Davila v. Marshall et al

Filing 97

ORDER granting in part and denying in part Defendant's 73 Motion for Summary Judgment. Plaintiff's RLUIPA claims are dismissed. Plaintiff's Complaint is Dismissed, with prejudice. The Clerk of Court is directed to enter the appropriate judgment of dismissal. Signed by Magistrate Judge James E. Graham on 1/20/2015. (csr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

ANTHONY DAVILA,
Plaintiff,
:

V.

CIVIL ACTION NO.: CVII2-149

LOGAN MARSHALL, Sheriff, and
CHRISTOPHER DURDEN, Captain,
Defendants.

ORDER
Plaintiff, who is currently incarcerated at the Federal Correctional Institution in
Jesup, Georgia ("FCI Jesup"), filed a cause of action pursuant to 42 U.S.C. § 1983 and
the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc-

1, et seq. ("RLUIPA"), contesting certain conditions of his confinement while he was
housed at the McDuffie County Detention Center in Thomson, Georgia. Defendants
filed a Motion for Summary Judgment, to which Plaintiff initially failed to file a Response.
The undersigned granted Defendants' Motion as unopposed by Order dated September
2, 2014. Plaintiff filed a Motion for Relief and asserted that he never received the
Clerk's Notice that Defendants had filed a Motion for Summary Judgment. The
undersigned granted Plaintiff's Motion and vacated the September 2, 2014, Order.

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Plaintiff has filed a Response to Defendants' Motion for Summary Judgment. Based on
the reasons which follow, Defendants' Motion is GRANTED in part and DENIED in part.
STATEMENT OF THE CASE
Plaintiff contends that Defendants Marshal and Durden did not allow him to have
Santeria bead necklaces or his bible.' Plaintiff asserts that these items are necessary
to the practice of his religion. Plaintiff also asserts that inmates who are of other faiths
are allowed to have their religious items.
Defendants assert that Plaintiff failed to exhaust his administrative remedies prior
to the filing of this cause of action. Defendants allege that Plaintiff's injunctive relief
claim is moot, as he has been transferred to another penal institution. Defendants also
allege that Plaintiff's remaining claims for nominal damages are without merit. Finally,
Defendants allege that they are entitled to qualified immunity.
DISCUSSION AND CITATION TO AUTHORITY
I.

Exhaustion of administrative remedies
A.

Standard of review

The determination of whether an inmate exhausted his available administrative
remedies prior to filing a cause of action in federal court is a matter of abatement and
should be raised in a motion to dismiss, or treated as such if raised in a motion for
summary judgment. Duble v. FedEx Ground Package System, Inc., - F. App'x -,
No. 13-12749, 2014 WL 3631905, at *3 (11th Cir. July 14, 2014) (citing Bryant v. Rich,
530 F.3d 1368, 1374-75 (11th Cir. 2008)). "Even though a failure-to-exhaust defense is
non-jurisdictional, it is like" a jurisdictional defense because such a determination
1

Defendants are correct that Plaintiff does not bring an allegation against them based on the denial of a
cowrie shell necklace in this case. The insertion of such an allegation was due to a scrivener's error and
is omitted in this Order.
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"ordinarily does not deal with the merits" of a particular cause of action. Bryant, 530
F.3d at 1374 (internal punctuation and citation omitted). A judge "may resolve factual
questions" in instances where exhaustion of administrative remedies is a defense
before the court. Id.
B.

