McElroy v. Clarke et al

Filing 30

OPINION. Signed by Judge James P. Jones on 6/14/2017. (slt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION

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CARNELL D. MCELROY, SR.,
Plaintiff,
v.
HAROLD CLARKE, ETC., ET AL.,
Defendants.

Case No. 7:16CV00245
OPINION
By: James P. Jones
United States District Judge

Carnell D. McElroy, Sr., Pro Se Plaintiff; J. Michael Parsons, Office of the
Attorney General of Virginia, Richmond, Virginia, for Defendants Harold Clarke,
Earl Barksdale, Miss Baker, Jeffrey Artrip, and Lt. Roy Sykes.
Carnell D. McElroy, a Virginia inmate proceeding pro se, filed this civil
rights action under 42 U.S.C. § 1983 and the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc to 2000cc-5.
Liberally construed, McElroy’s Complaint alleges that prison officials placed a
substantial burden on his free exercise of his religious dietary beliefs and denied
him access to the grievance procedures. After review of the record, I conclude that
McElroy is barred from pursuing his § 1983 claims because he failed to properly
exhaust his administrative remedies before filing this action. As to one of his
claims, I find that he fails to state a claim upon which relief can be granted.

I.
The following facts, taken from the record, are largely undisputed.
McElroy, currently incarcerated at Red Onion State Prison (“Red Onion”), belongs
to the Nation of Islam (“NOI”) and is a member of the World Wide Muslim
Community (known as “UMMA”). He states that his beliefs require him to eat
“halal” foods and forbid him to eat “haram” foods, such as those prepared in a
kitchen where pork products are also prepared. Compl. 2, ECF No. 1. McElroy
was approved for Common Fare meals, a specialty diet provided to inmates whose
religious dietary beliefs cannot be met from the regular menus available for
Virginia Department of Corrections (“VDOC”) inmates.
On March 4, 2015, a Red Onion correctional officer observed McElroy
sharing food from his Common Fare tray with another inmate. This action violated
the contract McElroy signed to be approved for Common Fare participation.
Thereafter, McElroy was notified that the Institutional Classification Authority
(“ICA”) would soon conduct a hearing on whether or not to suspend him from
Common Fare participation for six months, based on his contract violation.
McElroy filed an Inmate Request for Information/Services with defendant
Earl Barksdale, the warden at Red Onion, dated March 10, 2015, stating:
I had a ICA hearing for my Common Fare which will/may lead
to my removal. However, the court just ruled that it is illegal for
VADOC (Red Onion) to police religion. . . . My diet is a part of my
religion. If I am removed illegally it will be a violation of my
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freedom to practice my religion. And I will be forced to file a 1983. I
do not want to do this, so I am making you aware of the situation in
hopes that you will rectify the situation.
Compl. Ex. C, ECF No. 1-1. The warden’s office responded on March 16, 2015,
stating:
McElroy, you were observed sharing items from your Common
Fare tray with another offender on March 4, 2015, which is a violation
of the Common Fare Agreement you signed Feb. 2, 2014. In
removing you from Common Fare we are not policing your religious
rights. We are enforcing the agreement you signed stating your
responsibilities as a Common Fare recipient and the consequences for
not following the agreement.
Id. On March 17, 2015, McElroy was suspended from Common Fare participation
for six months.
Once his six-month suspension had expired in September 2015, McElroy
filed various administrative remedy forms complaining that he had not yet been
reinstated to the Common Fare program. Officials advised him that he should see
his counselor to reapply. McElroy then complained that VDOC food service
policy does not require reapplication and mentioned other inmates who had been
reinstated to Common Fare after a suspension, apparently without having to
reapply. Warden Barksdale told McElroy that he would be required to reapply,
however, and that unless he met the criteria for the Common Fare program, his
application would be denied. During the period when McElroy was not approved

