Etterson v. Newcome et al

Filing 23

MEMORANDUM OPINION. See for complete details. Signed by District Judge John A. Gibney, Jr. on 07/19/2016. Clerk mailed copy to pro se Plaintiff. (nbrow)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

VICTOR M. ETTERSON,
Plaintiff,
V.

Civil Action No. 3;14CV650

JEFFERY NEWCOME, el ai.
Defendants.
MEMORANDUM OPINION

Victor M. Etterson, a former Virginia inmate proceeding pro se and in forma pauperis,

filed this 42 U.S.C. § 1983 action.' By Memorandum Opinion and Order entered on October 5,
2015, the Court dismissed all claims except the First Amendment claim against Defendants
Sergeant Moore and Jailer McCormiclc ("Defendants").
Defendants' Motion to Dismiss.

The matter is before the Court on

For the reasons stated below, the Motion to Dismiss (ECF

No. 20) will be DENIED.
I.

STANDARD FOR MOTION TO DISMISS

"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;

importantly, it does not resolve contests sun-ounding the facts, the merits of a claim, or the
applicability of defenses." Republican Parly of N.C. v. Mariin, 980 F.2d 943, 952 (4th Cir.

^The statute provides, in pertinent part:
Every person who, under color of any statute ... of any State . .. subjects, or
causes to be subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law....

42 U.S.C. § 1983.

1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356

(1990)). In considering a motion to dismiss for failure to state a claim, a plaintiffs well-pleaded
allegations are taken as true and the complaint is viewed in the light most favorable to the
plaintiff. Mylan Labs., Inc. v. Maikari, 1 F.3d 1130, 1134 (4th Cir. 1993); see also Marlin, 980
F.2d at 952. This principle applies only to factual allegations, however, and "a court considering
a motion to dismiss can choose to begin by identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009).

The Federal Rules of Civil Procedure "require[ ] only 'a short and plain statement of the

claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of
what the ... claim is and the grounds upon which it rests.'"

Bell AtI. Corp. v. Twombly,

550 U.S. 544, 555 (2007) (second alteration in original) (quoting Conley v. Gibson, 355 U.S. 41,

47 (1957)). Plaintiffs cannot satisfy this standard with complaints containing only "labels and
conclusions" or a "formulaic recitation of the elements of a cause of action."

Id. (citations

omitted). Instead, a plaintiff must allege facts sufficient "to raise a right to relief above the

speculative level," id. (citation omitted), stating a claim that is "plausible on its face," id. at 570,
rather than merely "conceivable." Id. "A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp., 550 U.S. at 556). In
order for a claim or complaint to survive dismissal for failure to state a claim, the plaintiff must

"allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.I. DuPont de
Nemoiirs & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d
193, 213 (4th Cir. 2002); lodice v. United Slates, 289 F.3d 270, 281 (4th Cir. 2002)). Lastly,

while the Court liberally construes pro se complaints, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th

Cir. 1978), it will not act as the inmate's advocate and develop, sua sponle, statutory and
constitutional claims that the inmate failed to clearly raise on the face of his complaint. See
Brock V. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J., concurring); Beaudett v. City of
Hampton, 115 F.2d 1274, 1278 (4th Cir. 1985).
II.

SUMMARY OF ALLEGATIONS

The allegations in Etterson's Complaint are as follows:
I was removed from Ramadan by Sgt. Moore and jailer McCormick on
July 5, 2014 at Riverside Regional Jail, because Sgt. Moore and jailer McCormick
saw me drink water and eat some food, because the Ramadan tray was late. The
dinner trays had been served about 2 hours earlier. . . . But as soon as I took a sip
of water and a bite to eat, Sgt. Moore and jailer McCormick ran over to me and

said, you are off of Ramadan. I tried to explain to them that it did not need to be
dark outside, just as long as the sun had gone down[. W]ell they didn't want to
believe me, but it's the truth.

