Blake, 136 S. Ct. 1850, 1858 (2016). The Supreme
Court has identified three circumstances where an administrative remedy, although officially
available, cannot be used by inmates to obtain relief. First, the administrative remedy may
operate as a “dead end” where the office to which inmates are directed to submit all grievances
disclaims the ability to consider them. Id. at 1859. Second, the procedures may be so confusing
that no ordinary prisoner could be expected to “discern or navigate” the requirements. Id. And
third, prison officials may “thwart inmates from taking advantage of a grievance process through

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machination, misrepresentation, or intimidation.” Id. at 1860. Courts require inmates to take
advantage of each step of an administrative appeal procedure in order to exhaust their
administrative remedies. See, e.g., Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001)
(“[G]rievances must now be fully pursued prior to filing a complaint in federal court.”).
An inmate in a Connecticut state correctional facility who wishes to file a grievance must
follow the procedure set forth in Department of Correction Administrative Directive 9.6. See
Defs.’ Mem. Ex. K, ECF No. 27-2. Under the Directive, full administrative review occurs in
steps. First, an inmate must seek to resolve his complaint informally by depositing an Inmate
Request Form (CN 9601) in a designated collection box. If the inmate is dissatisfied with the
response to his Inmate Request Form or does not receive a response within fifteen days, the
inmate may proceed to the second step, which is termed “Level 1 Review.” To initiate Level 1
Review, an inmate completes the Inmate Administrative Remedy Form (CN 9602). At this
point, the inmate is required to provide evidence that he attempted to informally resolve his
grievance by attaching the Inmate Request Form (CN 9601) to the CN 9602. Id. at 9.6(6)(C).
The inmate also has the option of submitting the CN 9602 without attaching a CN 9601 and
providing a “valid reason” why he could not obtain the CN 9601form. Id. Level 1 Review must
be filed within thirty calendar days from the occurrence or discovery of the cause of the
grievance. Id. Level 1 Review is undertaken by the Unit Administrator, who must respond to
the grievance in writing within thirty days. Id. at 9.6(6)(I). An inmate may proceed to the third
step, Level 2 Review, within five calendar days of receipt of the Unit Administrator’s decision.
Id. at. 9.6(6)(K). Generally, Level 2 Review takes place before a District Administrator. The
Administrator’s response, which must be delivered in writing within 30 business days of the
receipt of the appeal, must include a statement saying whether the grievance was upheld or

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compromised or was denied or rejected.2 Id. Level 3 appeals are restricted to challenges to
Department of Correction policy or the integrity of the grievance procedure and to appeals of
Level 2 grievances to which the District Administrator has failed to respond in a timely manner.
Id. at 9.6(6)(L).
The defendants have provided evidence that during the time the plaintiff was confined at
Northern he filed seven grievances, none of which addressed a denial of religious services. The
plaintiff has filed no contrary evidence. The plaintiff did file grievances regarding congregate
religious services when he was confined at Cheshire. In the May 15, 2015 grievance he
references both Northern and Cheshire. However, this grievance was filed much too late to be
considered a proper grievance regarding Northern. Grievances must be filed with thirty days of
the occurrence. The plaintiff was transferred to Cheshire on January 6, 2015, and did not file this
grievance for over five months. To exhaust his claims regarding Northern, the plaintiff was
required to comply with all deadlines. See Woodford, 548 U.S. at 90. Thus, referencing
Northern in this grievance did not serve to exhaust claims regarding lack of congregate services
at Northern. The court concludes that the plaintiff has failed to exhaust his administrative
remedies as to his claims involving his confinement at Northern. Consequently, the defendants’
motion for summary judgment is granted as to the plaintiff’s claims that he was denied religious
services at Northern.
Finally, the defendants note that, in his deposition, the plaintiff stated that he was denied
all religious services at Cheshire. See Defs.’ Mem. Ex B, ECF No. 26-4 at 47. In his complaint
and in the grievances he filed at Cheshire, the plaintiff references only the denial of congregate
religious services. The defendants correctly state that the plaintiff has exhausted his institutional
“Any grievance which does not meet the criteria specified in Sections 5(E) (6 and 7) and 6 (A
through C) of this Directive may be rejected.” ECF No. 27-2 at 9.6(6)(F).
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remedies only with regard to a claim of denial of congregate services. Accordingly, to the extent
that the plaintiff is attempting to expand his claim, he has not exhausted his institutional
remedies. The defendants’ motion for summary judgment is granted at to any claim for denial of
all religious services at Cheshire. See Turner v. Goord, 376 F. Supp. 2d 321, 325 (W.D.N.Y.
2005) (internal quotation marks omitted) (permitting an inmate to litigate claims that were never
presented to prison authorities through administrative grievances would “make a mockery of the
exhaustion requirement”).
The Court next considers the merits of the plaintiff’s only exhausted claim, the denial of
congregate religious services at Cheshire.
B.

