Williams v. Chuvalas et al
REPORT AND RECOMMENDATION: It is RECOMMENDED that Defendants' 20 Motion for Summary Judgment be GRANTED such that Plaintiff's claim against Defendant Smith be DISMISSED WITHOUT PREJUDICE. Objections to R&R due by 11/21/2017. Signed by Magistrate Judge Chelsey M. Vascura on 11/7/2017. (kpt)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WARDEN RICK CHUVALAS, et al.,
Case No. 2:16-cv-33
Judge George C. Smith
Magistrate Judge Chelsey M. Vascura
REPORT AND RECOMMENDATION
Plaintiff, Charles Williams, a state inmate proceeding without the assistance of counsel,
brought this action under 42 U.S.C. § 1983, alleging that Defendants Warden Rick Chuvalas and
Major George Smith violated his First Amendment rights by establishing a religion. (ECF No.
6.) This matter is before the United States Magistrate Judge for a Report and Recommendation
of Defendants’ Motion for Summary Judgment. (ECF No. 20.) For the reasons set for below, it
is RECOMMENDED that the Defendants’ Motion for Summary Judgment be GRANTED.
According to Plaintiff’s Complaint, the alleged Establishment Clause violation occurred
while Plaintiff was temporarily housed at the Correctional Reception Center (“CRC”) in Orient,
Ohio. (Compl. 1, ECF No. 6.) Plaintiff alleges on July 18, 2015, the Bill Glass “Behind the
Walls” event permitted by CRC established religion in violation of his First Amendment rights
because he was forced to hear a Christian inmate band play and Christian preaching by the Bill
Glass speaker. (Id. at 2.) The Bill Glass event was hosted outside in the prison’s recreation yard.
According to Plaintiff, the event was mandatory, and when he tried to walk away from the event,
Defendant Major George Smith ordered him “to go stand in the crowd” even though he told
Defendant Smith he is a Muslim. (Id.) Plaintiff also complains he was forced to hear preaching
afterwards at lunch because the Bill Glass members stayed and talked with the inmates while
they ate. Id.
Defendants contend that the primary purpose of the Bill Glass event was for
entertainment, not for religious preaching. (Mot. for Summ. J. 3, ECF No. 20.) According to
Defendants, a juggler performed and told jokes, and at the end shared his “personal story” and
asked if any of the inmates wanted to learn more about Christianity. (Id. at 4.) If any inmates
did want to learn more, they were able to meet privately in smaller groups with Bill Glass
volunteers, but no inmates were forced to be part of those conversations. (Id.) Defendants also
point out that the inmate band that typically performs at CRC’s chapel services played a variety
music such as Johnny Cash songs. (Id. at 3.) Defendants do not refute that the event was
mandatory, but assert that because CRC is a level-three prison, for safety and security reasons,
all inmates are escorted together to food service and recreation. (Id. at 3.) According to
Defendants, Defendant Smith found Plaintiff doing “calisthenics” on the track and told him to
stop causing disruptions. (Id. at 4.) Defendant Smith represents that he allowed Plaintiff to stay
on the baseball bench, which was about 150 yards away from the Bill Glass event, for the
remainder of the event. Defendants therefore posit that Plaintiff was not required to participate
in the event. (Id.)
Prior to filing his Complaint, Plaintiff filed a grievance on July 20, 2015, against the
Warden with the Chief Inspector of the Ohio Department of Rehabilitation and Corrections
regarding the Bill Glass event, and his grievance was granted. (Compl. 4–5, ECF No. 2.) He
also filed an informal complaint against Major Smith on July 18, 2015, but alleged he never
received a response for that grievance. Id. Defendants however, attached the informal complaint
resolution response, which reflects that Plaintiff’s informal complaint was answered. (Defs.’ Ex.
D, at 9, ECF No. 20-1.)
Plaintiff filed his Complaint on March 1, 2016, seeking compensatory and punitive
damages against both Warden Chuvalas and Major Smith. (Compl. 4–5, ECF No. 2.)