Discussion

Where Congress explicitly mandates, prisoners seeking relief for alleged
constitutional violations must first exhaust inmate grievance procedures before filing suit
in federal court. See Porter v. Nussle, 534 U.S. 516, 524 (2002). 42 U.S.C. § 1997e(a)
states, "No action shall be brought with respect to prison conditions under section 1983
of this title, or any other Federal law . . . until such administrative remedies as are
available are exhausted." In Porter, the United States Supreme Court held that
exhaustion of available administrative remedies is mandatory. Porter, 534 U.S. at 523.
The Supreme Court has noted exhaustion must be "proper." Woodford v. Nc:io, 541
U.S. 81, 92 (2006). "Proper exhaustion demands compliance with an agency's
deadlines and other critical procedural rules because no adjudicative system can
function effectively without imposing some orderly structure on the course of its
proceedings." Id. at 90-91. In other words, an institution's requirements define what is
considered exhaustion. Jones v. Bock, 549 U.S. 199, 218 (2007).
In Turner v. Burnside, 541 F.3d 1097 (11th Cir. 2008), the Eleventh Circuit
clarified how the lower courts are to examine the issue of exhaustion of administrative
remedies. First, the court is to take the plaintiffs version of the facts regarding
exhaustion as true. Id. at 1082. If, even under the plaintiffs version of the facts, plaintiff
has not exhausted, the complaint must be dismissed. Id. However, if the parties'

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conflicting facts leave a dispute as to whether plaintiff has exhausted, the court need not
accept all of plaintiffs facts as true. Id. Rather, "the court then proceeds to make
specific findings in order to resolve the disputed factual issues[.]" Id. "Once the court
makes findings on the disputed issues of fact, it then decides whether under those
findings the prisoner has exhausted his available administrative remedies." Id. at 1083.
The grievance procedure for the McDuffie County Detention Center provides:
Any inmate shall be entitled to communicate legitimate complaints.
Grievances will be in writing.
Grievances may be given to any staff member for prompt transmittal. All
grievances must fully describe the factual basis and circumstances of the
alleged incident or situation and include a specific complaint and signed
by the staff member when picked up.
(Doc. No. 73-3, p. 7). The jail administrator is to make available a grievance form to all
inmates on request. The jail administrator responds to the grievance in writing. The jail
administrator's decision "may be appealed to the Sheriff within seventy-two (72) hours
of the receipt of the grievance decision." (Doc. No. 73-3, p. 13).
Defendants assert that Plaintiff failed to exhaust his administrative remedies
under the grievance procedure which was in place at the McDuffie County Detention
Center, even though Plaintiff received "clear notice" of the procedure. (Doc. No. 73-5,
p. 7). Defendant Durden, who served as the jail administrator and records custodian
during the time Plaintiff was housed at McDuffie County Detention Center, declares that
his review of Plaintiffs inmate file showed that Plaintiff failed to file any grievance from
the first day he was housed at McDuffie County Detention Center until the date he filed
this cause of action on October 3, 2012. (Doc. No. 73-3, p. 4, 112). Defendant Durden
states that all inmate grievance and grievance appeal forms which an inmate filed are

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kept in that inmate's file. (Id.). Defendant Durden also declares that a copy of the
Inmate Handbook, which includes the grievance procedure, is posted in plain view to all
inmates and is in the inmates' living quarters. Defendant Durden further declares that
inmates are typically given a copy of this handbook during the booking process. (t at
p. 3 ,1[ 9 ).
In contrast, Plaintiff declares under penalty of perjury that he was not given an
administrative remedies procedures manual while he was housed at McDuffie County
Detention Center, nor were there any postings at the Detention Center announcing an
inmate's right to grieve. (Doc. No. 95, p. 67). Plaintiff also declares that he had no
means to exhaust his administrative remedies. (Id. at p. 40). Plaintiff asserts in his
Complaint that he was never provided with an administrative remedies procedure
manual and there was nothing posted about a grievance procedure at McDuffie County
Detention Center. Plaintiff also asserts that he asked officials for a grievance form but
was not provided with one. (Doc. No. 1, p. 3)•2 Plaintiff notes that he was provided with
a manual, but this occurred on April 20, 2013, which was after he filed a complaint with
the Office of the Inspector General regarding the living conditions at the Detention
Center. (Doc. No. 95, p. 9).
The evidence before the Court reveals genuine disputes as to whether Plaintiff
received notice of the grievance procedure in place at McDuffie Detention Center prior
to the filing of this cause of action, whether the grievance procedure was posted at the

2

The undersigned notes Plaintiffs submission of the declarations of Brian Bell and Bryant Webb. While
Belt and Webb state that they were detained at the McDuffie County Detention Center prior to being
incarcerated at FCI Jesup, Bell and Webb discuss time periods which are inapplicable to the events
giving rise to Plaintiffs Complaint. Bell and Webb were not housed at the MeDuffie County Detention
Center at the time Plaintiff arrived at McDuffie in May 2012 and when he filed this Complaint in October
2012, based on their declarations. (Doc. No. 95, pp. 32, 34). Bell's and Webb's declarations are of no
evidentiary value.

