Atomanczyk v. Texas Department Of Criminal Justice

Filing 46

MEMORANDUM OPINION AND ORDER denying 38 MOTION for Summary Judgment Limited to Exhaustion of Administrative Remedies. (Advisement due by 11/20/2017.) (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED
November 06, 2017

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

AHARON L. ATOMANCZYK,
TDCJ #736187,

§
§
§
§
§
§
§
§
§
§
§

Plaintiff,
V.

TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, et al.,
Defendants.

David J. Bradley, Clerk

CIVIL ACTION NO. H-17-0719

MEMORANDUM OPINION AND ORDER

State inmate Aharon L. Atomanczyk has filed a First Amended
Complaint

for

Attorneys'
against

Injunctive

Fees

the

and Declaratory Relief,

("Amended

Texas

Complaint")

Department

of

(Docket

Criminal

Damages,

Entry

Justice

No.

and
21),

("TDCJ"),

Executive Director Bryan Collier, and Senior Warden Wayne Brewer of
the Stiles Unit

in Beaumont.

Now pending is Defendants Texas

Department of Criminal Justice, Bryan Collier, and Wayne Brewer's
Motion for Summary Judgment Limited to Exhaustion of Administrative
Remedies ("Defendants' MSJ")

(Docket Entry No. 3 8) .

Atomanczyk has

filed Plaintiff's Response in Opposition to Defendants' Motion for
Summary Judgment Limited to Exhaustion of Administrative Remedies
("Plaintiff's
defendants
Justice,

Response")

have

filed

Bryan Collier,

(Docket

Entry

No.

43) ,

Defendants

Texas

Department

to
of

which

the

Criminal

and Wayne Brewer's Reply in support of

their

Motion

for

Administrative
No. 44).

Summary

Remedies

Judgment

Limited

("Defendants'

to

Exhaustion

Reply")

(Docket

of

Entry

After considering all of the pleadings, the exhibits, and

the applicable law,

the court will deny Defendants' MSJ for the

reasons explained below.

I.

Background and Procedural History

This case concerns Atomanczyk's accommodations and access to
religious

services

while

incarcerated

in

TDCJ.

describes himself as an "Ultra-Orthodox Jewish"

Atomanczyk

inmate, 1 who is

"permanently disabled" as the result of multiple sclerosis. 2

From

2013 to 2015 Atomanczyk was assigned to the Stringfellow Unit in
Rosharon, where he participated in TDCJ' s "Enhanced Jewish Services
Program. " 3

The Enhanced Jewish Services Program,

which is only

available at the Stringfellow Unit, reportedly features a "kosher
meals program,

Jewish studies program,

prayer services program. " 4
Atomanczyk had access

chaplaincy program,

and

Thus, as a participant in this program,

to meals

prepared

in

"a kosher

kitchen

providing a nutritionally sufficient kosher diet, weekly communal

Amended Complaint, Docket Entry No. 21, p. 4 ~ 13.
For
purposes of identification, all page numbers refer to the
pagination assigned to each docket entry by the court's electronic
filing system, CM/ECF.
1

2

Id. at 5 ~ 17.

4

Id.
-2-

Shabbat prayer services at the direction of an ordained Orthodox
rabbi, daily communal prayer services, weekly rabbinic visits, and
on-site chaplaincy services." 5
To accommodate Atomanczyk' s disability, which is "degenerative
and will worsen over time," prison classification officials have
limited

his

housing

operated by TDCJ. 6

options

to

"single-level

medical

units"

As a result, Atomanczyk was transferred from

the Stringfellow Unit to the Jester III Unit in December of 2015. 7
The Jester III Unit, however, only offers a "Basic Jewish Services
Program,"

which does not offer inmates the same opportunity to

exercise their religious beliefs as the Enhanced Jewish Services
Program that is available only at the Stringfellow Unit. 8
notably, the Jester III Unit lacks a kosher kitchen.