Defendants filed their Motion for Summary Judgment on May 4, 2017. (ECF No. 20.) On June
8, 2017, the Court issued an Order advising Plaintiff to “file an opposing memorandum, if any,
within fourteen days of the date of this order. Failure to do so may result either in the motion
being treated as unopposed, or in dismissal of this action for failure to prosecute.” (June 8, 2017
Order, ECF No. 21.) To date, Plaintiff has failed to file a response to Defendants’ Motion for
Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The moving party has the initial
burden of proving that no genuine issue of material fact exists, and the court must draw all
reasonable inferences in the light most favorable to the nonmoving party.” Stansberry v. Air
Wisconsin Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf.
Fed. R. Civ. P. 56(e)(2) (providing that if a party “fails to properly address another party’s
assertion of fact” then the Court may “consider the fact undisputed for purposes of the motion”).
The burden then shifts to the nonmoving party to “set forth specific facts showing that there is a
genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “The
evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his
favor.” Id. at 255 (citation omitted). “The nonmovant must, however, do more than simply
show that there is some metaphysical doubt as to the material facts, . . . there must be evidence
upon which a reasonable jury could return a verdict in favor of the non-moving party to create a
genuine dispute.” Lee v. Metro. Gov’t of Nashville & Davidson Cty., 432 F. App’x 435, 441 (6th
Cir. 2011) (internal quotation marks and citations omitted); see also Fed. R. Civ. P. 56(c)
(requiring a party maintaining that a fact is genuinely disputed to “cit[e] to particular parts of
materials in the record”). “When a motion for summary judgment is properly made and
supported and the nonmoving party fails to respond with a showing sufficient to establish an
essential element of its case, summary judgment is appropriate.” Stansberry, 651 F.3d at 486
(citing Celotex, 477 U.S. at 322–23).
Here, Defendants filed their Motion for Summary Judgment on May 4, 2017. (ECF No.
20.) Plaintiff was ordered on June 8, 2017, to file a response within fourteen days of the Order,
but failed to respond. (ECF No. 21.) Defendants’ Motion for Summary Judgment will therefore
be treated as unopposed.
As a preliminary matter, the undersigned finds that Plaintiff’s failure to respond to
Defendants’ Motion for Summary Judgment amounts to an abandonment of his claims against
them. See Clark v. City of Dublin, 178 F. App’x 522, 524–25 (6th Cir. 2006) (affirming trial
court’s finding that a party’s failure to properly respond to the arguments raised in a motion for
summary judgment constituted an abandonment of those claims); Hicks v. Concorde Career
Coll., 449 F. App’x 484, 487 (6th Cir. 2011) (“The district court properly declined to consider
the merits of this claim because [the plaintiff] failed to address it in either his response to the
summary judgment motion or his response to [the defendant’s] reply brief); Conner v. Hardee’s
Food Sys., 65 F. App’x 19, 24–25 (6th Cir. 2003) (finding that the plaintiff’s failure to brief
issues relating to one of its claims in the district court amounted to an abandonment of that
claim). The undersigned further finds that Defendants are entitled to summary judgment because
the Defendants have met their burden by demonstrating no genuine dispute of material fact
Defendants argue that Plaintiff’s claim against Defendant Smith should be dismissed
because Plaintiff failed to exhaust his administrative remedies. The undersigned finds that
Defendant Smith has satisfied his burden to show that Plaintiff failed to exhaust his
Under 42 U.S.C. § 1997e(a), as amended by the PLRA, “a prisoner confined in any jail,
prison, or other correctional facility” may not bring an action challenging “prison conditions”
under 42 U.S.C. § 1983 “or any other Federal law . . . until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 211 (2007)
(“There is no question that exhaustion is mandatory under the PLRA and that unexhausted
claims cannot be brought in court.” (citation omitted)). This mandatory exhaustion requirement
applies to all lawsuits relating to prison conditions, regardless of the nature of the wrong or the
relief sought. Porter v. Nussle, 534 U.S. 516, 524 (2002). “Exhaustion” under the PLRA means
“proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93 (2006). To properly exhaust, prisoners
must “tak[e] advantage of each step the prison holds out for resolving the claim internally and . .