First Amendment Right to Freely Exercise Religion

Inmates have a First Amendment right to participate in congregate religious services. See
Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993). However, that right is not absolute.
See id. Prison officials may restrict an inmate’s right to freely exercise his religion if the
restriction is “reasonable.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987). To state a
free exercise claim, a prisoner must initially establish “that the disputed conduct substantially
burdens his sincerely held religious beliefs.” Salahuddin v. Goord, 467 F.3d 263, 274-75 (2d
Cir. 2006). Once he does that, the burden shifts to the defendants to identify legitimate
penological interests to justify the restriction on the prisoner’s right to freely exercise his
religion. Id. at 275. Although the burden shifts to the defendants, the plaintiff remains
responsible for establishing that the penological interests identified by the defendants are
irrational or illegitimate. Id. The Court must then determine whether the challenged decision or
regulation is reasonable. The Court does this by considering the four factors set forth in Turner
v. Safley, 482 U.S. 78, 90-91 (1987). Those factors are:

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whether the challenged regulation or official action has a valid,
rational connection to a legitimate governmental objective;
whether prisoners have alternate means of exercising the burdened
right; the impact on guards, inmates, and prison resources of
accommodating the right; and the existence of alternative means of
facilitating exercise of the right that have only a de minimis
adverse effect on valid penological interests.
Salahuddin, 467 F.3d at 274.
For purposes of their motion for summary judgment, the defendants appear to assume
that the plaintiff has a sincerely held religions belief that he is required to attend congregate
services. With regard to the first Turner factor, the defendants identify institutional safety and
security as their legitimate governmental objective. They provide evidence that an inmate is sent
to the Administrative Segregation Program because he has been identified as having behavioral
problems which pose a threat to the safety and security of other inmates and staff and cannot
safely be managed in the general population. As a result, even in Phases II and III the inmates
are restricted to small groups of about four inmates who are at the same stage of the program. At
no time are they permitted to gather with inmates at different stages of the program.
The defendants provided affidavits from two imams stating that a Muslim inmate is not
required to attend the weekly congregate service if he is unable to attend because he is in the
Administrative Segregation Program. Instead, he can satisfy his religious obligation by praying
in his cell. The plaintiff has access to all articles needed to do so and can obtain additional
religious materials and meet privately with an imam at least once a week. Thus, the plaintiff has
alternate means to exercise his religion.
The defendants also provide evidence that accommodating the plaintiff’s right would be
burdensome. Jummah services are held during the noon hour on Fridays. There is only one
imam at Cheshire, who already conducts two Jummah services to accommodate the general

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population inmates. He cannot conduct any more services. In addition, the number of additional
services would be burdensome. For safety and security reasons, Phase II and III inmates are not
permitted to associate with prisoners who are not in their small groups, so conducting one service
for all Administrative Segregation inmates at Cheshire would not be possible. Group
assignments are not based on religion, so a separate service would be required for each group
including a Muslim inmate. This could entail an additional 4-6 services, all of which would have
to be conducted during the noon hour along with the two current services. The defendants
further argue that if congregate services were provided for Muslim Administrative Segregation
inmates, comparable services would have to be provided for inmates of all other faiths, requiring
many more chaplains and significant financial resources. There are no ready alternatives to
accommodate the right to congregate services and satisfy the legitimate penological objective of
institutional safety and security.
The defendants have presented evidence satisfying the Turner factors. The plaintiff has
not opposed the motion and thus has presented no evidence calling any of the defendants’
evidence into question. The Court concludes that the defendants’ actions were reasonable. The
defendants’ motion for summary judgment is granted at to the First Amendment free exercise
claim. See In re Long Term Administrative Segregation of Inmates Designated as Five
Percenters, 174 F.3d 464, 470-71 (4th Cir. 1999) (upholding denial of all congregate religious
services for segregated inmates where other forms of religious exercise were available).
C. Fourteenth Amendment Right to Equal Protection of the Laws
The Equal Protection Clause protects prisoners from invidious discrimination. This
provision does not mandate identical treatment for each individual; rather it requires that
similarly situated persons be treated the same. See City of Cleburne v. Cleburne Living Center,

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Inc., 473 U.S. 432, 439 (1985). Accordingly, to state an equal protection claim, the plaintiff
must initially allege facts showing that he is a member of a group that was treated differently
compared to other similarly situated individuals. See Fahs Construction Group, Inc. v. Gray, 725
F.3d 289, 291 (2d Cir. 2013). The plaintiff also could assert an equal protection claim based on a
“class of one” theory. To state a valid claim, the plaintiff must allege first that he was
intentionally treated differently from others who are similarly situated. Second, he must allege
facts showing that there is no rational basis for the difference in treatment. Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000). He must allege an “extremely high” level of
similarity with the person to whom he is comparing himself; their circumstances must be “prima
facie identical.” Neilson v. D’Angelis, 409 F.3d 100, 104 (2d Cir. 2005), overruled in part on
other grounds by Appel v. Spiridon, 531 F.3d 138, 139 (2d Cir. 2008).
Although the plaintiff contends that the defendants denied him equal protection, he does
not identify any similarly situated inmates who were treated differently, i.e., he identifies no
Administrative Segregation Phase II or Phase III inmate who was provided congregate religious
services. Absent such allegations, the plaintiff cannot state a cognizable equal protection claim
under either theory. The defendants’ motion for summary judgment is granted as to the
Fourteenth Amendment claim.
IV.

Conclusion
The defendants’ motion for summary judgment [ECF No. 26] is GRANTED. The Clerk

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is directed to enter judgment in favor of the defendants and close this case.

Signed this

8th

day of May, 2017 at Hartford, Connecticut.

______/s/ DJS______________________________
Dominic J. Squatrito
United States District Judge

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