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Detention Center, and whether Plaintiff asked for a grievance form and was denied.
Thus, the grievance procedure may not have been available to Plaintiff. This portion of
Defendants' Motion is denied.
II.

Summary judgment
A.

Standard of review

Summary judgment "shall" be granted if "the movant[s] show[ ] that there is no
genuine dispute as to any material fact and that the movant[s are] entitled to judgment
as a matter of law." FED. R. Civ. P. 56(a). "A dispute about a material fact is genuine
and summary judgment is inappropriate if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party. However, there must exist a conflict in
substantial evidence to pose a jury question." Hall v. Suniov Indus. Grp., Inc., 764 F.
Supp. 2d 1297, 1301 (M.D. Fla. 2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242 (1986), and (Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1045 (11th
Cir. 1989)).
The moving parties bear the burden of establishing that there is no genuine
dispute as to any material fact and that they are entitled to judgment as a matter of law.
See Williamson Oil Co., Inc. v. Philip Morris USA, 346 F.3d 1287, 1298 (11th Cir. 2003).
Specifically, the moving parties must identify the portions of the record which establish
that there are no "genuine dispute[s] as to any material fact and the movant[s are]
entitled to judgment as a matter of law." Moton v. Cowart, 631 F.3d 1337, 1341 (11th
Cir. 2011). When the nonmoving party would have the burden of proof at trial, the
moving parties may discharge their burden by showing that the record lacks evidence to
support the nonmoving party's case or that the nonmoving party would be unable to

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prove his case at trial. See id. (citing Celotex v. Catrett, 477 U.S. 317, 322-23 (1986)).
In determining whether a summary judgment motion should be granted, a court must
view the record and all reasonable inferences that can be drawn from the record in a
light most favorable to the nonmoving party. Peek-A-Boo Lounge of Bradenton. Inc. v.
Manatee Cnty., Fla., 630 F. 3d 1346, 1353 (11th Cir. 2011).
B.

Injunctive relief

Defendants contend that Plaintiffs injunctive relief claims are moot because he
has been transferred to another facility. Under Article Ill of the Constitution, federal
courts may only hear "cases or controversies." Luian v. Defenders of Wildlife, 504 U.S.
555, 559-60 (1992). "A [claim] is moot when it no longer presents a live controversy
with respect to which the court can give meaningful relief." See Ethrede v. Hail, 996
F.2d 1173, 1175 (11th Cir. 1993). A claim can still be considered if a court lacks
"assurance that there is no reasonable expectation that the alleged violation will recur,"
or, as it is commonly stated, the situation is "capable of repetition, yet evading review[.]"
DiMaio v. Democratic Nat'l Committee, 555 F.3d 1343, 1345 (11th Cir. 2009); Turner v.
Rogers, - U.S. , 131 S. Ct. 2507, 2515 (June 20, 2011). "However, once a
prisoner has been transferred, injunctive relief with respect to his confinement at his
former place of incarceration is no longer available." Hampton v. Federal Correctional
Institution, No. 1:09-CV-00854-RWS, 2009 WL 1703221, *3 (N.D. Ga. June 18, 2009)
(citing McKinnon v. Talladega Cnty., 745 F.2d 1360, 1363 (11th Cir. 1984)); Hailey v.
Kaiser, 201 F.3d 447, *3 (10th Cir. 1999) (Table).
Plaintiff was being detained at the McDuffie County Detention Center while
awaiting trial in federal court on federal charges. Plaintiff has been convicted in federal

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court and is incarcerated at FCI Jesup. It appears that Plaintiff will not return to the
McDuffie County Detention Center prior to his release from federal custody in
September 2017. (Doc. No. 73-5, p. 6); http://www.bp .gov/inmateloc, last accessed on
Jan. 14, 2015. Thus, Plaintiffs claims for injunctive relief are moot. This portion of
Defendants' Motion is granted. Accordingly, Plaintiff's RLUIPA claims are dismissed.
(Doc. Nos. 49, 52) (dismissing Plaintiff's monetary damages claims pursuant to
RLUIPA, thus leaving Plaintiff's injunctive relief claims pursuant to this Act pending after
Defendants filed a motion to dismiss). 3
C.

Qualified immunity 4

Qualified immunity protects government officials performing discretionary
functions from suit in their individual capacities, so long as their conduct does not violate
"clearly established statutory or constitutional rights of which a reasonable person would
have known." Gonzalez v. Reno, 325 F. 3d 1228, 1232 (11th Cir. 2003) (quoting Hope
v. Pelzer, 536 U.S. 730, 739 (2002)). Government officials must first prove that they
were acting within their discretionary authority. Id. at 1233; Ray v. Foltz, 370 F.3d
1079, 1081-82 (11th Cir. 2004). "A government official acts within his or her
discretionary authority if objective circumstances compel the conclusion that challenged
actions occurred in the performance of the official's duties and within the scope of this

Ronnie Williamson, the Chief Deputy at the McDuffie County Sheriff's Office, declared that the McDuffie
County Sheriffs Office received no federal financial assistance in 2012 or 2013 in connection with the
operation or maintenance of the McDuffie Detention Center or for any programs as the Detention Center.
(Doc. No. 61-1, p. 1). Plaintiff offers no evidence to refute this declaration. Because there is no genuine
dispute as to any fact material to Plaintiff's RLUIPA claims, his RLUIPA claims are dismissed for this
reason, as well
Defendants mention that Plaintiff appears to hold them liable based on their supervisory positions, which
he cannot do in a section 1983 cause of action. (Doc. No. 73-5, p. 3). However, Defendants fail to make
any legal argument in this regard, and the undersigned will not address any putative respondeat superior
assertions.

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authority." Hill v. DeKaIb Req'l Youth Detention Ctr., 40 F.3d 1176, 1185 n. 17 (11th
Cir.1994). Once the government official has shown he was acting within his
discretionary authority, the burden shifts to the Plaintiff to show that the Defendant is not
entitled to qualified immunity. The Supreme Court has established a two-part test to
determine the applicability of qualified immunity: the court must determine whether
plaintiff's allegations, if true, establish a constitutional violation, and whether the right
was clearly established." Saucier v. Katz, 533 U.S. 194, 201 (2001); Holloman ex rel.
Holloman v. Harland, 370 F. 3d 1252, 1264 (11th Cir. 2004).
1.