. follow the ‘critical procedural rules’ of the prison’s grievance process to permit prison officials
to review and, if necessary, correct the grievance ‘on the merits’ in the first instance.” Reed-Bey
v. Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010); Jones, 549 U.S. at 217–18 (noting that proper
exhaustion requires “[c]ompliance with prison grievance procedures”).
Proper exhaustion is “defined not by the PLRA, but by the prison grievance process
itself.” Jones, 549 U.S. at 218. Ohio’s Administrative code establishes a three-step grievance
process for inmates before they have properly exhausted their complaint. OHIO ADMIN. CODE
5120-9-31(K). First, the inmate must file an informal complaint within fourteen days after the
event occurs to the direct supervisor or relevant department specifically describing the event
giving rise to the complaint. Id. at 5120-9-31(K)(1). The second step if the inmate is dissatisfied
with the informal complaint response from the prison staff is for the inmate to file a notification
of grievance with the inspector of institutional services within fourteen days after the response.
Id. at 5120-9-31(K)(2). Finally, the third step before an inmate has exhausted his administrative
remedies is to file an appeal to the office of the chief inspector within fourteen days after the
inspector of institutional services response. Id. at 5120-9-31(K)(3). The chief inspector’s
decision is final, and once the inmate receives a response, he has exhausted the prison grievance
“A prisoner’s failure to exhaust his intra-prison administrative remedies prior to filing
suit ‘is an affirmative defense under the PLRA . . . .’” Surles v. Andison, 678 F.3d 452, 455 (6th
Cir. 2012) (quoting Jones, 549 U.S. at 216). Defendants bear the burden of proof on the
affirmative defense of exhaustion. Napier v. Laurel Cty., Ky., 636 F.3d 218, 225 (6th Cir. 2011)
(citations omitted) (“[F]ailure to exhaust administrative remedies under the PLRA is an
affirmative defense that must be established by the defendants.”). “Summary judgment is
appropriate only if defendants establish the absence of a genuine dispute as to any material fact
regarding non-exhaustion.” Surles, 678 F.3d at 455. “When a prisoner’s complaint contains a
combination of exhausted and unexhausted claims, courts are to dismiss the unexhausted claims
but retain and address the exhausted claims.” Reynolds-Bey v. Harris, 428 F. App’x 493, 500
(6th Cir. 2011) (citing Jones, 549 U.S. at 220–24).
Applying the foregoing authority, Defendant Smith has met his burden of proving that
Plaintiff failed to exhaust his administrative remedies. As set forth above, Plaintiff was required
to “properly exhaust” his claims, which in part required him to follow the procedural rules set
forth in the ODRC’s grievance process. See Reed-Bey, 603 F.3d at 324. Specifically,
Defendants have provided uncontroverted evidence that Plaintiff’s informal grievance request on
July 18, 2015, was answered by a staff member on July 22, 2015. (See Defs.’ Ex. D, at 9, ECF
No. 20-1.) Pursuant to step two of Ohio’s grievance procedure, Plaintiff had fourteen days from
the July 22, 2015 response to file his notification of grievance. Ohio Admin. Code § 5120-931(K)(2). Plaintiff failed, however, to file his notification of grievance and thus failed to exhaust
his administrative remedies with regard to Defendant Major Smith.
Accordingly, it is RECOMMENDED that Plaintiff’s claims against Defendant Smith be
DISMISSED WITHOUT PREJUDICE for failure to comply with the PLRA’s exhaustion
For there to be a constitutional violation under 42 U.S.C. § 1983, there must have been
state action by a person acting under the color of state law. Wolotsky v. Huhn, 960 F.2d 1331,
1335 (6th Cir. 1992). Here, the Deputy Warden, Karrie Hupka, assisted in planning the Bill
Glass event, the event was held in the CRC’s recreation yard, and Defendant Warden Chuvalas
does not dispute that hosting the Bill Glass event was state action. (Decl. Ex. A, at 7, ECF No.
20-1.) Thus, the evidence demonstrates Defendant Warden Chuvalas was acting under color of
law when he permitted the Bill Glass event to occur.
Nevertheless, the undersigned conclude that the uncontroverted evidence submitted by
Defendants reflect that they are entitled to summary judgment on Plaintiff’s on Plaintiff’s
Establishment Clause violation claim.