On July 6, 2014, jailer McCormick and Sgt. Moore, feed me breakfast,
lunch and dinner, with the rest of medical housing 2 where I was assigned at the
time. But when the shift changed on July 6, 2014, jailer Armstrong gave me my

Ramadan tray, and breakfast, because she said my name was still on the Ramadan
list. But on July 7, 2014, during the morning shift, jailer Spretely came on, and
gave me breakfast, but when she went on her lunch break, I did not get a lunch
tray or dinner tray that evening. When jailer Armstrong came on she did not give
me a Ramadan tray, because Sgt. Moore told her I was no longer on Ramadan.
From that point, 1was no longer on Ramadan.
(Compl. 5 (spelling, spacing, and capitalization corrected).)

Etterson demands money damages. (Compl. 6 (capitalization and spelling corrected).)
III.

DEFENDANT'S ARGUMENTS FOR DISMISSAL

Defendants argue that Etterson's claims should be dismissed because: (1) Etterson fails

to show any physical injury; (2) Etterson failed to exhaust his administrative remedies; (2) and,
(3) Defendants are entitled to qualified immunity. For the reasons stated below, the Motion to
Dismiss will be DENIED.

A.

No Physical Injury

Defendants first argue that Etterson fails to allege any entitlement to relief because he
alleges no physical injury as required to recover damages by the Prison Litigation Reform Act
("PLRA"), 42 U.S.C. § 1997e(e). The pertinent statute provides: "No Federal civil action may
be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or
emotional injury suffered while in custody without a prior showing of physical injury." Id.
However, Etterson's claim does not involve mental or emotional injury, and Defendants fail to

sufficiently address why the PLRA should limit other types of recovery such as nominal or

punitive damages. Indeed, courts have found that "Congress did not intend section 1997e(e) to
bar recovery for all forms of relief" Royal v. Kaulzky, 375 F.3d 720, 723 (8th Cir. 2004)

(citations omitted) (allowing recovery for nominal and punitive damages under § 1983); see also
Logan V. Hall, 604 F. App'x 838, 840 (11th Cir. 2015) (explaining that while "§ 1997e(e)
foreclosed claims for both compensatory and punitive damages[,] .... [n]ominal damages,
however, are not precluded").

Moreover, the Court construes Etterson to bring a claim under the Free Exercise Clause

of the First Amendment.^

Defendants also fail to adequately address the applicability of

§ 1997e(e) to First Amendment claims. See King v. Zamiara, 788 F.3d 207, 211-17 (6th Cir.
2015) (discussing the applicability of § 1997e(e) to First Amendment claims and concluding that

"deprivations of First Amendment rights are themselves injuries, apart from any mental,
emotional or physical injury that might arise from the deprivation, and that § 1997e(e) does not
bar all relief for injuries to First Amendment rights"). But see Logan, 604 F. App'x at 840^1

(finding no entitlement to compensatory or punitive damages for First Amendment claim

^"Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof. . . ." U.S. Const, amend. I.

because no allegation of physical injury). Accordingly, the Motion to Dismiss the Complaint
because Etterson alleged no physical injury will be DENIED.
B.

Failure to Exhaust Administrative Remedies

The pertinent statute provides:

"No action shall be brought with respect to prison

conditions under [42 U.S.C. § 1983] or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are available are
exhausted." 42 U.S.C. § 1997e(a). Generally, in order to satisfy the exhaustion requirement, the
inmate must file a grievance raising the claim and pursue the grievance through all available
levels of appeal. See Woodford v. Ngo, 548 U.S. 81, 90 (2006).
Because the exhaustion of administrative remedies is an affirmative defense, Jenkins

bears the burden of demonstrating lack of exhaustion. Jones v. Bock, 549 U.S. 199, 216 (2007).

Although it is possible to raise the defense in a motion to dismiss, the United States Court of

Appeals for the Fourth Circuit has cautioned that "it seems unlikely that the failure to exhaust
administrative remedies will often be apparent from the face of a complaint . . .

Anderson v.

