Faison v. Mathena et al
Filing
25
OPINION. Signed by Judge James P. Jones on 7/20/2015. (tvt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
MILTON FAISON,
Plaintiff,
v.
RANDALL C. MATHENA, ET AL.,
Defendants.
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Case No. 7:14CV00426
OPINION
By: James P. Jones
United States District Judge
Milton Faison, Pro Se Plaintiff; Nancy Hull Davidson, Office of the Attorney
General, Richmond, Virginia, for Defendants.
Plaintiff Milton Faison, a Virginia inmate proceeding pro se, brought this
civil rights action under 42 U.S.C. § 1983, alleging that prison officials denied him
the opportunity to participate in the religious observance of Ramadan in 2014, in
violation of the Constitution and the Religious Land Use and Institutionalized
Persons Act, 42 U.S.C. §§ 2000cc et seq. Among other things, the defendant
prison officials argue that they are entitled to summary judgment because Faison
failed to exhaust his administrative remedies before filing this action. I find that
Faison’s claims in this action are barred by 42 U.S.C. § 1997e(a). Therefore, I will
grant the defendants’ Motion for Summary Judgment and dismiss Faison’s claims
without prejudice.
An award of summary judgment is appropriate “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). In determining whether to
grant a motion for summary judgment, the court must view the record in the light
most favorable to the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986).
To withstand a summary judgment motion, the non-movant must
produce sufficient evidence from which a reasonable jury could return a verdict in
his favor. Id. at 249-50. “Conclusory or speculative allegations do not suffice, nor
does a ‘mere scintilla of evidence’ in support of [the non-movant’s] case.”
Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (citation
omitted).
The Prison Litigation Reform Act provides in 42 U.S.C. § 1997e(a) that a
prisoner cannot bring a civil action concerning prison conditions until he has first
exhausted available administrative remedies. Porter v. Nussle, 534 U.S. 516, 524
(2002).
Failure to exhaust all levels of administrative review is not “proper
exhaustion” and will bar an inmate’s § 1983 action. Woodford v. Ngo, 548 U.S.
81, 90 (2006).
‘“[T]he language of section 1997e(a) clearly contemplates
exhaustion prior to the commencement of the action as an indispensable
requirement, thus requiring an outright dismissal [of unexhausted claims] rather
than issuing continuances so that exhaustion may occur.’” Carpenter v. Hercules,
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No. 3:10cv241-HEH, 2012 WL 1895996, at *4 (E.D. Va. May 23, 2012) (quoting
Johnson v. Jones, 340 F.3d 624, 628 (8th Cir. 2003)).
Operating Procedure 866.1 is the written administrative remedies procedure
that Virginia Department of Corrections inmates must follow to comply with §
1997e(a). Within 30 days of the incident the inmate wishes to grieve, he must
attempt informal resolution and then file a regular grievance.
After an
investigation of this Level I remedy, the warden or his delegate responds within 30
days. The inmate may then appeal to the regional director, who provides a Level II
response within 20 days, which is generally the last available appeal.
Faison states that on June 15, 2014, he notified prison officials that he
wished to participate in the 2014 Ramadan fast accommodation provided at Red
Onion State Prison, based on his religious dietary beliefs as an adherent of Islam.
To accommodate Muslims’ belief that they should fast between dawn and sunset
during the month of Ramadan, by policy, prison officials serve meals to Ramadan
participants outside those fasting hours.
The 2014 Ramadan accommodation
began on June 28. Officials notified Faison that because his name was not listed
on a master pass list for Islamic religious programming, he could not participate in
2014.
Defendants’ evidence on exhaustion establishes the following sequence of
events. Faison filed an informal complaint form on July 7, 2014, to which he
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received a response on July 10, 2014.
On July 21, 2014, officials received
Faison’s regular grievance, complaining about denial of his request to participate
in the Ramadan fast. The warden issued a timely Level I response on July 25,
2014, which determined the grievance to be unfounded. Faison appealed, and the
regional director issued a timely Level II response on August 22, 2014, upholding
the Level I response and stated that Level II was the last level of appeal for
Faison’s grievance. Faison signed and dated his § 1983 Complaint on July 28,
2014, and the court filed the Complaint on August 11, 2014.
In his Complaint, Faison stated that he had “completed Institutional
Complaint Form, Level I Grievance and Level II Grievance” and that he was
“awaiting return of said grievances” from the regional director. (Compl. ¶ 11, ECF
1.)
In his declaration responding to the defendants’ Motion for Summary
Judgment, Faison states that he “did exhaust his admin. remedies before he began
to litigate (this lawsuit).” (Decl. ¶ 12, ECF No. 24.)
Faison does not, however, offer any documentation or state any facts
disputing the defendants’ exhaustion evidence. Nor does he allege any explanation
for the fact that the copy of the Level II response submitted by the defendants was
dated on August 22, 2014, after Faison submitted his § 1983 Complaint to the
court. Faison’s conclusory assertions in his Complaint and response need not be
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accepted as true, given this absence of factual support, and are not sufficient to
withstand defendants’ summary judgment motion. Thompson, 312 F.3d at 649.
I find no genuine issue of material fact in dispute that Faison filed this
lawsuit before he had exhausted administrative remedies as required under
§ 1997e(a). Logic dictates that until an inmate is notified that his grievance appeal
has been denied, that remedy is still pending and may be granted; as such, until he
receives notification of denial of his appeal, he cannot be deemed to have
exhausted available remedies in compliance with § 1997e(a). Moreover, only
when Faison received his Level II response was he notified that no Level III appeal
remained available to him in this case. Thus, I conclude that Faison’s § 1983
Complaint concerning Ramadan 2014 was prematurely filed and must be
dismissed without prejudice to his ability to refile his claims in a new and separate
lawsuit.
For the stated reasons, I will grant the defendants’ Motion for Summary
Judgment under § 1997e(a) for failure to exhaust available administrative remedies
before bringing this lawsuit, and dismiss Faison’s claims without prejudice.
A separate Order will be entered herewith.
DATED: July 20, 2015
/s/ James P. Jones
United States District Judge
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