Spigelman v. Samuels et al

Filing 9

MEMORANDUM OPINION AND ORDER: 1) The Clerk of the Court shall prepare the documents necessary for service of process upon the named defendants in their individual capacities: a) Charles E. Samuels, Jr., Director Bureau of Prisons; b) Richard B. Ive s, Warden, USP-McCreary; c) H Quay, Associate Warden, Programs, USP-McCreary; d) J.G. Hallock, Supervisory Chaplain, USP-McCreary; and e) D. Basile, Chaplain, USP-McCreary; 2) The Clerk of the Court shall prepare a "Service Packet" consisti ng of the following documents for service upon the Defendants: a) a completed summons form; b) the complaint and attachments thereto [R.1]; c) this Order; and d) a completed USM Form 285; 3) The Deputy Clerk shall provide the Service Packets and copi es to the USM in Lexington, Kentucky; 4) Service of process upon Defendants Richard B. Ives, Warden; H. Quay, Associate Warden, Programs; J.G. Hallock, Supervisory Chaplain; and D. Basile, Chaplain, all prison staff at USP-McCreary, shall be conducte d by the United States Marshals be serving a Service Packet personally upon each of them. The USM Office is responsible for ensuring that each defendant is successfully served with process. In the event that an attempt at service upon defenda nt is unsuccessful, the USM Office shall make further attempts and shall ascertain such information as is necessary to ensure successful service; 5) Service of Process upon Defendant Charles E. Samuels, Jr., Director, Federal Bureau of Prisons shall be made by certified or registered mail, return receipt requested to Charles E. Samuels, Jr., Director, Federal Bureau of Prisons at the BOP's Central Office in Washington, DC; 6) The USM Office must complete service on the named Defendan ts by serving the Service Packets described in the above paragraph 2 by certified or registered mail to: a) one set of the copies to the Civil Process Clerk at the Office of the United States Attorney for the Eastern District of Kentucky; b) o ne set to the Office of the Attorney General of the United States in Washington, DC; and c) one set to the office of the Federal Bureau of Prisons in Washington, DC; 7) Spigelman must advise the Clerk's Office of any change in his current mailin g address. Failure to do so may result in dismissal of this case; 8) Spigelman must communicate with the Court solely through notices or motions filed with the Clerk's Office; 9) For every further pleading or other document he wishes to submit t o the Court, Spigelman shall serve upon the Defendants, or, if appearance has been entered by counsel, upon Defendants' attorney, a copy of the pleading or other document. Spigelman shall send the original papers to be filed with the Clerk of th e Court together with a certificate stating the date a true and correct copy of the document was mailed to the defendants or counsel; 10) The Court will disregard any document which has not been filed with the Clerk of the Court; which has been filed but fails to include a certificate of service of copies; or which has been sent directly to the Judge's chambers. Signed by Judge Gregory F. Van Tatenhove on 10/21/2013.(RC)cc: COR, paper copy to pro se filer

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
JOEL STEVEN SPIGELMAN,

v.
CHARLES E. SAMUELS, JR., et al.,
Defendants.

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FilED
OCT 222013
AT FRANKFORT
ROBERT R. CARR
CLERK U.S. DISTRICT COURT

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Plaintiff,

Eastern District ofKentucky

Civil Action No. 13-CV-074-GFVT

MEMORANDUM OPINION
AND ORDER

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I
Joel Steven Spigelman is an inmate confined in the United States Penitentiary in
Coleman, Florida. Proceeding without an attorney, Spigelman has filed a civil rights complaint
[R. 1] asserting claims under 28 U.S.C. § 1331, pursuant to the doctrine announced in Bivens v.

Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), and the Religious Land Use and
Institutionalized Persons Act of 2000 ("RLUIPA") § 3 et seq., 42 U.S.C.A. § 2000cc-l, el seq.
Spigelman filed a prior action in this district asserting the same claims against the same
defendants. See Joel Steven Spigelman v. Charles E. Samuels, Jr., et at., No. 6: 12-cv-104-GFVT
(E.D. Ky. 2012) (hereafter "Spigelman f'). Spigelman I was dismissed without prejudice
because Spigelman had failed to exhaust his administrative remedies. [!d., at R. 17]. In that
dismissal, the Court advised Spigelman that he could file a new Bivens action once he had

exhausted his administrative remedies. l By prior order, the Court waived the payment of any
filing fee. [R. 2].
The Court must conduct a preliminary review ofSpigelman's complaint in the present
action (hereafter "Spigelman If') because (l) Spigelman was granted pauper status in Spigelman
1 and was permitted to pay the filing fee in installments, (2) the filing fee in the present case has

been waived, and (3) he asserts claims against government officials. 28 U.S.C. §§ 1915(e)(2),
1915A A district court must dismiss any claim that is frivolous or malicious, fails to state a
claim upon which relief may be granted, or seeks monetary relief from a defendant who is
immune from such relief. McGore v. Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997). The
Court evaluates Spigelman's complaint under a more lenient standard because he is not
represented by an attorney. Erickson v. Pardus, 551 U.S. 89,94 (2007); Burton v. Jones, 321
F.3d 569, 573 (6th Cir. 2003). At this stage, the Court accepts the plaintiff's factual allegations
as true, and his legal claims are liberally construed in his favor. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555-56 (2007). For the reasons explained below, the Defendants will be required
to respond to Spigelman's complaint.

II
Prior to his transfer to USP-Coleman, Spigelman was confined in USP-McCreary,
located in Pine Knot, Kentucky. Spigelman, who describes himself as "an observant Jewish
male," alleges that while he was confined in USP-McCreary's segregated housing unit ("SHU")
between November 9,2011, and January 12,2012, the Defendants violated his First Amendment

lFurther, since Spigelman had been granted permission to pay the filing fee in
installments in Spigelman 1, the Court advised Spigelman that the filing fee in his new Bivens
case would be waived if he asserted the same claims therein as he did in Spigelman 1. [R. 17 at
5].

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right to observe his religious beliefs and his rights guaranteed under the RLUIP A, by denying
him permission to wear certain religious articles collectively known as a "tefillin," which
observant Jews wear during weekday morning prayers. [R. 1 at 9]. A teflllin consists of a set of
small black leather boxes containing scrolls of parchment inscribed with verses from the Torah.
The hand-tefillin, or shel yad, is placed on the upper arm, and the strap wrapped around the arm,
hand, and fingers, while the head-tefillin, or shel rosh, is placed above the forehead. Spigelman
asserts that wearing a tefillin is a "cornerstone" of Jewish faith, and that the defendants violated
the Bureau of Prisons' ("BOP") policy which permits Jewish prisoners to wear a tefillin.
Spigelman states that he submitted an informal grievance concerning his religious claim,
but that the prison staff did not respond to it; then he submitted a formal grievance complaining
about the issue, but he received no response. [R. 1 at 4-5.] He did not appeal to either the BOP's
Regional nor Central Offices because he "did not receive any response nor copy of my
grievance." [Id. at § III(A)(3)(b) (as to the BOP's Regional Office) and (4)(b) (as to the BOP's
Central Office)]. Spigelman seeks $360,000 in compensatory damages and unspecified punitive
damages.
It is apparent from the face of his complaint that Spigelman did not exhaust his

