Browning v. Seifert et al

Filing 71

MEMORANDUM OPINION AND ORDER ADOPTING THE REPORT AND RECOMMENDATION: It is ORDERED that Magistrate Seibert's 66 Report and Recommendation is adopted; Defendants Yokum 32 and Workman 48 Motions to Dismiss are granted; Plaintiff's [1 ] Complaint is dismissed with prejudice as to Defendants Yokum and Workman; Defendants N. Seifert, Taylor, Miller, E. Seifert, Rubenstein, Ryder and Yahnke' 35 Motion to Dismiss is denied and ORDERS these Defendants to answer the Complaint; Pl aintiff's 56 Motion for Preliminary Injunction is denied; and the Clerk shall enter a separate judgment order. Signed by District Judge Irene M. Keeley on 3/18/14. (copy Plaintiff) (Attachments: # 1 Certified Mail Return Receipt)(cnd) Modified relationship on 3/18/2014 (cnd).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JASON BROWNING,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:13CV23
(Judge Keeley)

NICKI SEIFERT ET AL.,
Defendants.
MEMORANDUM OPINION AND ORDER ADOPTING
THE REPORT AND RECOMMENDATION [Dkt. No. 66]
Pending before the Court is the magistrate judge’s Report and
Recommendation (“R&R”), (dkt. no. 66), concerning the motion to
dismiss, or in the alternative, motion for summary judgment, (dkt.
No 32), filed by the defendant, Robert Yokum (“Yokum”); the motion
to dismiss, (dkt. no. 48), filed by the defendant, Mary Ann Workman
(“Workman”);

the motion to dismiss, (dkt. no. 35), filed by the

defendants,

Nicki

Seifert

(“Taylor”),

Brandi

Miller

(“N.

Seifert”),

(“Miller”),

Evelyn

Michael
Seifert

Taylor
(“E.

Seifert”), James Rubenstein (“Rubenstein”), C.J. Ryder (“Ryder”),
and Greg Yahnke (“Yahnke”) (collectively “the defendants”); and the
motion for preliminary injunction, (dkt. no. 56), filed by the pro
se plaintiff, inmate Jason Browning (“Browning”).

For the reasons

that follow, the Court ADOPTS the recommendation in the magistrate
judge’s R&R.
I. PROCEDURAL HISTORY
On February 11, 2013, Browning filed a complaint with this
Court seeking relief pursuant to 42 U.S.C. § 1983. (Dkt. No. 1).

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MEMORANDUM OPINION AND ORDER ADOPTING
THE REPORT AND RECOMMENDATION [DKT. NO. 66]
His complaint alleges that the defendants have violated his First
Amendment right of free exercise of religion and the Religious Land
Use and Institutionalized Persons Act (“RLUIPA”) by 1) denying him
a kosher diet, 2) denying him the ability to wear religious
apparel, and 3) denying him the right to worship weekly and on
special holidays. Id.
The defendants filed motions seeking dismissal of Browning’s
complaint for failure to state a claim upon which relief may be
granted. Yokum filed a Motion to Dismiss on May 2, 2013; N.
Seifert, Miller, Yahnke, E. Seifert, Taylor, Ryder, and Rubenstein
filed a Motion to Dismiss on May 2, 2013; and Workman filed a
Motion to Dismiss on July 2, 2013.
In accord with LR PL P 2, Magistrate Judge James E. Seibert
undertook an initial screening of the case and, on May 3,

2013,

issued a Roseboro notice to Browning that instructed him to respond
to the motions filed by Yokum and N. Seifert, Taylor, Miller, E.
Seifert, Rubenstein, Ryder, and Yahnke within 21 days.

Browning

filed a motion for enlargement of time to respond to the motions to
dismiss, (dkt. no. 41), which the magistrate judge granted.1

He

then filed a response in opposition to both motions on June 10,

1

The magistrate judge extended Browning’s time to respond to
July 16, 2013.
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MEMORANDUM OPINION AND ORDER ADOPTING
THE REPORT AND RECOMMENDATION [DKT. NO. 66]
2013. (Dkt. No. 47). The magistrate judge issued a second Roseboro
notice to Browning on July 8, 2013, instructing Browning to respond
to Workman’s motion to dismiss.

Pursuant to that notice, Browning

filed a response in opposition to Workman’s motion on July 25,
2013. (Dkt. No. 54).
Browning then filed a motion for preliminary injunction on
July 26, 2013, seeking an order requiring the defendants to provide
him with a kosher diet, allow him to wear his yarmulke at all
times, and allow him to keep his facial hair while this action is
pending.