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for Common Fare meals, he received meals from the regular VDOC menus that
occasionally included haram items, such as pork and blood.
On March 31, 2016, McElroy filed an Offender Request asking again for
reinstatement to Common Fare without reapplying for the program.1 Counselor
Stuart responded on April 19, stating: “You have 3 suspension[s] and will not be
eligible [for reinstatement] til 3-4-19.” Compl. Ex. S, ECF No. 1-1. McElroy filed
an informal complaint disputing this ruling. Defendant Unit Manager Duncan
responded on April 26, 2016: “I reviewed CORIS and discovered you had only
violated Common Fare one time. Therefore, I have notified Counselor Stewart to
re-do your Common Fare ICA.” Compl. Ex. Z, ECF No. 1-1. McElroy filed this
§ 1983 Complaint in May 2016.
II.
The Prison Litigation Reform Act (“PLRA”), among other things, 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.
This exhaustion requirement is “mandatory,” Ross v. Blake, 136 S. Ct. 1850, 1856
(2016), and “applies to all inmate suits about prison life.” Porter v. Nussle, 534

1

In late March 2016, McElroy completed a Common Fare application, asking for
reinstatement based on his “prior approval” for this religious diet. Compl. Ex. T, ECF
No. 1-1. He does not provide any information about prison officials’ response to this
application.
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U.S. 516, 532 (2002). To comply with § 1997e(a), an inmate must follow each
step of the established grievance procedure that the facility provides to prisoners
and meet all deadlines within that procedure. See Woodford v. Ngo, 548 U.S. 81,
90-94 (2006). Even if the particular form of relief the inmate seeks in his lawsuit
is not available through the prison’s grievance proceedings, he must, nevertheless,
exhaust properly all available remedies under that procedure before bringing a civil
action in this court. Booth v. Churner, 532 U.S. 731, 741 (2001).
Operating Procedure 866.1 is the written administrative remedies procedure
that VDOC inmates must follow to comply with § 1997e(a). Messer Aff., ECF
No. 23-1. Under this procedure, an inmate with a grievance about some event or
issue must first make a good faith effort to resolve his concerns informally, which
he may do by completing an Informal Complaint form and submitting it to prison
staff. Id. at ¶ 6. He will receive a written response to his Informal Complaint form
within fifteen days, in order to allow him to initiate the formal grievance procedure
by filing a Regular Grievance within thirty days of the occurrence about which it
complains. Id. After investigation of the Regular Grievance, the warden or his
designee will send the inmate a Level I response.

If the responding official

determines the grievance to be “unfounded,” the inmate must appeal that holding
to Level II, the regional administrator, and in some cases, to Level III.

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If a Regular Grievance does not meet the filing requirements of OP 866.1,
the grievance coordinator will reject the document at intake, mark the reason for
the rejection on the back of the form, and return it to the inmate within two days.
The inmate can appeal the intake rejection decision to the regional ombudsman.
Proper exhaustion, however, requires the inmate to timely file a Regular Grievance
and pursue it through the highest applicable level of appeal within the applicable
time limits at each stage.
The defendants contend that they are entitled to summary judgment because
McElroy failed to exhaust administrative remedies on his complaints about his
initial suspension from the Common Fare program at Red Onion and the allegedly
wrongful denials of his requests for reinstatement.2

I agree.

McElroy has

submitted a Verified Statement Form indicating that he exhausted available
administrative remedies.

The undisputed exhibits in the record, however,

demonstrate that he did not do so.
After the ICA approved McElroy’s removal from Common Fare
participation on March 17, 2015, McElroy had thirty days to file a Regular
Grievance about this action. On April 15, 2015, he allegedly filed an Informal

2

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 take the non-movant’s evidence as true and draw “all
justifiable inferences” from the evidence in his favor. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986).
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Complaint about being suspended from Common Fare, but never received a
response. He did not file a Regular Grievance on this issue as before his thirty-day
filing period expired on April 17, 2015.
The defendants bear the burden of proving the affirmative defense that
McElroy failed to exhaust available administrative remedies regarding his claims
before filing suit. Jones v. Bock, 549 U.S. 199, 216 (2007). They have done so as
to this initial claim regarding the March 2015 suspension. McElroy may yet
escape summary judgment under § 1997e(a) if he states facts showing that the
remedies under the established grievance procedure were not “available” to him.
Ross, 136 S. Ct. at 1859 (noting that circumstances making prison grievance
procedures unavailable “will not often arise”).

