Al-Fuyudi v. Corrections Corporation of America et al
Filing
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ORDER granting 60 Motion for Summary Judgment; adopting Report and Recommendations re 77 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 3/22/2016. (mb)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
KIFAH MUHAMMADU AL-FUYUDI,
Plaintiff,
v.
CORRECTION CORPORATION OF
AMERICA, et al.,
Defendants.
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Case No. CIV-12-1170-D
ORDER
This matter is before the Court for review of the Report and Recommendation [Doc.
No. 77], issued by United States Magistrate Judge Bernard M. Jones pursuant to 28 U.S.C.
§ 636(b)(1)(B) and (C). Judge Jones recommends, for reasons stated more fully below, that
summary judgment be granted to Defendants Corrections Corporation of America (“CCA”),
B. Barton, Sergeant Findlay, L. Lacy, and J. Yates on claims asserted by Plaintiff under
42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”),
42 U.S.C. § 2000cc-1 et seq.1 Plaintiff has filed a timely written objection. Thus, the Court
must make a de novo determination of portions of the Report to which a specific objection
is made, and may accept, modify, or reject the recommended decision. See 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72(b)(3). Plaintiff has waived further review of all issues not
1
A second Report and Recommendation [Doc. No. 78] recommending dismissal of Plaintiff’s action
against other defendants for lack of service was adopted by Order of February 26, 2016 [Doc. No. 80].
specifically raised in his objection. See United States v. 2121 East 30th Street, 73 F.3d 1057,
1060 (10th Cir. 1996); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
Plaintiff, a state prisoner appearing pro se and in forma pauperis, seeks injunctive and
declaratory relief and damages based on alleged unlawful conditions of confinement at a
private prison, the North Fork Correctional Facility (“NFCF”), operated by CCA in Sayre,
Oklahoma.
Plaintiff is an inmate of the California Department of Corrections and
Rehabilitation (“CDCR”), and was previously confined at NFCF pursuant to a contract
between that agency and CCA. Plaintiff’s obligation to exhaust administrative remedies
before filing suit under § 1983 and RLUIPA (see 42 U.S.C. §§ 1997e(a) and 2000cc-2(e))
required him to comply with California regulations and utilize CDCR’s grievance system.
Plaintiff practices the Muslim faith. He claims NFCF officials violated RLUIPA and
§ 1983 by failing to provide a proper and nutritionally adequate halal diet, by denying him
the right to wear a kufi at all times, and by not providing copies of religious materials, access
to Muslim television programs, and additional chapel time for Muslim services. Plaintiff also
claims under § 1983 that he was deprived of property without due process when his
television, radio, and typewriter were delivered to him at NFCF in broken condition, and
that he was subjected to unconstitutional conditions of confinement due to inadequate heat
in his cell and plumbing problems that caused water damage to his books and tapes and
disrupted water service to his cell for several days.
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In a thorough, 53-page Report and Recommendation, Judge Jones first finds as a
jurisdictional matter that Plaintiff’s claims for injunctive and declaratory relief are moot due
to Plaintiff’s transfer from NFCF to a California facility (see R&R, pp.6-7), and as a judicial
screening matter under 28 U.S.C. § 1915(e) and § 1915A that RLUIPA does not authorize
individual liability for money damages. See id. pp.19-20. Addressing the issues presented
for decision pursuant to Fed. R. Civ. P. 56, Judge Jones makes the following findings:
1) Plaintiff failed to exhaust the administrative process for certain claims regarding his halal
diet and the destruction of his personal property, as shown by a chart in footnote 8 on page 11
of the Report (id., pp.12-17);2 2) assuming RLUIPA permits the recovery of money damages
from a private corporation, Plaintiff has failed to identify a policy or custom promulgated by
CCA that would create liability (id. pp.20-22 & 51); 3) alternatively, Plaintiff’s RLUIPA
claims fail on the merits because he has not shown a substantial burden on his religious
exercise from the conduct alleged in his exhausted claims (id. pp.22-35);3 4) Plaintiff has
failed to establish a § 1983 claim for violation of the Equal Protection Clause based on
disparate treatment of Muslim inmates with respect to religious materials, television, or
chapel time (id. pp.37-41); 5) Plaintiff has failed to establish a § 1983 claim for a violation
of the Eighth Amendment based on heating and plumbing problems in his cell (id. pp.41-48);
2
Although the chart serves to identify Plaintiff’s claims, the corresponding grievances, and
Defendants’ position regarding exhaustion, Judge Jones finds Defendants’ position to be correct for reasons
subsequently explained in the Report.
3
Similarly, with regard to any parallel § 1983 claim asserting a violation of Plaintiff’s First
Amendment right to free exercise of religion, Judge Jones concludes the claim would fail due to Plaintiff’s
failure to demonstrate a substantial burden on a sincerely held religious belief. See R&R, p.36, n.3.