(Dkt. No. 56).

The defendants responded to Browning’s

motion on August 30, 2013.

(Dkt. Nos. 60 & 61).

On January 28, 2014, the magistrate judge issued an R&R on the
pending motions in which he recommended that Yokum and Workman’s
motions

to

dismiss

be

granted

due

to

Browning’s

failure

to

establish that either defendant had violated his civil rights. The
magistrate judge further recommended that N. Seifert, Taylor,
Miller, E. Seifert, Rubenstein, Ryder, and Yahnke’s motion to
dismiss be denied because the defendants failed to illustrate that
they were entitled to immunity from this action.

Finally, the

magistrate judge recommended that Browning’s motion for preliminary
injunction be denied because he failed to make a clear showing that

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MEMORANDUM OPINION AND ORDER ADOPTING
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he would be irreparably harmed absent receiving preliminary relief.
(Dkt. No. 66).
Defendants N. Seifert, Taylor, Miller, E. Seifert, Rubenstein,
Ryder,

and

Yahnke

objected

to

the

R&R,

contending

that

the

magistrate judge had erroneously concluded that they are not
entitled to Eleventh Amendment immunity, and that the defendant had
exhausted his administrative remedies. (Dkt. No. 69). Browning did
not file objections to the R&R, despite having been warned that his
failure to do so would result in waiver of his appellate rights as
to any issues not decided in his favor.
Following de novo review of the portions of the R&R to which
the defendants have objected, the Court finds that the defendants’
objections are without merit.
II.

FACTUAL BACKGROUND

Browning is an inmate at the Northern Regional Jail and
Correctional Facility (“Northern Correctional Facility”).
also a practicing Orthodox Jew who

He is

alleges that, during his time

at the Northern Correctional Facility, his right of free exercise
of religion has been violated in various ways.
Specifically, Browning alleges that he has been denied a
kosher diet, that the prison kitchen refuses to serve him a kosher
meal, and instead, requires him to eat a vegetarian or non-pork
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MEMORANDUM OPINION AND ORDER ADOPTING
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alternative, neither of which is kosher.

He further asserts that

the prison commissary does not offer an adequate selection of
kosher foods, nor does it label which foods are kosher.

Prison

officials also allegedly denied Browning’s request to receive a
shipment of kosher foods from the Aleph Institute. (Dkt. No. 1).
Browning further claims that he is denied the ability to
properly worship in prison. He argues that the prison only offers
weekly religious services for Messianic, and not Orthodox, Jews.
He further alleges that he is not allowed to wear his yarmulke, a
traditional Jewish garment, at all times.

Finally, he claims that

he is denied participation in special holidays, including Rosh
Hashanah, Hanukkah, Yom Kippur, and Passover. Id.
As to the specific defendants, Browning alleges that N.
Seifert,

his

former

unit

manager,

received

his

grievances but did nothing to correct the problem.

food-related
Similarly, he

alleges that Miller, his current unit manager, has received several
of his grievances but continues to do nothing to address his
issues.

Browning contends that Yahnke, the Associate Warden of

Programs

at

the

Northern

Correctional

Facility,

and

Taylor,

Chaplain at the Northern Correctional Facility, have also denied
him the items and relief he seeks, including kosher meals, wearing
a yarmulke, the ability to worship at a weekly service, the

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MEMORANDUM OPINION AND ORDER ADOPTING
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opportunity to celebrate Jewish holy days, and the ability to feast
and fast.

Additionally, Browning states that Taylor is the

official with whom he has the most interaction regarding his
complaints.
Browning

alleges that E. Seifert, who is the Warden at the

Northern Correctional Facility, is aware of all the grievances he
has filed, and has “willfully, deliberately, and methodically”
denied his requests.

He further contends that E. Seifert engages

in targeted efforts to hinder his ability to worship in prison.
Browning contends that Rubenstein, who is the Commissioner of
the West Virginia Department of Corrections, was responsible for
reviewing the denial of his grievances and merely “rubber stamped”
the Warden’s denials without giving them proper consideration.

He

further contends that Ryder, the religious coordinator for the West
Virginia Department of Corrections, also failed to properly review
the denial of his religious-related grievances.
Browning

alleges

that

Yokum,

the

supervisor

for

ARAMARK

Correctional Catering Services, LLC, operates a food service that
does not cater to the kosher dietary needs of Orthodox Jews.
Finally, Browning contends that Workman, store supervisor for Keefe
Store at the Northern Correctional Facility, operates a store
without kosher food offerings.