Generally, “an administrative

remedy is not considered to have been available if a prisoner, through no fault of
his own, was prevented from availing himself of it.” Moore v. Bennette, 517 F.3d
717, 725 (4th Cir. 2008).
McElroy alleges vaguely that Informal Complaint forms are “not readily
available” at Red Onion. McElroy Decl. ¶ 7, ECF No. 25-2. Regardless, he does
claim that he submit a Regular Grievance by the April 17 deadline.
I thus find no material fact in dispute on which McElroy could persuade a
reasonable fact finder that the established administrative remedies were
unavailable to him.

Because he failed to file a regular grievance within the
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timeline dictated by OP 866.1, or to show that this process was unavailable, his
claim concerning his March 17, 2015, suspension from the Common Fare program
is unexhausted and must be dismissed as such. As the record also clearly reflects
that he can no longer pursue administrative remedies on this issue, I will grant the
defendants’ motion as to this claim and dismiss it with prejudice.
McElroy next claims that after September 2015 when his suspension
expired, the defendants violated his free exercise rights by refusing his requests for
reinstatement to the Common Fare program without being required to reapply.
Between September 2015 and April 2016, officials repeatedly told McElroy to
reapply for Common Fare participation. He then delayed his own reinstatement by
failing to complete an application as directed, based on his own interpretation of
VDOC policy.3
McElroy also failed to file a properly formulated Regular Grievance or
otherwise exhaust administrative remedies on this claim. On October 30, 2015, he
filed a Regular Grievance complaining that he should have been automatically
reinstated to the Common Fare program when his suspension expired.

The

institutional ombudsman, J. Messer, rejected this grievance as a request for
services, instead of a grievance, and instructed McElroy to contact his counselor

3

In any event, McElroy has no viable claim based on the defendants’ alleged
violations of Common Fare reinstatement procedures. See Riccio v. Cty. of Fairfax, 907
F.2d 1459, 1469 (4th Cir. 1990) (holding that violations of state procedural rules do not
present a federal due process issue and, as such, are not actionable under § 1983).
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about the reinstatement process. If McElroy had done so, and the reinstatement
request had been denied, then McElroy could have filed an Informal Complaint
about that denial decision to properly begin the exhaustion process. Instead of
doing so, McElroy appealed Messer’s intake decision that was upheld by the
regional ombudsman. Because McElroy failed to follow instructions and then
properly file a regular grievance about a particular occurrence, or to show that the
regular grievance process was unavailable, his claim concerning the alleged 20152016 delay in reinstatement to the Common Fare program is unexhausted and must
be dismissed. Finding no administrative remedy that McElroy could currently
pursue to exhaust this claim, I will, therefore, grant the defendants’ motion and
dismiss this claim with prejudice.
McElroy’s third claim asserts that while not approved for Common Fare
meals, he occasionally received haram foods in violation of his beliefs.

He

submitted a Regular Grievance on December 10, 2015, about receiving pork for
lunch on November 28. Rather than submitting this grievance to the institutional
ombudsman as required by policy, however, McElroy mailed it to the regional
ombudsman. That official received the grievance on December 15, and returned it,
unprocessed, to McElroy for filing at Red Onion according to procedure. The Red
Onion institutional ombudsman’s office received the grievance on January 5, 2016,
and rejected it as untimely because the thirty-day filing period had expired.
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On March 1, 2016, McElroy filed a Regular Grievance complaining that he
had been served pork at dinner on February 25 and that he had not been reinstated
to Common Fare upon request. On March 9, 2016, Messer rejected the grievance
at intake as a request for services. Messer instructed McElroy to submit his request
for reinstatement to Common Fare to his counselor and to submit a request to food
service for a no-pork diet.
The record thus indicates that McElroy did not follow the established
grievance procedures to exhaust administrative remedies about his haram food
complaints. He failed to submit the grievance about being served pork for lunch to
the institutional ombudsman as policy dictated. He alleges that he did so because
he feared Messer would reject the grievance as a request for services.

