Rasheed v. Nevada Dept of Corrections et al

Filing 26

ORDER Granting 12 Motion to Dismiss. Case terminated. Signed by Judge James C. Mahan on 5/17/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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HABEEBULLAH RASHEED,

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Plaintiffs,
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vs.
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NEVADA DEPT. OF CORRECTIONS,
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et al.,
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Defendants.
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____________________________________)

2:11-cv-01411-JCM-CWH
ORDER

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Presently before the court is defendants’ motion to dismiss plaintiff’s complaint. (Doc. #12).

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Plaintiff Habeebullah Naeem Rasheed has filed an opposition (doc. #14) to which the defendants have

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replied (doc. #15).

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I.

Background

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Plaintiff’s complaint alleges that the Nevada Department of Corrections and several individual

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officers are engaged in a conspiracy and campaign of harassment to violate plaintiff’s constitutional

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rights. Specifically, plaintiff contends that he was unlawfully discriminated against on the basis of

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religion when he was forced to shave his beard and disciplined for failing to cut his dread locks.

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Plaintiff asserts that as a “Nazarite, Rastafarian, and Levite Melchizedek High Priest,” he cannot allow

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a razor to shave hair on his face and head. As a result of having to shave his beard and being disciplined

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for not cutting his hair, plaintiff seeks $350,000,000 in punitive and compensatory damages.

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Plaintiff originally filed claims for religious discrimination and retaliation under the First

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Amendment, equal protection under the Fourteenth Amendment, conspiracy, and cruel and unusual

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punishment under the Eighth Amendment against The Nevada Department of Corrections, Southern

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Desert Correctional Center, the Ely Conservation Camp, Warden Williams and Correctional Officer

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Noah. After screening the complaint pursuant to the Prison Litigation Reform Act, 28 U.S.C. 1915A(a),

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this court dismissed the Eighth Amendment claim pursuant to Fed. R. Civ. P. 12(b)(6) and defendants

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Nevada Department of Corrections, Southern Desert Correctional Center, and Ely Conservation Camp

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pursuant to the Eleventh Amendment’s sovereign immunity clause.

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Accordingly, the only remaining claims consist of religious discrimination and retaliation under

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the First Amendment, equal protection under the Fourteenth Amendment, and conspiracy. The only

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remaining defendants are Warden Williams and Correctional Officer Noah.

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Defendants now move to dismiss, arguing that plaintiff has failed to exhaust his administrative

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remedies. Upon reviewing the exhibits filed by both plaintiff and defendant regarding plaintiff’s

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administrative grievances, this court agrees that plaintiff has failed to exhaust his remedies.

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II.

Discussion

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Pro se pleadings must be liberally construed, especially where civil rights claims are involved.

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Hughes v. Rowe, 449 U.S. 5, 9 (1980); Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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Cir.1990).

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Prisoners seeking relief under § 1983 must exhaust all available administrative remedies prior

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to bringing suit. See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions

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under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other

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correctional facility until such administrative remedies as are available are exhausted.”). In Woodford

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v. Ngo, 548 U.S. 81, 93 (2006), the Supreme Court held that the PLRA requires “proper” exhaustion of

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administrative remedies. The Court wrote, “Proper exhaustion demands compliance with an agency’s

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deadlines and other critical procedural rules.” Id. at 90. This is “because no adjudicative system can

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function effectively without imposing some orderly structure on the course of its proceedings.” Id. at

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90–91. The exhaustion requirement is mandatory regardless of the relief sought, and the available

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remedies need not be “plain, speedy, and effective.” See Booth v. Churner, 532 U.S. 731, 741 (2001).

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A prison inmate in Nevada satisfies the administrative exhaustion requirement by following the

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procedures set forth in NDOC Administrative Regulation 740. This regulation expressly mandates that

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inmates “shall file an informal grievance” within six months “if the issue involves personal property

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damage or loss, personal injury, medical claims or any other tort claims, including civil rights claims.”