XYZ Corr. Health Serv., /«c., 407 F.3d 674, 682 (4th Cir. 2005); see Moore v. Bennette, 517 F.3d

717, 725 (4th Cir. 2008) (quoting Freeman v. Walkins, 479 F.3d 1257, 1260 (10th Cir. 2007), for

the proposition that "'only in rare cases will a district court be able to conclude from the face of
the complaint that a prisoner has not exhausted his administrative remedies and that he is without
a valid excuse'").

Defendants suggest that Etterson's lack of exhaustion appears on the face of the

Complaint. That is not so. Etterson acknowledges that the Riverside Regional Jail had a

grievance procedure; that he filed a grievance on July 17, 2014, but that he "got it back on 8-52014" because staff "said it was not complete and will not be submitted for a response."

(Compl. 4.) Etterson indicates that he did not submit his complaint to prison authorities because

"I wrote them letters, I talked to staff. Everything falls on Deaf Ears! [W]hat's the use." {Id.)
Etterson notes that he filed no appeal. {Id.) Contrary to Defendants' assertion, this is not one of

the '"rare cases'" where the inmate's failure to comply with § 1997e(a) can be assessed from the
face of the Complaint. Moore, 517 F.3d at 725 (quoting Freeman, 479 F.3d at 1260).

Without information about the requirements of the Riverside Regional Jail's grievance
procedure, the Court cannot ascertain whether Etterson's complaint about the denial of Ramadan
trays was grieveable. See Anderson, 407 F.3d at 682 n.5 ("To determine whether an inmate has
exhausted his administrative remedies requires an understanding of the remedies available and

thus likely would require information from the defendant as well as the inmate." (citing Mojias v.
Johnson, 351 F.3d 606, 610-11 (2d Cir. 2003); Snider v. Melindez, 199 F.3d 108, 113-14 (2d
Cir. 1999))). The Court requires such information because "a court considering dismissal of a

prisoner's complaint for non-exhaustion must first establish from a legally sufficient source that
an administrative remedy is applicable and that the particular complaint does not fall within an

exception." Mojias, 351 F.3d at 610 {c\\mg Snider, 199 F.3d at 114). Accordingly, the Motion
to Dismiss the Complaint for lack of exhaustion will be DENIED. See Woodson v. Jenkins, No.
3:13CV492, 2015 WL 139100, at *2-3 (E.D. Va. Jan. 9, 2015); Daniels v. Caldwell, No.
3:11CV461, 2013 WL 85165, at *3 (E.D. Va. Jan. 7, 2013) (denying motion to dismiss on the
basis of exhaustion for similar reasons).
C.

Qualified Immunity

"When qualified immunity is asserted, the reviewing court should usually first ask

whether the right was violated on the facts alleged, and then determine whether that right was
'clearly established.'" LeSueur-Richmond Slate Corp. v. Fehrer, 666 F.3d 261, 264 (4th Cir.

2012) (citing Smith v. Smith, 589 F.3d 736, 739 (4th Cir. 2009)); see Pearson v. Callahan, 555
U.S. 223, 236 (2009) (first alteration in original) ("[W]e conclude that, while the sequence set

forth [in Saucier v. Katz, 553 U.S. 194 (2001)] is often appropriate, it should no longer be
regarded as mandatory.").
As explained in the October 5, 2015 Memorandum Opinion and Order, Etterson appears

to bring a claim under the Free Exercise Clause of the First Amendment.^ To state a claim,
Etterson must allege facts that suggest that "(1) he holds a sincere belief that is religious in

nature" and (2) that Defendants Moore and McCormick imposed a substantial burden on the
practice of his religion.

Whitehonse v. Johnson, No. I:10cvll75 (CMH/JFA), 2011 WL

5843622, at *4 (E.D. Va. Nov. 18, 2011) (citing Hernandez v. Comm'r, 490 U.S. 680, 699

(1989)). "Government officials impose a substantial burden on the free exercise of religion by
'put[ting] substantial pressure on an adherent to modify his behavior and to violate his beliefs.'"

