McElroy v. Mathena et al
Filing
28
OPINION. Signed by Judge James P. Jones on 12/22/2014. (tvt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
CARNELL McELROY,
Plaintiff,
v.
RANDALL C. MATHENA, ET AL.,
Defendants.
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Case No. 7:14CV00434
OPINION
By: James P. Jones
United States District Judge
Carnell McElroy, Pro Se Plaintiff; Nancy Hull Davidson, Assistant Attorney
General of Virginia, Richmond, Virginia, for Defendants.
Plaintiff Carnell McElroy, a Virginia inmate proceeding pro se, brought this
civil rights action under 42 U.S.C. § 1983, alleging that prison officials violated his
free exercise of religion rights. The defendant prison officials argue that they are
entitled to summary judgment because McElroy concedes that he failed to exhaust
his administrative remedies before filing this action. I agree and will grant the
defendants’ Motion for Summary Judgment and dismiss McElroy’s claims without
prejudice.
The facts are not in dispute.
McElroy is a Muslim who signed up to
participate in the 2014 Ramadan accommodation provided at Red Onion State
Prison, based on his religious dietary beliefs. To accommodate Muslims’ belief
that they should fast between sunrise 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 with an early breakfast on June
28. On June 30, McElroy took a regular meal tray during daylight hours. Based
on this act, officials charged McElroy $1.35 for that meal and removed him from
the Ramadan list. Accordingly, from July 5 to July 27, 2014, he was not allowed
to participate in the Ramadan fast. 1
The Prison Litigation Reform Act (“PLRA”) 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,
1
Officials’ removal of McElroy from the Ramadan list was consistent with a prior
Virginia Department of Corrections (“VDOC”) policy. Under that policy, if an official
saw that an inmate approved to participate in the Ramadan fast was breaking his fast by
eating during daylight hours, officials revoked that inmate’s Ramadan accommodation.
On February 21, 2014, however, this policy was modified to state that an offender
approved to participate in Ramadan who seeks a meal tray between dawn and sunset
during the fast will be assessed the cost of that Ramadan meal (currently $1.35), but will
not be otherwise penalized. McElroy states that when he chose to break his fast by eating
a meal during the daytime, he believed that he would merely be charged $1.35 for the
meal, but would still be allowed to complete the rest of his Ramadan fast, as his religious
beliefs require.
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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 (“OP”) 866.1 is the written administrative remedies
procedure that VDOC 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. The inmate may then appeal to the
regional administrator, who provides a Level II response, which is generally the
last available appeal.
On August 1, 2014, after the Ramadan fast ended, McElroy filed a regular
grievance about his removal from the fast list. He signed and dated this § 1983
complaint on August 4, 2014, just three days later, before he had received the
Level I response, which issued on August 27, 2014. The regional director did not
issue the Level II response until October 10, 2014.
Thus, it is clear that McElroy filed this lawsuit before he had complied with
§ 1997e(a). Although he had filed his initial grievance about his removal from the
Ramadan list, he had not yet received a response or pursued the available appeal to
Level II. Thus, I conclude that his § 1983 complaint on the Ramadan issue was
prematurely filed and must be dismissed. For the stated reasons, I will grant the
defendants’ Motion for Summary Judgment under § 1997e(a) for failure to exhaust
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available administrative remedies before bringing this lawsuit, and dismiss his
claims without prejudice.
A separate Order will be entered herewith.
DATED: December 22, 2014
/s/ James P. Jones
United States District Judge
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