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THE REPORT AND RECOMMENDATION [DKT. NO. 66]
In sum, Browning alleges that the defendants have deliberately
denied his multiple requests and grievances regarding his religious
needs.

He seeks injunctive and monetary relief to correct these

alleged wrongs.
III.
A.

LEGAL STANDARDS

Pro Se Pleadings
Because Browning is acting pro se, the Court must liberally

construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct.
285, 50 L.Ed.2d 251(1976); Haines v. Kerner, 404 U.S. 519, 92 S.Ct.
594, 30 L.Ed.2d 652 (1972)(per curiam); Loe v. Armistead, 582 F.2d
1291 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147 (4th Cir.
1978).

Even a pro se complaint is subject to dismissal, however,

if the Court cannot reasonably read the pleadings to state a valid
claim on which the plaintiff could prevail.
174 F.3d 1128 (10th

Barnett v. Hargett,

Cir. 1999). A court may not construct the

plaintiff’s legal arguments for him, nor should it “conjure up
questions never squarely presented.” Beaudett v. City of Hampton,
775 F.2d 1274 (4th Cir. 1985).
B.

Motion to Dismiss
Federal

Rule

of

Civil

Procedure

12(b)(6)

provides

for

dismissal of a case when a complaint fails to state a claim upon
which relief can be granted. Dismissal under Rule 12(b)(6) is
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inappropriate unless it appears beyond a reasonable doubt that the
plaintiff cannot prove any set of facts to support his allegations.
Revene v. Charles County Comm’rs, 882 F.2d 870 (4th Cir. 1989).
Courts, however, are not required to accept conclusory allegations
couched as facts and nothing more when ruling on a motion to
dismiss pursuant to 12(b)(6).
In order to survive a motion to dismiss, a plaintiff must
state a plausible claim for relief that is based on appropriate
legal authority and includes more than conclusory or speculative
factual allegations. “[O]nly a complaint that states a plausible
claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal,
556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “Threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice” because courts are not bound
to

accept

as

true

a

legal

conclusion

couched

as

a

factual

allegation. Id.
IV.

ANALYSIS

A. Motion to Dismiss of the Defendants N. Seifert, Taylor, Miller,
E. Seifert, Rubenstein, Ryder, and Yahnke
1.

Eleventh Amendment Immunity

These defendants argue that the magistrate judge improperly
concluded that they are not entitled to Eleventh Amendment immunity

8

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MEMORANDUM OPINION AND ORDER ADOPTING
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in this action.

(Dkt. No. 69).

They contend that, because

Browning did not specifically state he was suing them in their
individual capacities, the Court must presume he intended to sue
them in their official capacities; consequently, they contend the
Eleventh Amendment shields them from liability. These objections
are without merit.
The Fourth Circuit has rejected the presumption that, if a
plaintiff in a § 1983 actions fails to explicitly state that he is
suing the defendants in their individual capacities, a Court must
assume that he is suing them in their official capacities. See
Biggs v. Meadows, 66 F.3d 56, 58 (4th Cir. 1995); Edwards v.
Ashley, 70 F.3d 111, 112 (4th Cir. 1995). Rather, when a plaintiff
fails to specifically allege capacity, the Fourth Circuit instructs
courts to “examine the nature of the plaintiff’s claims, the relief
sought, and the course of proceedings to determine whether a state
official is being sued in a personal capacity.” Biggs, 66 F.3d at
61.
In applying Fourth Circuit precedent to the case at hand, the
Court

finds

defendants’

that,

despite

official

the

duties,

fact

that

Browning’s

he

described

allegations

in

the
his

complaint focus on their specific actions relating to him; Browning
explains how each individual defendant has been indifferent, and in

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MEMORANDUM OPINION AND ORDER ADOPTING
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some instances openly hostile, to his religious and dietary needs.
In doing so, he details his specific interactions with each
defendant and their refusal to accommodate his requests.
Browning is also seeking compensatory and punitive damages,
which

are

unavailable

in

official

capacity

suits.

Id.

Furthermore, in response to the defendants’ motion to dismiss,
Browning has clarified that he intended to sue the defendants in
their

individual,

rather

than

official,

capacities.

Finally,

although the defendants have not asserted qualified immunity as a
defense to Browning’s federal constitutional claims, the Court
finds

that,

Browning’s

overall,

intent

to

the
sue

factors
the

in

this

defendants

in

case
their

demonstrate
individual

capacities.
Because the defendants are not being sued in their official
capacities, the Eleventh Amendment does not shield them from
liability.

