Muhammad v. Ramirez et al

Filing 39

ORDER RULING ON 32 REPORT AND RECOMMENDATION It is ordered that Defendants' objections are overruled, the Report and Recommendation is adopted, and Defendants' motion to dismiss is denied. Signed by Honorable Patrick Michael Duffy on 09/10/2018. (egra, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Dyrell Muhammad,

)
)
Plaintiff,
)
)
v.
)
)
Gio Ramirez, Warden FCI Williamsburg; )
Nanada Middleton, Supervisory Chaplain )
at FCI Willimabsburg; individually and in )
their official capacities;
)
)
Defendants.
)
____________________________________)

C.A. No.: 2:17-cv-2639-PMD-MGB
ORDER

This matter is before the Court on the objections of Defendants Gio Ramirez and Nanada
Middleton to United States Magistrate Judge Mary Gordon Baker’s Report and Recommendation
(“R & R”) (ECF Nos. 35 & 33). For the reasons stated herein, the Court overrules Defendants’
objections, adopts the R & R, and denies Defendants’ motion to dismiss.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff is a member of the Nation of Islam and was the designated representative of Nation
of Islam (“NOI”) members at FCI Williamsburg when he was housed there. Plaintiff, proceeding
pro se, alleges that his constitutional rights and statutory rights were violated when Defendants
refused to provide him with prayer oils to be used by himself and other members of the Nation of
Islam. Plaintiff alleges that he requested the prayer oil from Defendant Middleton, a chaplain, on
June 6, 2017, and she refused, stating that NOI members are not Muslims. Plaintiff and Middleton
attempted to mediate the matter but were unsuccessful. Plaintiff then sent a letter to the United
States Department of Justice about his request, and sent copies of the letter to Defendant Ramirez
and elected officials. He did not receive a response. On June 26, Plaintiff alleges that he spoke to

Mr. McCrae, the executive assistant to Ramirez.1 McCrae told Plaintiff to put his complaint in
writing. Plaintiff asked if he should file a “Request for Administrative Remedy,” but McCrae told
him not to because “we want to keep this a local matter.” (Compl., ECF No. 1, at 5.) Plaintiff
alleges that McCrae stated the matter could not be resolved through the Administrative Remedy
Program. Plaintiff followed McCrae’s instructions, wrote out his complaint, and gave it to
McCrae. The next day, after Plaintiff finished an NOI service, Middleton allegedly confronted
him about speaking to Ramirez about her, then ordered him to leave the chapel. The following
day, he was placed in the special housing unit. He was released from the unit two weeks later with
no explanation. Plaintiff believes he was placed in the special housing unit at the direction of
Middleton. Plaintiff seeks monetary damages as well as injunctive and declaratory relief.
On February 26, 2018, Defendants filed a motion to dismiss for lack of subject matter
jurisdiction, arguing Plaintiff’s claims were barred by sovereign immunity and his failure to
exhaust remedies. Plaintiff responded on March 29, and Defendants did not reply. On June 25,
the Magistrate Judge issued her R & R recommending that Defendants’ motion be denied.
Defendants objected on July 9. Plaintiff replied on July 27. Accordingly, this matter is now ripe
for review.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this Court. The R & R has no
presumptive weight, and the responsibility for making a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). Parties may make written objections to
the Magistrate Judge’s proposed findings and recommendations within fourteen days after being
served with a copy of the R & R. 28 U.S.C. § 636(b)(1). This Court must conduct a de novo

1.
Plaintiff was told by Ramirez that McCrae represented Ramirez in all points in this inquiry and McCrae was
Plaintiff’s point of contact.