Most

9

On September 10, 2016, Atomanczyk filed a Step 1 Grievance to
challenge
Unit. 10

5

the

conditions of his

confinement at

the Jester III

Atomanczyk complained that he was being denied a kosher

Id. at 3-4

~

11.

Id. at 5 ~ 17. Atomanczyk explains that his symptoms include
dizzy spells,
difficulty with balance,
lethargy,
recurring
seizures, and vision problems, which restrict him from assignment
to second or third-floor housing, as well as bunk beds, because of
an inability to climb.
Id. ~~ 17, 18.
6

~ 19.

7

Id.

8

Id. at 3

~

10, 6-7

9

Id. at 3

~

11.

~ 24.

10

Step 1 Grievance #2017007211, Exhibit A to Defendants' MSJ,
Docket Entry No. 38-1, pp. 5-6.
-3-

diet as dictated by the tenets of his Jewish faith.

11

Atomanczyk

noted that he had previously followed a kosher diet and worked in
the kosher kitchen at the Stringfellow Unit, but that he had been
removed from that facility because of medical restrictions that
disability . 12

Atomanczyk

complained further that he was unable to practice

"other basic

were

imposed

as

the

result

of

his

Commands of obligations to all Jewish men," such as the ability to
possess

and

wear

a

tefillin

or

a

kippah

(which

are

items

traditionally worn by Orthodox Jewish men), and to gather daily for
study and prayer as a community . 13
On October 11, 2016, a prison official at the Jester III Unit
responded to the Step 1 Grievance and advised Atomanczyk that the
Chaplaincy Department would fill out an "HQ-150" to address his
concerns. 14

Atomanczyk explains that an HQ-150 is a form used to

present a complaint to the "TDCJ Religious Practices Committee" in
Huntsville. 15

According to Atomanczyk, TDCJ Chaplain Thomas Lowe

helped him fill

out and submit an HQ-150

request

to the TDCJ

Religious Practices Committee detailing Atomanczyk's past involvement in the Enhanced Jewish Services Program, his exclusion from
nid. at 5.

15

Verified Original Complaint [for] Declaratory Judgment and
Injunctive Relief Only ("Original Complaint"), Docket Entry No. 1,
p. 7 ~ 45.
-4-

the program due to his medical restrictions, and the need for TDCJ
to change
Pending

its policies

resolution

of

to accommodate his
this

HQ-150

religious beliefs . 16

request,

the

official

who

answered Atomanczyk's Step 1 grievance advised him that he would
have

to

"regular

choose

from

the

tray,

meat

free

meantime. 17
requests,

three menu plans
tray

and

pork

offered by TDCJ
free

tray")

in

(a
the

The official did not address any of Atomanczyk's other
commenting

only

that

" [n] o

further

action

[was]

warranted." 18

16

Declaration of Plaintiff Aharon L. Atomanczyk in Support of
Response in Opposition to Defendants' Motion for Summary Judgment
Limited to Exhaustion of Administrative Remedies ( "Atomanczyk
Declaration"), Exhibit 2 to Plaintiff's Response, Docket Entry
No. 43-9, p. 4 , 18. According to TDCJ Administrative Directive
AD- 07. 3 0, the HQ-150 is a "Religious Practice Issue Assessment
form" used to evaluate requests by inmates for "religious programs,
services, or accommodations."
TDCJ Administrative Directive
AD 07.30, Exhibit 1D to Plaintiff's Response, Docket Entry
No. 43-6, p. 4.
It appears that the HQ-150 process affords an
additional layer of administrative review apart from the grievance
process. See,~~ Williams v. Bedison, Civil No. 2:16-0020, 2017
WL 1102884, at *2 (N.D. Tex. March 3, 2017)
("According to
regulation, offenders submit an I-60 request, the chaplain of the
unit reviews that request and interviews the offender, and for
religious practices that have not been previously addressed, the
chaplain should complete an HQ-150 form and submit that form to
Chaplaincy Headquarters."); Gooden v. Crain, Civil No. 6:04-127,
2008 WL 3271557, at *3 (E.D. Tex. Aug. 6, 2008) ("If an inmate
submits a request for an accommodation, then an investigation
{HQ-150)
is
conducted
involving
the
inmate
seeking
an
accommodation, the wardens where the inmate is located and the
Religious Practices Committee.") (summarizing trial testimony by
Billy Pierce, the Director of Chaplaincy for TDCJ) . Neither party
has presented any documentation related to the process that was
undertaken in response to Atomanczyk's HQ-150 request.
17