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It further warns that “[f]ailure by the inmate to submit a proper Informal Grievance form” within this

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time frame “shall constitute abandonment” of the inmate’s right to pursue resolution of that claim at any

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level of the inmate grievance procedure. Thus, an inmate in the custody of the NDOC, who fails to

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timely file a proper informal grievance, has abandoned his right to pursue resolution of any such claims

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through the inmate grievance procedure.

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When no other administrative remedy is available, the exhaustion requirement is deemed

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fulfilled. Booth, 532 U.S. at 736 n. 4. The obligation to exhaust persists as long as some remedy is

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available; when that is no longer the case, the prisoner need not further pursue the grievance. Brown v.

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Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005).

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Non-exhaustion under § 1997e(a) is an affirmative defense. Jones v. Bock, 549 U.S. 199, (2007);

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Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Because there can be no absence of exhaustion

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unless some relief remains available, a movant claiming lack of exhaustion must demonstrate that

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pertinent relief remained available, whether at unexhausted levels or through awaiting the results of the

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relief already granted as a result of that process. Brown, 422 F.3d at 936-37 (9th Cir. 2005).

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Claims Based on the Removal of Plaintiff’s Beard

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With respect to plaintiff’s allegations regarding the removal of his beard, plaintiff never filed a

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grievance challenging the grooming policy or alleged threats from staff. Plaintiff argues that he was

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prevented from filing a grievance because he feared retaliation from the alleged perpetrator of the

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threats. Opp. at 7-8. The court finds the charge of feared retaliation unpersuasive. Plaintiff was

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subsequently transferred away from the facility where his beard was shorn, and away from the individual

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that he feared, therefore he could have filed a grievance without fear of retaliation (as he did with regards

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to his complaint regarding his dread locks). As plaintiff failed to even initiate, let alone exhaust, his

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administrative remedies with respect to the shaving of his beard, the court finds that defendants have met

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their burden of raising and proving the absence of exhaustion of plaintiff’s First Amendment, Fourteenth

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Amendment, and conspiracy claims with respect to the removal of plaintiff’s beard. See 42 U.S.C. §

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1997e(a).

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Claims Based on Disciplinary Actions taken with Regard to the Length of Plaintiff’s Hair

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Plaintiff’s claims relating to the disciplinary actions imposed for his refusal to cut his dread locks

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must similarly be dismissed for failure to exhaust administrative remedies. Plaintiff complains of being

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“written up” for six disciplinary infractions while incarcerated at Ely Conservation Camp, resulting in

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an increase in plaintiff’s custody level. Defendants’ motion, as well as plaintiff’s opposition, attach the

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write ups as well as other documents from plaintiff’s inmate file. The attached exhibits establish that

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plaintiff never properly appealed the disciplinary write ups, and therefore failed to exhaust his

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administrative remedies.

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The first grievance plaintiff filed in relation to the length of his hair was filed on April 7, 2011.

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See Mot., Ex. D, Grievance #8660. This grievance was denied. See id. Rather than appealing the

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grievance, plaintiff filed a second grievance voicing the same complaint. See id., Ex. E, Grievance

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#8882. This second grievance was denied on the basis that it was a duplicate. See id. Rather than file

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a second, duplicative grievance, plaintiff was required to appeal his initial grievance up the chain.

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Grievance #8860 clearly stated such, where it instructed “A FIRST LEVEL GRIEVANCE MAY BE

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PURSUED IN THE EVEN THE INMATE DISAGREES.” Ex. D. Rather than follow these

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instructions, plaintiff decided to file a second grievance. Though he appealed his denials of the second

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grievance, he never appealed the denial of the first (operative) grievance.

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The second grievance, and its successive appeals were properly denied as duplicative. Therefore,

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plaintiff’s continued escalation of the grievance up the various levels of command were unhelpful to his

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cause. Plaintiff should have appealed his first, operative grievance. By failing to do so, plaintiff

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abandoned his administrative remedies and failed to properly exhaust.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendants’ motion to dismiss

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(doc. #12) be, and the same hereby is, GRANTED.
DATED May 17, 2012.
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UNITED STATES DISTRICT JUDGE

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