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and 6) Plaintiff has failed to establish a § 1983 claim for a violation of the Due Process
Clause based on the destruction of his personal property (id. pp.48-51). The last finding
supports an alternative disposition of Plaintiff’s property claim, which is recommended for
dismissal as unexhausted. Further, in reaching the conclusion that summary judgment should
be granted, Judge Jones finds Plaintiff’s argument that outstanding discovery requests
prevent a full response to Defendants’ Motion fails to satisfy Rule 56(d) and is insufficient
to defer or delay a ruling, and Judge Jones recommends the disposition of Plaintiff’s Equal
Protection claim even though it was not expressly included in Defendants’ Motion because
Plaintiff will receive sufficient notice to satisfy Rule 56(f). See id., pp.4-6 & p.38 n.32.
In his Objection, Plaintiff challenges the propriety of granting summary judgment to
Defendants, without specifying any particular defendant or claim and without identifying any
procedural defect under Rule 56. Plaintiff does specifically object, however, to Judge Jones’
finding regarding administrative exhaustion. Plaintiff admits “a couple of claims” are
unexhausted, but he contends exhaustion should be excused because the administrative
remedy was rendered unavailable by Defendant Barton’s refusal to process Plaintiff’s appeal
forms. See Pl.’s Obj., Mem. [Doc. No. 79-1], p.1 (ECF page numbering). Plaintiff relies on
a portion of his summary judgment response (citing page 6, ¶ 10), a declaration of a guard
named “Bolivta,” and exhibits regarding grievance appeals related to his property damage
claim. Id. pp.1-2, Exs. A & B [Doc. Nos. 79-2 & 79-3].4 Plaintiff also contends exhaustion
4
Judge Jones expressly considers most of these items. See R&R, p.13 (discussing cited portion of
Plaintiff’s response brief and Bolivta declaration); id. p.16 (discussing Form 22 [Doc. No. 72-2], p.2).
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of his property claim is shown by an informal grievance response promising that broken
items would be replaced.
Upon de novo consideration of the issue of administrative exhaustion, the Court fully
concurs in Judge Jones’ conclusion that Plaintiff has not demonstrated a genuine dispute of
material fact exists as to whether his failure to exhaust additional grievances regarding his
halal diet should be excused. Plaintiff has not presented properly supported facts showing
the administrative appeals process was unavailable with respect to these grievances due to
“the action or inaction of prison officials.” See Aquilar-Avellaveda v. Terrell, 478 F.3d 1223,
1225 (10th Cir. 2007). As to Plaintiff’s property damage claim, the Court reaches the same
conclusion. Plaintiff was expressly instructed how to submit a grievance appeal to CDCR
regarding his property claim, but the record shows he failed to submit the required documents
in a timely manner. The additional documents presented with Plaintiff’s Objection do not
alter this finding or demonstrate facts to show Plaintiff was prevented by the action or
inaction of prison officials from making a timely submission. Although not expressly stated
by Judge Jones, however, the Court finds that the proper disposition of a claim for which
Plaintiff has failed to exhaust administrative remedies is a dismissal without prejudice of the
claim. See Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009).
Plaintiff also objects to Judge Jones’ finding that he has failed to demonstrate a
genuine dispute of material fact regarding an essential element of a RLUIPA claim, namely,
that Defendants’ challenged conduct imposed a substantial burden on Plaintiff’s exercise of
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religious beliefs. Plaintiff’s argument in support of this objection, like his summary
judgment response, is conclusory. He fails to identify facts that would establish a substantial
burden on his religious exercise arising from the conduct at issue in his exhausted RLUIPA
claims – a deficient halal meal received on November 30, 2011; limiting Plaintiff’s wearing
of a kufi to prayer times; and denying Plaintiff copies, a Muslim cable channel, and more
days of chapel time. Upon de novo consideration, the Court finds for the reasons fully
explained by Judge Jones that Defendants are entitled to summary judgment on these claims.
Further, Plaintiff has failed to show a basis of liability for damages against CCA or any
individual defendant on his exhausted RLUIPA claims, and his requests for injunctive and
declaratory relief are moot.
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No. 77]
is ADOPTED. Plaintiff’s claims for injunctive and declaratory relief are dismissed as moot;
Plaintiff’s claims under RLUIPA and § 1983 regarding exercise of his religious beliefs,
except as asserted in Grievance Nos. NF-12-11-004 and NF-11-05-001, are dismissed for
failure to exhaust administrative remedies; and Plaintiff’s § 1983 claim for destruction of his
personal property is dismissed for failure to exhaust administrative remedies. Defendants
Corrections Corporation of America, B. Barton, Sergeant Findlay, L. Lacy, and J. Yates are
entitled to summary judgment on all other claims asserted in Plaintiff’s Complaint.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment [Doc.
No. 60] is GRANTED, as set forth herein. A final judgment shall be entered in accordance
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with this Order and the Order of February 26, 2016, dismissing Plaintiff’s action against
other defendants for lack of service of process.
IT IS SO ORDERED this 22nd day of March, 2016.
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