Step 1 Grievance #2017007211, Exhibit A to Defendants' MSJ,
Docket Entry No. 38-1, p. 6.
1sid.

-5-

On October 15,
appeal,

2016,

Atomanczyk filed a

Step 2 Grievance

arguing that TDCJ was placing an "undue burden" on the

right to freely practice his religion because he was excluded from
a

"program"

as the result of his disability . 19 Noting that the

program described in his Step 1 Grievance was not available at an
accessible location, Atomanczyk added that he and other inmates
with disabilities were

"segregated in units without equivalent

programs" in violation of the Americans with Disabilities Act. 20
On November 17, 2016, a regional director rejected the Step 2
Grievance and responded that the HQ-150 process was "still pending
from

the

Step

1

Huntsville

Grievance. 21

Committee"
The

regarding

regional

Atomanczyk' s

director

added

that

initial
prison

officials needed "additional time for this process to be approved"
and concluded that "[n]o further action
matter. " 22

According to Atomanczyk,

[was]

warranted in this

the TDCJ Religious Practices

Committee failed to resolve any of his complaints during the HQ-150
process and has never issued any formal response. 23

19

Step 2 Grievance #2017007211, Exhibit A to Defendants' MSJ,
Docket Entry No. 38-1, pp. 3-4.
20

Id. at 3.

21

Id. at 4.

0riginal Complaint, Docket Entry No. 1, p. 7 ~ 46; Atomanczyk
Declaration, Exhibit 2 to Plaintiff's Response, Docket Entry
No. 43-9, p. 4.
23

-6-

On March 1, 2017, Atomanczyk filed a prose Original Complaint
in this case. 24

Atomanczyk alleged that TDCJ violated the Religious

Land Use and Institutionalized Persons Act

(the

"RLUIPA"),

the

Americans with Disabilities Act ("ADA"), and the Rehabilitation Act
( "RA") ,

when

it

assigned

him

to

the

Jester

III

Unit,

which

accommodated his disability, but effectively excluded him from the
Enhanced Jewish Services Program and the availability of kosher
meals offered at the Stringfellow Unit. 25

Atomanczyk requested

access to kosher food and the Enhanced Jewish Services Program in
all TDCJ facilities.

26

In May of 2017 Atomanczyk was transferred to the Stiles Unit
in Beaumont, which houses disabled prisoners, but which also offers
only a Basic Jewish Services Program without a kosher kitchen. 27
At around the same time,

Atomanczyk retained the assistance of

counsel, who filed an Amended Complaint on his behalf on June 23,
2017.

28

The Amended Complaint filed by Atomanczyk added TDCJ Executive
Director Bryan Collier and Stiles Unit Senior Warden Wayne Brewer
in their official capacities. 29

The Amended Complaint asserts that

24

0riginal Complaint, Docket Entry No. 1, p. 1.

25

Id. at 4-10.

26

Id. at 10-11.

27

Amended Complaint, Docket Entry No. 21, p. 3

28

Id. at 13.