“The touchstone for our analysis is the principle that the The First Amendment mandates
governmental neutrality between religion and religion, and between religion and nonreligion.”
McCreary Cty., Ky. v. ACLU of Ky., 545 U.S. 844, 860 (2005) (internal quotation marks
omitted). The most widely adopted test for determining an Establishment Clause violation by a
state actor is the Lemon test, under which the state actor must demonstrate that their practice (1)
reflects a secular purpose, (2) has a primary purpose or effect must that neither advances nor
inhibits religion, and (3) does not foster “an excessive government entanglement with religion.”
Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971); cf. ACLU of Ky. v. Mercer Cty., Ky., 432 F.3d
624, 635–36 (6th Cir. 2005) (while expressing doubt over the viability of the Lemon test, the
Sixth Circuit held it still applied to current Establishment Clause cases). The government must
satisfy all three prongs of the Lemon test. ACLU of Ohio Found., Inc. v. DeWeese, 633 F.3d 424,
431 (6th Cir. 2011).
1. Primary Purpose
“In determining the government’s purpose . . . a [government actor’s] stated reasons will
generally get deference.” DeWeese, 633 F.3d at 431. The government’s purpose “has to be
genuine, not a sham, and not merely secondary to a religious objective.” Id. However, the
purpose does not have to be exclusively secular, and can include religious components as long as
the activity was not “motivated wholly by religious considerations.” See Lynch v. Donnelly, 465
U.S. at 680–81 (1984).
Here, according to the uncontroverted evidence Defendants submitted, the Bill Glass
“BEHIND THE WALLS” event was structured around the primary purpose of providing free
entertainment to the inmates, with a religious component that was voluntary. (Decl. Ex. A, at
7,10, ECF No. 20-1.) At the event which gave rise to this case, a “Bill Glass volunteer juggled
bowling pins and told jokes” for about thirty minutes. (Id. at 10.) After the entertainment
portion, the juggler “shared his personal story and asked if any of the inmates wanted to learn
about Christianity.” (Id.) Any inmate who wanted to learn more could join a small group and
talk privately with other Bill Glass volunteers. The conversations, however, were voluntary, and
“Plaintiff was not required to participate[.]” (Id.) In addition, even though the event had
religious components to it, “[s]imply having religious content or promoting a message consistent
with a religious doctrine does not run afoul of the Establishment Clause.” Van Orden v. Perry,
545 U.S. 677, 690 (2005). The undersigned finds that the uncontroverted evidence Defendants
presented reflects that the event was primarily for the secular purpose of entertainment.
2. Primary Effect
In the Sixth Circuit, the “endorsement test” is used to clarify the second prong of the
Lemon test. See Smith v. Jefferson Cty. Bd. of Sch. Com’rs, 788 F.3d 580, 587 (6th Cir. 2015).
Under the “endorsement test,” the Court must first determine if the state’s actions were coercive.
Id. at 589. “[T]he state endorses religion when it coerces participation in a religious activity.
Coercion not only includes securing participation through rules and threats of punishment, but
also includes imposing public pressure, or peer pressure, on individuals.” Id. If the Court finds
there was no endorsement, the Court must then look to whether “a reasonable observer would
think that the activity is a governmental endorsement of religion.” Id. at 590 (citing Capital
Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 780 (1995) (O’Connor, J., concurring
in part and concurring in the judgment)).
Here, even though the event was mandatory for all inmates to attend, the record reflects
that the purpose for nearly all of the mandatory portion of the event was entertainment; the band
played a variety of songs, and any religious component was reserved for a brief period at the end
of the event. (Decl. Ex. A, at 7, ECF No. 20-1.) Additionally, Defendant Smith’s declaration
reveals that Plaintiff was permitted to sit on a baseball bench about 150 yards away from the
event. (Decl. Ex. C, at 7, ECF No. 20-1.)
Further, a review of the record reveals that purpose of requiring inmates’ attendance was
not to infringe on Plaintiff’s First Amendment rights or coerce him into converting to
Christianity, but rather for safety and security reasons. As Defendants explain, CRC is a levelthree prison and because of this status “all inmates except cadre inmates are escorted together to
food service and recreation.” (Decl. Ex. C, at 7, ECF No. 20-1.) It is widely recognized that
“lawful incarceration brings about the necessary withdrawal or limitation of many privileges and
rights, a retraction justified by the considerations underlying our penal system.” Pell v.