administrative remedies regarding his First Amendment and RLUIPA claims. Spigelman
acknowledges that he did not exhaust his administrative remedies prior to filing the complaint;
however, he also claims that he attempted to exhaust his administrative remedies, but that prison
officials thwarted his efforts to do so. Specifically, Spigelman states that he filed numerous cop­
outs with USP-McCreary's staff regarding his lack of access to the tefillin with the following
prison staff and that he personally talked to the following stafI about this matter when they were
making the rounds in the SHU: Warden Richard B. Ives, Associate Warden H. Quay, Captain B.
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Antonelli, Supervisory Chaplain J. G. Hallock, Chaplain D. Basile, Counselor Partin, and SHU
Lt. Cheney. [R. 1-11 at 1.. Spigelman states that "nobody would answer the cop-outs." [Jd.]
Spigelman also claims that he gave a BP8 Form to Counselor Partin, which Partin accepted but
failed to respond to and would not provide Spigelman with a copy thereof. Spigelman further
states that he filed a valid BP9 at USP-McCreary, but that "Counselor Partin refused to make
Spigelman a copy of BP9; refused to answer BP9; refused to see Spigelman during his time in
the SHU." [R. 1-5 at 4.] Subsequently, Spigelman was transferred to USP-Coleman 1. After the
transfer, Spigelman states: "At USP Coleman I, the Counselorrefused to address Spigelman's
request for BPI0 or BPIl. Without these forms, Spigelman could not continue with
administrative remedies." [R. 1-5 at 5.]
Spigelman concedes that he abandoned the exhaustion process at both the second and
third levels because he allegedly received no response to his request for a formal remedy (BP-9)
from the Warden ofUSP-McCreary, and that after he was transferred to USP-Coleman I, his
Counselor refused to provide him with the BP-lO and/or BP-l1 forms necessary to continue and
complete the exhaustion process.
Federal law requires state and federal prisoners to exhaust all available administrative
remedies before filing suit to challenge any aspect of their prison conditions. 42 U.S.C. §
1997e(a). Federal prisoners must follow the BOP's four-tiered administrative remedy process set
forth at 28 C.F.R. §§ 542.10-542.19. The BOP regulation which governs responses to inmate
grievances states that "[i]f the inmate does not receive a response within the time allotted for
reply, including extension, the inmate may consider the absence of a response to be a denial at
that level." 28 C.F.R. § 542.18. Thus, if the Warden does not respond to an inmate's BP9 within
the allotted time, the inmate is free to file an appeal to the BOP's Regional Office. However, if
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the inmate is unable to obtain the BPI 0 form from prison officials, he cannot file an appeal, thus
crippling his ability to pursue and exhaust his administrative remedies.
If prison officials prevent an inmate from exhausting administrative remedies by ignoring
properly filed grievances or by impeding the use of the grievance system through actions such as
withholding necessary forms, destroying inmate submissions, and the like, those remedies are not
"available" to the prisoner and he has not forfeited his ability to file suit. See Pavey v. Conley,
544 F.3d 739, 742 (7th Cir.2008); Kaba v. Stepp, 458 F.3d 678, 684-85 (7th Cir.2006); Dale v.
Lappin, 376 F.3d 652, 656 (7th Cir.2004); Strong v. David, 297 F.3d 646, 649-50 (7th Cir.2002).
Spigelman states that after his cop-outs went unanswered, he filed a BP8 form with
Counselor Partin, but that Partin did not respond to it and failed to provide him with a copy of it.
[R. 1-5 at 4; R. 1-11 at 1-2,6.] He further states that he filed a BP9 with the Warden at USP­
McCreary, that Warden Ives responded to the BP9 but refused to provide him with a copy of it
and that Warden Holland failed to provide him with a BP10 form to appeal to BOP's Regional
Office. [R. 1-11 at 11.] Moreover, after his transfer to FCI-Coleman I, Spigelman claims that
prison officials there would not respond to his request for BP 10 or BP 11 forms. Thus, assuming
the truthfulness of Spigelman's assertions, he was unable to exhaust his administrative remedies
solely because prison officials would not provide him with the forms necessary to accomplish
that task.
When a prisoner follows proper procedures and prison officials are responsible for
mishandling his grievance, it cannot be said that the prisoner has failed to exhaust his remedies.
Dole v. Chandler, 438 F.3d 804, 811 (7th Cir.2006). To reiterate, at this stage, the Court must
accept Spigelman's version of the events as true, Lewis v. Downey, 58] F.3d 467,472 (7th Cir.
2009), and his legal claims are liberally construed in his favor. Bell Atlantic Corp. v. Twombly,
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supra. At this stage, based on Spigelman's allegations, the Court must presume that he