29

Id. at 3

~~

7, 8.
-7-

~ 10,

p. 5

~ 19.

the defendants have violated the RLUIPA,

the ADA, and the RA, by

excluding Atomanczyk from the Enhanced Jewish Services Program on
account of his disability. 30
that,

by transferring him to

Atomanczyk contends in particular
the Stiles Unit,

which like

the

Jester III Unit offers only a Basic Jewish Services Program, 31 he
has been denied access to "kosher meals (let alone a nutritionally
sufficient kosher diet), weekly communal Shabbat prayer services at
the direction of an ordained Orthodox rabbi, daily communal prayer
services, weekly rabbinic visits, and on-site chaplaincy services
all

of

which

non-disabled

Jewish

prisoners

receive

at

the

Stringfellow Unit" through the Enhanced Jewish Services Program. 32
Arguing that Atomanczyk made no specific mention of access to
a kosher diet,

weekly communal Shabbat prayer services,

weekly

rabbinic visits, or on-site chaplaincy services in both his Step 1
and Step 2 Grievances,

the defendants contend that Atomanczyk's

Amended Complaint must be dismissed because he did not exhaust
administrative remedies with respect to all of the claims that he
raises in his Amended Complaint. 33
for

Therefore, the defendants move

summary judgment on the grounds

comply

with

the

exhaustion

that Atomanczyk failed to

requirement

Litigation Reform Act ("PLRA"), 42 U.S.C.

found
§

in

1997e(a).

30

Id. at 9-12.

31

Id. at 3

32

Id. at 5-6

33

Defendants' MSJ, Docket Entry No. 38, pp. 4-5.

~ 10.
~

19.

-8-

the

Prison

II.
The Defendants'

Standard of Review

MSJ is governed by Rule 56 of the Federal

Rules of Civil Procedure.

Under this rule a reviewing 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);

Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2552 (1986).

see also
A fact is

"material" if its resolution in favor of one party might affect the
outcome of

the suit under governing law.

Anderson v.

Lobby, Inc., 106 S. Ct. 2505, 2510 (1986).

Liberty

An issue is "genuine"

if the evidence is sufficient for a reasonable jury to return a
verdict for the nonmoving party.

Id.

In deciding a summary judgment motion,

the reviewing court

must "construe all facts and inferences in the light most favorable
to the nonmoving party."

Dillon v. Rogers, 596 F.3d 260, 266 (5th

Cir. 2010)

(internal quotation marks and citation omitted).

non-movant

cannot

avoid

summary

judgment

"[c)onclusional allegations and denials,
inferences,

unsubstantiated

argumentation."

Jones v.

344, 348 (5th Cir. 2012)

simply by presenting

speculation,

assertions,

Lowndes County,

The

improbable

and

legalistic

Mississippi,

678 F. 3d

(quoting TIG Ins. Co. v. Sedgwick James of

Washington, 276 F.3d 754, 759 (5th Cir. 2002)); see also Little v.
Liquid Air Corp., 37 F. 3d 1069, 1075 (5th Cir. 1994)

(en bane)

(a

non-movant cannot demonstrate a genuine issue of material fact with
conclusory

allegations,

unsubstantiated
-9-

assertions,

or

only

a

scintilla of evidence) .

If the movant demonstrates an "absence of

evidentiary support in the record for the nonmovant's case," the
burden shifts to the nonmovant to "come forward with specific facts
showing that there is a genuine issue for trial."
Young County,

Texas,

866 F.3d 274,

279

(5th Cir.

Sanchez v.
2017)

Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812

(citing
(5th Cir.

2010)); see also Matsushita Electric Industrial Co., Ltd. v. Zenith
Radio Corp., 106 S. Ct. 1348, 1356 (1986).
III.
The

PLRA,

Exhaustion of Administrative Remedies

which governs

this

case,

requires

prisoners

to

exhaust available administrative remedies before filing suit in
federal court.
emphasized

See 42 U.S.C.

that

administrative

1997e(a)

§

procedures

exhaustion

mandates

before

challenging prison conditions.

The Supreme Court has

1997e(a).

§

an

inmate

can

file

s.

all

a

suit

See Booth v. Churner, 121 S. Ct.

1819, 1825 (2001); Porter v. Nussle, 122 S. Ct. 983,
Woodford v. Ngo, 126

of

988

(2002);

Ct. 2378, 2382-83 (2006); see also Jones v.

Bock, 12 7 S. Ct. 910, 918-19 ( 20 07)

(confirming that " [t] here is no

question that exhaustion is mandatory under the

PLRA and that

unexhausted claims cannot be brought in court").

Because pre-

filing

dismissed

exhaustion

is

mandatory,

a

case

must

be

available administrative remedies were not exhausted.
v. Seal,

702 F.3d 785,

"[d] istrict

courts

have

788
no

(5th Cir. 2012)
discretion
-10-

to

if

See Gonzalez

(noting further that
excuse

a

prisoner's

failure to properly exhaust the prison grievance process before
filing their complaint").
TDCJ has a formal two-step administrative grievance process.
See Johnson v. Johnson, 385 F. 3d 503, 515 (5th Cir. 2004); see also
Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998)

(outlining the

two-step

submitting

procedure,

which

at

Step

1

entails

an

administrative grievance at the institutional level followed by a
Step 2 appeal if the result is unfavorable) .

A Step 1 Grievance,

which is reviewed by officials at the inmate's assigned facility,
must be

filed within fifteen

challenged event.

days

of

the

alleged incident

See Johnson, 385 F.3d at 515.

or

Once an inmate

receives a response to his Step 1 grievance, he then has ten days
to file a Step 2 grievance to appeal an unfavorable result at the
state level.

See id.

Substantial compliance with this process is

not enough to exhaust remedies under the PLRA.
268

("Under

our

strict

approach,

we

Dillon, 596 F.3d at

have

found

that

mere

'substantial compliance' with administrative remedy procedures does
not satisfy exhaustion .

• II) •

A Texas prisoner must pursue a

grievance through both steps to satisfy the exhaustion requirement.
See Johnson, 385 F.3d at 515 (citation omitted).
The

defendants

argue

that

Atomanczyk

failed

to

exhaust

administrative remedies because the Step 2 Grievance that he filed
on October 15, 2016 (his appeal from Step 1 Grievance #2017007211),
complained only of being excluded from an unspecified "program" or
"programs," and made no mention of his exclusion from kosher meals
-11-

or any other specific features of the Enhanced Jewish Services
Program. 34 Thus, the defendants argue that Atomanczyk' s allegations
were factually insufficient to place them on notice that he was
complaining about his exclusion from the Enhanced Jewish Services
Program or the lack of access to its attendant features.

35

In addressing how much detail is required in order to provide
notice of a prisoner's problem, the Fifth Circuit has held that the
exhaustion
purposes,

requirement

must

be

interpreted

"in

light

which include the goal of giving officials

opportunity to address complaints internally.'"
at 516 (quoting Porter, 122

of

'time and

Johnson, 385 F. 3d

s. Ct. at 988); see also Springer v.

Unknown Rekoff, Civil No. 3:14-300, 2016 WL 5372526, at *5
Tex. Sept. 26, 2016)

its

(quoting Johnson, 385 F.3d at 516).

(S.D.

"Thus, a

grievance should be considered sufficient to the extent that the
grievance gives officials a fair opportunity to address the problem
that will later form the basis of the lawsuit."
at 517.
depends

Whether the inmate has provided sufficient information
upon

complaining."
In

Johnson, 385 F.3d

"the

of

problem

about

which

the

inmate

is

Id.

response

documentation

type

in

to
the

the
form

Defendants'
of

MSJ,

internal

Atomanczyk

Grievance

provides

Investigation

Worksheets that were completed in response to Atomanczyk's Step 1

34

Defendants' MSJ, Docket Entry No. 38, pp. 4-6.

35

Id.; Defendants' Reply, Docket Entry No. 44, pp. 4-5.
-12-

and Step 2 Grievances. 36

It is apparent from this documentation

that prison officials understood that Atomanczyk was complaining
about his exclusion from the Enhanced Jewish Services Program at
the Stringfellow Unit,
kosher kitchen.

which is the only TDCJ facility with a

This understanding is evidenced by the fact that

Atomanczyk's claims were referred to the Chaplaincy Department for
the purpose

of

additional

consideration by the

TDCJ Religious

Practices Committee through the HQ-150 process. 37 Given the context
of

the

claims

outlined

in

Atomanczyk's

Step

1

and

Step

2

Grievances, his allegations are not so vague or unintelligible that
TDCJ officials could not have known that he was complaining about
his exclusion from the Enhanced Jewish Services Program. 38

See,

36

Grievance Investigation Worksheets, Step 1 and Step 2
Grievance #2017007211, Exhibit 1C to Plaintiff's Response, Docket
Entry No. 43-5, pp. 2-5.
37

Step 1 Grievance #2017007211, Exhibit A to Defendants' MSJ,
Docket Entry No. 38-1, p. 6.
38

The Supreme Court has clarified that inmates are only
required to provide the "level of detail necessary in a grievance
to comply with the [prison's] grievance procedures," depending on
the prison system's requirements. Jones, 127 S. Ct. at 923. TDCJ
procedures prescribing the content of a grievance do not require a
specific level of factual particularity or detail.
See Offender
Orientation Handbook (Rev. Feb. 2017), Exhibit 1E to Plaintiff's
Response, Docket Entry No. 43-7, pp. 86-88 (containing the
"Grievance Procedures for Offenders").
If prison regulations do
not prescribe any particular content for inmate grievances, "a
grievance suffices if it alerts the prison to the nature of the
wrong for which redress is sought. As in a notice-pleading system,
the grievant need not lay out the facts, articulate legal theories,
or demand particular relief. All the grievance need do is object
intelligibly to some asserted shortcoming." Strong v. David, 297
F.3d 646, 650 (7th Cir. 2002).
-13-

~~

Moussazadeh v. Texas Dep't of Criminal Justice, 703 F.3d 781

(5th Cir. 2012)

(involving a claim similar to the one raised here

about a Jewish inmate who was transferred from the Stringfellow
Unit to the Stiles Unit, where kosher food was unavailable) .
on

this

record,

the

court

concludes

that

Atomanczyk

Based

provided

officials with fair notice of the claims that he has raised in the
Amended Complaint.
failed

to

exhaust

Because defendants have not shown Atomanczyk
administrative

remedies

with

respect

to his

claims, the Defendants' MSJ will be denied.
IV.

Claims Against Warden Brewer

After briefing was completed on the Defendants' MSJ, the court
was advised that Atomanczyk has been transferred from the Stiles
Unit

in

Beaumont,

Complaint was filed.
in Gatesville. 40

where
39

he

was

in

custody

when

the

Amended

Atomanczyk is now housed at the Hughes Unit

Because Atomanczyk is no longer in custody at the

Stiles Unit, counsel for the plaintiff is directed to advise the
court

in writing within

fourteen

days

whether Defendant Wayne

Brewer, who is sued only in his official capacity as Warden of the
Stiles Unit, remains an appropriate defendant in this case and, if
so, why.

39

Advisory to the Court re: Plaintiff's Address ("Advisory") ,
Docket Entry No. 45, p. 1.
4oid.

-14-

V.

Conclusion and Order

Based on the foregoing, the court ORDERS as follows:
1.

Defendants Texas Department of Criminal Justice,
Bryan Collier, and Wayne Brewer's Motion for
Summary
Judgment
Limited
to
Exhaustion
of
Administrative Remedies (Docket Entry No. 38) is
DENIED.

2.

Plaintiff's counsel shall advise the court in
writing within fourteen days of the date of this
Order whether Defendant Wayne Brewer remains an
appropriate defendant in this case.

The Clerk is directed to provide a copy of this Memorandum
Opinion and Order to the parties.
SIGNED at Houston, Texas, on this 6th day of November, 2017.

LAKE
UNITED STATES DISTRICT JUDGE

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