First amendment claims

Defendants assert that the First Amendment does not require that jail officials
must allow inmates to wear jewelry and does not necessarily require the provision of all
reading materials, particularly those which are written in a language other than English.
Defendants allege that the ban on inmate jewelry, including necklaces, is related to
inmate and staff safety. Defendants also allege that Plaintiff received an exception to
this general rule and was allowed to have one (1) bead necklace. Defendants contend
that banning additional necklaces placed no more than a de minimis burden on
Plaintiffs religious exercise. Defendants contend that, after Plaintiff filed this cause of
action, Defendant Durden provided Plaintiff with the particular book he wanted.
Defendants allege that, to the extent this book was withheld from Plaintiff, it was done
by someone other than Defendants, and there was no reason for officials to know the
content of this book because it was written in Spanish. Defendant Durden states that
he understands very few Spanish words. (Doc. No. 73-3, p. 2).
In Pearson v. Callahan, 555 U.S. 223, 236 (2009), the Supreme Court held that courts can exercise
discretion in deciding which of the two Saucier prongs should be addressed first in light of the particular
case at hand.
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Plaintiff contends that Defendants completely ignored his claim that it is a
sincerely held belief that he must wear his beads and that his failure to wear the beads
is believed to result in "life altering adverse consequences." (Doc. No. 95, p. 5). Plaintiff
asserts that Defendants' characterization of the beads as jewelry is inaccurate. Plaintiff
also asserts that adherents of the Santeria religion believe that a person must wear
beads of certain color combinations to protect that person from danger and evil. Plaintiff
alleges that Defendants' actions placed a substantial burden on his sincerely held
religious belief. Plaintiff also alleges that he should have been allowed to have his bible
because Spanish-speaking inmates are allowed to have possession of their Christian
bibles written in Spanish. Plaintiff avers that there were no alternative means for him to
adhere to his religious beliefs other than by wearing more than one bead necklace or
color. Plaintiff concedes that the prevention of inmate fights and the creation of a black
market in the jail are legitimate governmental interests in not allowing inmates to wear
jewelry, but these reasons do not apply because his bead necklaces are not jewelry.
Plaintiff contends that Defendants' response was exaggerated in light of the facts before
this Court.
The Free Exercise Clause of the First Amendment 'requires government respect
for, and noninterference with, the religious beliefs and practices of our Nation's people."
Cutter v. Wilkinson, 544 U.S. 709, 719 (2005). Prisoners retain their First Amendment
rights, including rights under the free exercise of religion clause; however, "lawful
incarceration brings about the necessary withdrawal or limitation of many privileges and
rights, a retraction justified by the considerations underlying our penal system."
Brunskill v. Boyd, 141 F. App'x 771, 774 (11th Cii. 2005) (quoting O'Lone v. Estate of

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Shabazz, 482 U.S. 342, 348 (1987)). Deference is given to prison officials, and, as a
result, courts employ a "reasonableness" test to determine whether a regulation
infringes constitutional rights. Id. The Supreme Court has outlined four factors to be
considered in determining the reasonableness of a regulation: (1) "whether the
regulation has a valid, rational connection to a legitimate governmental interest;" (2)
"whether alternative means are open to inmates to exercise the asserted right;" (3)
"what impact an accommodation of the right would have on guards and inmates and
prison resources;" and (4) "whether there are ready alternatives to the regulation."
Turner, 482 U.S. at 89-91. The fourth factor asks whether "a prisoner has pointed to
some obvious regulatory alternative that fully accommodates the asserted right while
not imposing more than a de minimis cost to the valid penological goal." Overton v.
Bazzetta, 539 U.S. 126,136 (2003).
Defendant Durden avers that there are policies and procedures in place which
govern the items inmates are allowed to possess, and these policies and procedures
"are designed to provide for the safety and security of inmates, officers, other workers at
the Jail, visitors to the Jail[,] and the general public." (Doc. No. 61-2, p. 1). Defendant
Durden asserts that inmates are prohibited from possessing jewelry, as inmates may
steal or fight over jewelry, jewelry can be used as a form of currency, and some pieces
of jewelry can be used to harm other inmates or staff. (Ld. at p. 2). Defendant Durden
declares that it is also a time-consuming task for officers to monitor inmates who have
jewelry, so the prohibition against its possession allows the officers to focus on other
tasks. (j.). Defendant Durden also declares that Plaintiff was allowed to keep one

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bead necklace and was given his bible after review and discussion as accommodations
for his religious desires. (li; Doc. No. 73-3, p. 2).
Plaintiff admits that he was given his bible and one bead necklace after he filed
this cause of action. (Doc. No. 95, p. 30). However, Plaintiff declares that Defendant
Durden told him he would have to research whether Plaintiff should have any more than
the one bead necklace, yet Defendant Durden did not get back to him. (Id.).
For qualified immunity purposes, the undersigned accepts that Defendants were
acting within their discretionary authority. The burden then shifts to Plaintiff to show that
Defendants are not entitled to qualified immunity on Plaintiff's First Amendment claims.
While Plaintiff asserts in his Statement of Material Facts that he "disputes" that
Defendants were not aware of violations of his religious rights, this assertion fails.
Plaintiff cites nothing in the record to support his assertion. FED. R. Civ. P. 56(c) (a
party asserting that a fact is genuinely disputed must cite to the record); FED. R. Civ. P.
56(e) (a fact asserted by a party should be properly supported). In addition, the
evidence before the Court reveals that Defendants followed the policies in place at the
Detention Center by not allowing Plaintiff to possess his bead necklaces, which is
reasonably related to the legitimate governmental interests of safety and security (which
Plaintiff concedes). Defendants provided Plaintiff with accommodations by allowing him
to have one bead necklace and by giving Plaintiff his bible after Defendant Durden was
able to discern the nature of the book, which was written in Spanish. These
accommodations provided Plaintiff with an alternative means to practice his religion,
even if he was not allowed to have all of the bead necklaces he desired or believes he
had to wear. In addition, Defendants' proffered reasons of safety and security, as well