Massenburg v. Adams, No. 3:08cvl06, 2011 WL 1740150, at *4 (E.D. Va. May 5, 2011)
(alteration in original) (quoting Lovelace v. Lee, All F.3d 174, 187 (4th Cir. 2006) (some internal
quotation marks omitted)).

Defendants first question the sincerity of Etterson's religious beliefs. (Mem. Supp. Mot.
Dismiss 12-13.) At this stage, the Court must assume that Etterson's religious beliefs are
sincere.

As to substantial burden, Etterson alleges sufficient facts to make out a claim that

Defendants Moore and McCormick imposed a substantial burden on his ability to practice his
religion in violation of the First Amendment. Etterson alleges that Defendants removed him

from the list to receive Ramadan trays after they observed him eating and drinking at a time

^"Congress shall make no law respecting an establishment ofreligion, orprohibiting the free
exercise thereof. . . ." U.S. Const, amend. I.

before the Ramadan trays had been served. Defendants argue that Etterson's "allegations do not

demonstrate any violation of any clearly established law by the defendants, let alone any
violation of any clearly established law of which a reasonable official in the circumstances
alleged should have been aware."

(Mem. Supp. Mot. Dismiss 10.)

They argue that "from

[Etterson's] own allegations, the defendants did not believe that plaintiff was acting in

accordance with the dictates for the observance of Ramadan when they saw him eating and
drinking at the particular time of the day, even if they were mistaken as to whether being 'dark,'
or 'the sun ha[s] gone down' is the significant factor with respect to the timing of eating the
evening meal during Ramadan." {Id. at 12 (alteration in original).) However, under the First
Amendment, an inmate "has a 'clearly established . . . right to a diet consistent with

his . . . religious scruples,' including proper food during Ramadan." Lovelace v. Lee, 472 F.3d
174, 199 (4th Cir. 2006) (citations omitted). Prison officials "violate[] this clearly established

right if [they] intentionally and without sufficient justification den[y] an inmate a religiously
mandated diet." Id. (citation omitted).

Etterson has sufficiently alleged that he is a practicing Muslim, and his right to receive
proper food during Ramadan is clearly established. Id.\ cf. Wall v. Wade, 741 F.3d 492, 502 (4th
Cir. 2014) (explaining that "unequivocal statement in Lovelace that inmates are entitled to

religious dietary accommodations" precluded dismissal based on claimed entitlementto qualified
immunity). With respect to whether Defendants violated this clearly established right, Etterson
has alleged that the Defendants removed him from the Ramadan diet even after Etterson
explained to them that he was permitted to eat after the sun goes down and that he was not in

violation of his religious tenets. While Defendants seemingly claim that this may have been a
mistake, they offer no persuasive argument that this mistake was reasonable. Cf. Colvin v,

Caruso, 605 F.3d 282, 291 (6th Cir. 2010) (finding a defendant entitled to qualified immunity
when he made a "reasonable mistake" and "once the mistake was discovered . . . worked 'as

quickly as possible' to ensure that [inmate] received" his religiously mandated meals); Brown v.
Groom, 174 F. App'x 847, 848 (5th Cir. 2006) (finding no entitlement to qualified immunity
when "defendants were supposed to resolve any 'discrepancy or question with the [Ramadan]
list' by checking with the prison chaplaincy department" and "[t]here was no evidence"
defendants did so, or otherwise checked into inmate's eligibility for Ramadan meals). On the
current record, the facts as alleged by Etterson support an inference that Defendants,
"intentionally and without sufficient justification," had him removed from his religious diet.
Lovelace, All F.3d at 199; see Thompson v. Holm, 809 F.3d 376, 381 (7th Cir. 2016). Thus,
Defendants are not entitled to qualified immunity.
IV.

CONCLUSION

Accordingly, Defendants' Motion to Dismiss (ECF No. 20) will be DENIED. Any party
wishing to file a dispositive motion must do so within sixty (60) days of the date of entry hereof.
An appropriate Order will accompany this Memorandum Opinion.

Date:

Richmond, Virginia

John A. Gibney, Jr.
United States District Jud i