attempted to exhaust his administrative remedies and that prison officials essentially prevented
him from doing so by failing to provide him with the necessary forms.
Thus, to the extent that exhaustion of administrative remedies is at issue in this case, it
should be decided on a more fully developed record. See Jones v. Bock, supra. Consequently,
the court will direct the issuance of summons to the named Defendants to respond to
Spigelman's First Amendment and RLUIPA claims.
Accordingly, IT IS ORDERED that:
1.

The Clerk of the Court shall prepare the documents necessary for service of

process upon the named defendants, in their individual capacities:
a.
b.
c.
d.
e.
2.

Charles Samuels, Jr., Director Bureau of Prisons;
Richard B. Ives, Warden, USP-McCreary;
H. Quay, Associate Warden, Programs, USP-McCreary;
J. O. Hallock, Supervisory Chaplain, USP-McCreary; and,
D. Basile, Chaplain, USP-McCreary.

The Clerk of the Court shall prepare a "Service Packet" consisting of the

following documents for service of process upon the Defendants:
a.
b.
c.
d.
3.

a completed summons form;
the complaint and attachments thereto [R. 1];
this Order; and
a completed USM Form 285.

The Deputy Clerk shall provide the Service Packets and copies to the United

States Marshal ("USM") in Lexington, Kentucky.
4.

Service of Process upon Defendants Richard B. rves, Warden; H. Quay, Associate

Warden, Programs; J. O. Hallock, Supervisory Chaplain; and, D. Basile, Chaplain, all prison
staff at USP-McCreary, shall be conducted by the United States Marshals by serving a Service

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Packet personally upon each of them, through arrangement with the Federal Bureau of Prisons.
The USM Office is responsible for ensuring that each defendant is successfully served with
process. In the event that an attempt at service upon a defendant is unsuccessful, the USM Office
shall make further attempts and shall ascertain such information as is necessary to ensure
successful service.
5.

Service of Process upon Defendant Charles E. Samuels, Jr., Director, Federal

Bureau of Prisons, shall be made by certified or registered mail, return receipt requested, to
Charles E. Samuels, Jr., Director, Federal Bureau of Prisons, at the BOP's Central Office in
Washington, D.C.
6.

The USM Office must complete service on the named Defendants by serving the

Service Packets described in above paragraph 2 by certified or registered mail to:
a.

b.

one set to the Office of the Attorney General of the
United States in Washington, D.C.; and

c.

7.

one set of the copies to the Civil Process Clerk at the Office of the United
States Attorney for the Eastern District of Kentucky;

one set to the Office of the Federal Bureau of Prisons in Washington, D.C.

Spigelman must advise the Clerk's Office of any change in his current mailing

address. Failure to do so may result in dismissal of this case.
8.

Spigelman must communicate with the Court solely through notices or motions

filed with the Clerk's Office.
9.

For every further pleading or other document he wishes to submit to the Court,

Spigelman shall serve upon the Defendants, or, if appearance has been entered by counsel, upon
Defendants' attorney, a copy ofthe pleading or other document. Spigelman shall send the

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original papers to be filed with the Clerk of the Court together with a certificate stating the date a
true and correct copy of the document was mailed to the defendants or counsel.
10.

The Court will disregard any document which has not been filed with the Clerk

of the Court; which has been filed but fails to include the certificate of service of copies; or
which has been sent directly to the Judge's chambers.
This 21st day of October, 2013.

Signed By:

Gregory F. Van Tatenhove"­

United States District Judge

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