Redick (ID 84933) v. McKiearnan et al

Filing 62

MEMORANDUM AND ORDER ENTERED: Defendants' motion to dismiss or for summary judgment (Doc. 42 ) is granted. Defendants' motion to stay discovery (Doc. 45 ), plaintiff's motion for injunctive relief (Doc. 47 ) and plaintiff's motion to amend (Doc. 56 ) are denied as moot. Signed by U.S. Senior District Judge Sam A. Crow on 9/10/2020. Mailed to pro se party Andrew Redick by regular mail. (jal)

Case 5:19-cv-03101-SAC Document 62 Filed 09/10/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ANDREW REDICK,
Plaintiff,
v.

CASE NO. 19-3101-SAC

STEVE McKIEARNAN, et al.,
Defendants.

MEMORANDUM AND ORDER
This matter is a civil rights action filed under 42 U.S.C. § 1983
by a prisoner in state custody. Defendants Steve McKiearnan and Austin
Channell have filed a motion to dismiss, or, in the alternative, for
summary judgment. Plaintiff has filed a response, and this matter is
ripe for disposition. For the reasons that follow, the Court grants
defendants’ motion.
Nature of the Complaint
During the relevant time period, plaintiff was incarcerated in
the Larned Correctional Mental Health Facility (LCMHF). He claims the
defendants, Chaplain McKiearnan and Correctional Officer Channell,
violated his First and Fourteenth Amendment rights during his
confinement by denying him the opportunity to participate in Ramadan.
He seeks declaratory judgment and damages and asks the Court to bring
criminal charges against the defendants.
Factual Background
On July 18, 2017, while a prisoner at the Lansing Correctional
Facility (LCF), plaintiff changed his religious preference to Native
American using the process established by Kansas Department of
Corrections policy and set out in its Internal Management Policy and

Case 5:19-cv-03101-SAC Document 62 Filed 09/10/20 Page 2 of 5

Procedure (IMPP) 10-110D. Under that policy, a prisoner may request
a change of religious preference by completing a Change of Religion
Request form and turning it in to the chaplain, the warden, or the
warden’s designee for approval.
On January 25, 2018, plaintiff was admitted to the LCHMF. On
October 6, 2018, he sought, and was granted, a pork-free diet for
unspecified religious purposes.
On April 30, 2019, plaintiff sent defendant McKiearnan a request
to be placed on the call out list for Ramadan. Defendant McKiearnan
denied the request because plaintiff’s religious preference was
identified as Native American.
Plaintiff denied that he had changed his religious preference
to Native America and twice refused to sign a change of religion form.
Plaintiff was away from the LCMHF from May 9-21, 2019, for court
proceedings. Following his return to the facility, he asked defendant
Channell to let him out of his cell to participate in Ramadan.
Defendant Channell checked the call out sheet and denied the request
because

plaintiff’s

name

was

not

listed.

Defendant

Channell’s

supervisor, Captain Diest, advised him not to allow plaintiff out of
his cell because he was not listed on the call out and because his
religious preference of record was Native American.
On May 28, 2019, plaintiff submitted a completed form to
defendant McKiearnan to change his religious preference to Moorish
Science Temple of America (MSTA). The request was approved on the same
day, and plaintiff participated in the final days of Ramadan and in
the Eid meal held on June 4, 2019.
Analysis
Defendants present five arguments in support of their request

Case 5:19-cv-03101-SAC Document 62 Filed 09/10/20 Page 3 of 5

for

dismissal or, in the alternative, for summary judgment. While

all of the arguments are well-taken, the Court finds the claim that
plaintiff failed to exhaust available administrative remedies is
dispositive and entitles defendants to the dismissal of this action.
Failure to exhaust administrative remedies
The Prison Litigation Reform Act (“PLRA”) established 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.” 42
U.S.C. § 1997e(a). This language is mandatory. See Jones v. Bock, 549
U.S. 199, 211 (2007)(“There is no question that exhaustion is
mandatory under the PLRA.”). A district court may not excuse a failure
to exhaust. Woodford v. Ngo, 548 U.S. 81, 90 (2006)(“Exhaustion is
no longer left to the discretion of the district court, but is
mandatory.”).
Case law requires a prisoner to comply with the procedure
established by the available remedy process. See Little v. Jones, 607
F.3d 1245, 1249 (10th Cir. 2010)(“Because the prison’s procedural
requirements define the steps necessary for exhaustion, an inmate may
only exhaust by properly following all of the steps laid out in the
prison system’s grievance procedure.”) and Thomas v. Parker, 609 F.3d
1114, 1118 (10th Cir. 2010)(“[a]n inmate who begins the grievance
process but does not complete it is barred from pursuing a § 1983
claim.”) (internal quotation marks and citation omitted).
In Kansas, a prisoner in state custody must complete a four-step
administrative grievance procedure to exhaust claims concerning the
conditions and incidents of confinement. These steps are set out in

Case 5:19-cv-03101-SAC Document 62 Filed 09/10/20 Page 4 of 5

K.A.R. 44-15-102. The first step requires a prisoner to seek informal
resolution of the grievance by presenting it to a member of the
prisoner’s unit team. If this effort is unsuccessful, the prisoner
then must submit a grievance form to staff members on the unit team.
If this step does not resolve the grievance, the prisoner must appeal
the grievance to the warden. Finally, if the prisoner does not obtain
relief at this stage, he must appeal to the Secretary of Corrections
to complete the process.
Here, records maintained by the Kansas Department of Corrections
show that plaintiff did not complete the grievance process concerning
any request concerning Ramadan in 2019. See Doc. 37-14 at 1 (affidavit
of M. Schmidt). Plaintiff has not contested this statement, and his
own submissions do not show that he pursued any grievance beyond the
initial

stage

of

seeking

informal

resolution.

See

Doc.

7-1

(attachments to complaint). Because plaintiff did not complete the
administrative grievance procedure, the Court finds this matter must
be dismissed.
Criminal charges
In addition to declaratory relief and damages, plaintiff seeks
the initiation of criminal charges against the defendants. The Court
cannot order the filing of criminal charges. See Presley v. Presley,
102 F. App'x 636, 636-37 (10th Cir. 2004) (holding that a federal court
order for “investigation or prosecution of various people for various
crimes” would “improperly intrude upon the separation of powers”).
Conclusion
For the reasons set forth, the Court grants the motion for
dismissal of this matter due to plaintiff’s failure to exhaust
available administrative remedies. The Court will deny the remaining

Case 5:19-cv-03101-SAC Document 62 Filed 09/10/20 Page 5 of 5

pending motions as moot and declines to exercise supplemental
jurisdiction over any state law claims presented in this matter.
IT IS, THEREFORE BY THE COURT ORDERED defendants’ motion to
dismiss or for summary judgment (Doc. 42) is granted.
IT IS FURTHER ORDERED defendants’ motion to stay discovery (Doc.
45),

plaintiff’s

motion

for

injunctive

relief

(Doc.

47)

and

plaintiff’s motion to amend (Doc. 56) are denied as moot.
IT IS SO ORDERED.
DATED:

This 10th day of September, 2020, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge