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
-15-
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