This

speculative fear neither demonstrates that the procedural steps of OP 866.1 were
unavailable to him, Ross, 136 S. Ct. at 1858-60, nor excuses his failure to follow
and complete those steps.
McElroy also failed to follow those steps to exhaust his complaint that he
had been served pork for dinner. He could have followed Messer’s instructions to
file a request for services to ask for a pork-free diet, or to see his counselor about
reinstatement to Common Fare. If such efforts did not achieve the desired results,
he could then have filed an informal complaint and regular grievance, as required
under OP 866.1. His self-selected alternative means of exhaustion do not comply
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with Red Onion’s established grievance procedures or with § 1997e(a).
Accordingly, I will grant the defendants’ Motion for Summary Judgment as to this
claim, and dismiss it with prejudice, finding no evidence that McElroy could now
exhaust.
In his fourth and final claim, McElroy contends that on April 19, 2016, he
learned that he was being denied consideration for Common Fare reinstatement
until March 2019 because of his counselor’s mistaken determination that he had
three prior suspensions. McElroy contends that this claim is exhausted, because
his subsequent Informal Complaint on this issue was resolved in his favor. I agree.
I conclude, however, that the claim must be summarily dismissed for failure to
state a claim.
The court is required to dismiss any action or claim filed by a prisoner
against a governmental entity or officer if the court determines the action or claim
is frivolous, malicious, or fails to state a claim on which relief may be granted. 28
U.S.C. § 1915A(b)(1). To survive dismissal under § 1915A(b)(1), an inmate’s
complaint must present “enough facts to state a claim to relief that is plausible on
its face.” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
McElroy’s fourth claim must be dismissed as having no basis in fact.
Section 1983 permits an aggrieved party to file a civil action against a person for
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actions taken under color of state law that violated his constitutional rights. See
Cooper v. Sheehan, 735 F.3d 153, 158 (4th Cir. 2013). “[A] plaintiff must plead
that each Government-official defendant, through the official’s own individual
actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009)). McElroy fails to meet this pleading standard here because he states no
facts showing how any of the defendants named in his Complaint was personally
involved in the mistake about his eligibility for Common Fare.
Moreover, I also find that his contentions about the eligibility error do not
state a religious rights claim, even if he had asserted it against a particular person.
RLUIPA and the First Amendment prohibit governmental actors from imposing a
“substantial burden” on an inmate’s ability to exercise his religion unless the
government can demonstrate an appropriate reason for the burden. Lovelace v.
Lee, 472 F.3d 174, 198 n. 8 (4th Cir. 2006). For either type of claim, “a substantial
burden on religious exercise occurs when a state or local government, through act
or omission, ‘put[s] substantial pressure on an adherent to modify his behavior and
to violate his beliefs.’” Id. at 187 (RLUIPA context) (quoting Thomas v. Review
Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981) (First Amendment context).
“[N]egligent acts by officials causing unintended denials of religious rights do not
violate the Free Exercise Clause,” id. at 201, or RLUIPA. Id. at 194 (holding that

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“simple negligence . . . does not suffice to meet the fault requirement” in
RLUIPA).
At the most, McElroy alleges that counselor Stuart’s mistake about his prior
suspensions delayed consideration of his reinstatement for a week. As stated, on
April 26, the unit manager corrected that mistake and directed a new ICA review
of McElroy’s Common Fare status. McElroy makes no allegation that Stuart or
any other prison official purposely miscalculated the number of prior suspensions.
A prison official’s negligent review of McElroy’s suspension record that interfered
temporarily with his religious dietary practice is not sufficient to support a claim
under either the First Amendment or RLUIPA. Most importantly, the brief delay
Stuart’s error caused to the consideration of McElroy’s reinstatement to the
Common Fare program cannot qualify as a substantial burden under the First
Amendment or RLUIPA. Accordingly, I will dismiss this portion of McElroy’s
Complaint under § 1915A(b)(1) for failure to state a proper claim.
III.
For the stated reasons, I cannot find that McElroy properly exhausted his
available administrative remedies as to his first three claims before filing this
action. Accordingly, I will grant the defendants’ Motion for Summary Judgment
under § 1997e(a) as to these three claims. Because I find it clear from the record
that McElroy no longer has an available administrative remedy regarding these
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claims, I will dismiss them with prejudice. Furthermore, I will summarily dismiss
under § 1915A(b)(1), his fourth claim concerning the mistaken April 2016 finding
that he was ineligible for reinstatement to the Common Fare until 2019.
A separate Order will be entered herewith.
DATED: June 14, 2017
/s/ James P. Jones
United States District Judge

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