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as allowing staff to focus on things other than the inmates who possessed jewelry, in
disallowing Plaintiff to have all of the necklaces he desired was the least intrusive
means of accomplishing the stated legitimate goals. Further, Defendants
accommodated Plaintiff, as noted previously. Finally, the undersigned discerns no
alternative means for Detention Center staff to have in place to regulate their policy
against jewelry. Defendants did not unconstitutionally abridge Plaintiffs right to
exercise his religion, and accordingly, there is no constitutional violation. Plaintiff has
failed to meet his burden of establishing that Defendants are not entitled to qualified
immunity. This portion of Defendants' Motion is granted.
2.

Equal protection claims

Defendants aver that Plaintiff cannot show that another inmate was treated better
than he was. Defendants contend that Plaintiff also cannot show that any alleged
discriminatory treatment was based on a prohibited classification. Defendants also
contend that any denial of religious items was due to a lack of notification to an
appropriate jail official and/or because all inmates are generally denied jewelry.
Defendants contend that Plaintiff cannot show that either Defendant knew about or
made any decision concerning his religious items before he filed this Complaint, and he
cannot show discriminatory intent.
Plaintiff contends that Defendants "have omitted and thus, conceded .
Plaintiffs claims stating that Muslim inmates are allowed to possess" certain religious
items because the "Muslim's (sic) religious items pose not 'security' or 'safety' threat."
(Doc. No. 95, p. 4). Plaintiff also asserts that Spanish speaking inmates are allowed to
have Christian bibles written in Spanish.

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"To establish an equal protection claim, a prisoner must demonstrate that (1) he
is similarly situated to other prisoners who received more favorable treatment; and (2)
the [government] engaged in invidious discrimination against him based on race,
religion, national origin, or some other constitutionally protected basis." Sweet v. Sec'v,
Dei't of Corr., 467 F.3d 1311, 1318-19 (11th Cir. 2006) (internal citation omitted). The
equal protection clause prohibits only intentional discrimination. See Ashcroft v. Icibal,
556 U.S. 662, 676 (2009).
Plaintiff cites to no objective evidence to support his contention that Defendants
treated similarly situated inmates more favorably than he was treated. Rather, Plaintiff
makes these blanket assertions in his Response to Defendants' Motion. Defendants
have admitted nothing by omission. Instead, Defendants note that Plaintiff cannot meet
his burden of establishing a genuine dispute as to a material fact on his equal protection
claim, which must be accomplished by citations to the record. Additionally, Plaintiff fails
to show that a non-Spanish speaking inmate who desired to have a bible written in
Spanish and that an inmate who desired more than one bead necklace was provided
with these items during the time period in which he was not. In short, Plaintiff fails to
establish that Defendants violated his right to equal protection. Defendants are entitled
to qualified immunity in the absence of a genuine dispute as to any fact material to this
alleged constitutional violation. This portion of Defendants' Motion is granted.

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CONCLUSION
Based on the foregoing, Defendants' Motion for Summary Judgment is DENIED
as to the exhaustion of administrative remedies defense, but otherwise is GRANTED.
Plaintiff's Complaint is DISMISSED, with prejudice. The Clerk of Court is directed to
enter the appropriate judgment of dismissal.

SO ORDERED, this

/ I-'—

day of January, 2015.

-z
61ES E. GRAHAM
FED STATES MAGISTRATE JUDGE

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