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review of any portion of the R & R to which a specific objection is made, and the Court may
accept, reject, or modify the Magistrate Judge’s findings and recommendations in whole or in part.
Id. Additionally, the Court may recommit the matter to the Magistrate Judge with instructions.
Id. A party’s failure to object is taken as the party’s agreement with the Magistrate Judge’s
conclusions. See Thomas v. Arn, 474 U.S. 140, 151-52 (1985). Absent a timely, specific
objection—or as to those portions of the R & R to which no specific objection is made—this Court
“must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.’” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
DISCUSSION
Defendants challenge Plaintiff’s claim pursuant to Rule 12(b)(1), arguing that it fails to
allege facts on which subject matter can be based. “When a Rule 12(b)(1) motion challenge is
raised to the factual basis for subject matter jurisdiction, the burden of proving subject matter
jurisdiction is on the plaintiff.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States,
945 F.2d 765, 768 (4th Cir. 1991). “The plaintiff is ‘afforded the same procedural protection as
she would receive under a Rule 12(b)(6) consideration,’ wherein ‘the facts alleged in the complaint
are taken as true . . . .’” Beck v. McDonald, 848 F.3d 262, 270 (4th Cir.), cert. denied sub nom.
Beck v. Shulkin, 137 S. Ct. 2307 (2017). “The [defendant] should prevail only if the material
jurisdictional facts are not in dispute and the [defendant] is entitled to prevail as a matter of law.”
Richmond, Fredericksburg & Potomac, 945 F.2d at 768.
Defendants do not raise any objections regarding the Magistrate Judge’s findings on their
sovereign immunity argument. The Court reviewed that portion of the R & R for clear error and

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found none. However, Defendants make two objections to the Magistrate Judge’s conclusion that
Plaintiff’s claim is not barred due to his failure to exhaust remedies.
First, Defendants argue that two cases cited by the Magistrate Judge—Wilcox v. Brown,
877 F.3d 161, 167 (4th Cir. 2017), and Custis v. Davis, 851 F.3d 358, 361–62 (4th Cir. 2017)—
only apply when a district court sua sponte dismisses a plaintiff’s claim for failure to exhaust
administrative remedies. They argue that the Magistrate Judge’s reliance on these cases is
misplaced because they plead the affirmative defense of failure to exhaust remedies. While the
Court acknowledges the procedural difference between Wilcox and Custis and the present case,
the Court finds no indication that the Magistrate Judge improperly relied on them. As the
Magistrate Judge indicated, these cases stand for the proposition that a plaintiff’s Prison Litigation
Reform Act “complaint may be dismissed for non-exhaustion ‘in the rare case where failure to
exhaust is apparent from the face of the complaint.’” Wilcox, 877 F.3d at 167 (citing Anderson v.
XYZ Corr. Health Servs., Inc., 407 F.3d 674, 682 (4th Cir. 2005)). To the extent that the Magistrate
Judge suggested that a facial failure to exhaust is the only grounds for dismissal, rather than a
sufficient grounds for dismissal, that error is harmless. That suggestion arises in the Magistrate
Judge’s response to Defendant’s reliance on Gorbey v. United States, No. 0:16-cv-3112-JFA-PJG,
2017 WL 3638223, at *1 (D.S.C. July 6, 2017), report and recommendation adopted, No. 0:16cv-3112-JFA-PJG, 2017 WL 3620140 (D.S.C. Aug. 22, 2017). The Court agrees with the
Magistrate Judge that Gorbey does not establish that Defendants are entitled to dismissal because
that Report and Recommendation arose from cross motions for summary judgment. Id. Further,
the plaintiff in Gorbey did not allege he was told not to file a grievance form or that the matter
could not be resolved through a particular grievance proceeding, as Plaintiff here alleges.

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Second, Defendants object to the Magistrate Judge’s conclusion that Plaintiff’s complaint
establishes that an administrative remedy was unavailable to him under Ross v. Blake, which
provides an exception to the exhaustion requirement when “administrators thwart inmates from
taking advantage of a grievance process through machination, misrepresentation or intimidation.”
136 S. Ct. 1850, 1854 (2016). The Magistrate Judge found that Defendants’ conduct fell squarely
within this exception because Plaintiff alleges that he was instructed not to file a “Request for
Administrative Remedy” and that the matter could not be resolved through the Administrative
Remedy Program.

Defendants argue that Plaintiff must provide more evidence than these

assertions, but the Court agrees with the Magistrate Judge that, at the motion to dismiss stage, the
Court must take the allegations of the complaint as true. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
CONCLUSION
For the foregoing reasons, it is ORDERED that Defendants’ objections are
OVERRULED, the R & R is ADOPTED, and Defendants’ motion to dismiss is DENIED.
AND IT IS SO ORDERED.

September 10, 2018
Charleston, South Carolina

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