Procunier, 417 U.S. 817, 822 (1974) (quoting Price v. Johnston, 334 U.S. 266, 285 (1948))
(“[A] prison inmate retains those First Amendment rights that are not inconsistent with his status
as a prisoner or with the legitimate penological objectives of the corrections system.”) Thus, to
the extent the event had religious components, the undersigned finds the mandatory nature was
necessary due to safety and security concerns.
Finally, while coercion can be established by public or peer-pressure, that argument is not
convincing in this case because all of the inmates were adults, and they were not forced to
participate in the small-group activities. Cf. Lee v. Weisman, 505 U.S. 577, 592 (1992) (“[T]here
are heightened concerns with protecting freedom of conscience from subtle coercive pressure in
the elementary and secondary public schools.”).
Upon finding no coercion, the Court must also determine “whether or not a reasonable
observer would believe that a particular action constitutes an endorsement of religion by the
government.” ACLU of Ohio Found., Inc. v. Ashbrook, 375 F.3d 484 (6th Cir. 2004). The
government’s actions are evaluated in context and objectively under a reasonable person
standard. ACLU of Ky., 432 F.3d at 636–67; Smith, 788 F.3d at 590 (finding no endorsement
when religious references only de minimus interactions with a religious institution).
Here, a reasonable observer is deemed to have knowledge about the context and history
of the actions. Based on the record evidence, a reasonable observer would take into account the
context of the event, and they would recognize that the mandatory nature was due to prison
safety concerns. See Pell, 417 U.S. at 822. Further, a reasonable observer, after seeing the
event, would most likely conclude the event was for secular purposes and not to force a certain
religious belief on the inmates. (See Decl. Ex. A, at 7, ECF No. 20-1.) Once again, Plaintiff has
supplied no evidence to the contrary. In sum, the evidence provided by Defendants reflects that
a reasonable person, observing the context in the entirety, would find that the event was not an
endorsement of religion by the state.
3. Excessive Entanglement
Under Lemon’s third prong, a Court must look at “the character and purposes of the
institutions that are benefitted, the nature of the aid that the State provides, and the resulting
relationship between the government and the religious authority.” Lemon, 403 U.S. at 615.
Entanglement can also arise when the relationship is “comprehensive, discriminating, and
continuing state surveillance[.]” Smith, 788 F.3d at 593-95 (quoting Lemon, 403 U.S. at 625)
(for example, money exchanges between the government and the religious entity, state
delegation of power to the religious entity, or providing aid to religious entities all constituted
Establishment Clause violations).
Here, there exists no excessive entanglement between the state and religion. This was a
one-time, temporal event held on July 17-18, 2015. (Decl. Ex. A, at 7, ECF No. 20-1.) CRC did
not pay any money to Bill Glass for the event. (Id.) The Bill Glass volunteers were not given
any control over the inmates nor delegated any duties traditionally held by the state or prison
officials. In short, nothing in the record suggests entanglement, let alone excessive
entanglement. Thus, the third prong of Lemon is satisfied.
In sum, Defendants have established that no genuine dispute as to any material fact
remains such that they are entitled to judgment as a matter of law. Consequently, it is
unnecessary to consider Defendants’ alternative bases in favor of summary judgment.
Accordingly, the undersigned hereby RECOMMENDS judgment in Defendant Warden
Chuvalis’ favor be entered.
For the foregoing reasons, it is RECOMMENDED that Defendants’ Motion for
Summary Judgment (ECF No. 20) be GRANTED such that Plaintiff’s claim against Defendant
Smith be DISMISSED WITHOUT PREJUDICE for failure to comply with the PLRA’s
exhaustion requirements, and judgment be awarded against Plaintiff and in favor of Defendant
Warden Chuvalas with respect to the claim Plaintiff brought against Defendant Warden
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s). A Judge of this Court shall make a de novo
determination of those portions of the Report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further
evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. §
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
s/ Chelsey M. Vascura _______
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE
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