Hafer v. Melo, 5033 U.S. 21 (1991)(providing that the

Eleventh Amendment does not shield public officials from being sued
in their individual capacities). Accordingly, the magistrate judge
correctly concluded that the defendants are not protected by the
Eleventh Amendment.

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2. Exhaustion of Administrative Remedies
The

defendants

also

argue

that

the

magistrate

judge

erroneously concluded that Browning had adequately exhausted his
administrative remedies before pursuing this action.

(Dkt. No.

69). They contend that none of Browning’s claims, as pled, has been
administratively exhausted. Id.

After carefully reviewing the

complaint and the attached grievances, however, the Court finds
that Browning has sufficiently plead exhaustion.
Under the Prisoner Litigation Reform Act of 1995 (“PLRA”), as
amended, prisoners must exhaust “such administrative remedies as
are available” prior to filing suit in federal court challenging
prison conditions.

42 U.S.C.A. § 1997e (a).

In Jones v. Block,

549 U.S. 199, 127 S.Ct. 910, 166, L.E.2d 798 (2007), the Supreme
Court

held

that

failure

to

exhaust

available

administrative

remedies is an affirmative defense, rather than a jurisdictional
requirement, and thus, inmates need not plead exhaustion, and do
not bear the burden of proving it.

See also, Moore v. Bennett, 517

F.3d 717, 725 (4th Cir. 2008). Rather, only “proper exhaustion” is
required, meaning that the inmate must plead facts that establish
he

followed

the

prison’s

administrative

rules

for

filing

a

grievance, including when and how to file a complaint. Woodford v.
Ngo, 548 U.S. 81 (2006).
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MEMORANDUM OPINION AND ORDER ADOPTING
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The West Virginia Jail and Correctional Facility Authority’s
Handbook of Inmate Rules and Procedures sets forth the following
2

five step process for grievances:
1. If an inmate wishes to use the grievance procedure,
jail personnel will provide the inmate with an inmate
with an inmate grievance form.
2. The inmate shall complete
Administrator; the form, as
shall be transmitted to the
jail personnel without being
a reasonable time, not later

the form, addressed to the
completed by the inmate,
Administrator’s office by
read or altered and within
than the end of the shift.

3. The Administrator upon receipt of the grievance may
reject the grievance if it appears on its face to have
been filed in bad faith.
4. The Administrator, if the grievance is not rejected
pursuant to Paragraph 3, shall provide the inmate an
opportunity to be heard before a decision is made on the
grievance. The Administrator may assign a staff member to
investigate the complaint and report written findings
within forty-eight hours and shall inform the inmate of
such action.
5. The Administrator shall provide a written decision
with regard to the grievance to the grieving inmate
within twenty-four (24) hours of the receipt of the
investigation report. Such written decision shall include
a statement of the action taken concerning the grievance,
the reasons for such action, and procedures for appeal of
the decision.
Any inmate who is dissatisfied with the Administrator’s decision
must file an appeal to the Executive Director within five days of

2

Available at: http://apps.sos.wv.gov/adlaw/csr/readfile.
aspx?DocId=18978&Format=PDF
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MEMORANDUM OPINION AND ORDER ADOPTING
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the receipt of the Administrator’s decision, and must include a
copy of the initial complaint and the Administrator’s decision.
Although

the

burden

is

not

on

the

plaintiff

to

plead

exhaustion, the § 1983 form complaint that this Court gives to
inmates asks if the inmate followed any applicable grievance
procedure, and to attach all grievances and responses.

Browning

attached several grievances and responses to his complaint, (dkt.
no. 1), a review of which establishes that he did follow the
prison’s administrative procedures for filing a grievance; he filed
his grievances on the prison-approved form, waited for those
grievances to be denied before bringing this action, and then
attached a record of those grievances to his complaint. Thus,
contrary to the defendants’ objection, Browning has sufficiently
pleaded exhaustion.
B. Remaining Motions
The

parties

did

not

object

to

the

magistrate

judge’s

recommendations on either Yokum or Workman’s motions to dismiss or
Browning’s motion for a preliminary injunction.

Consequently,

finding no clear error, the Court adopts the magistrate judge’s
recommendations regarding these motions.

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MEMORANDUM OPINION AND ORDER ADOPTING
THE REPORT AND RECOMMENDATION [DKT. NO. 66]
V.

CONCLUSION

For the reasons discussed, the Court:
1.

ADOPTS the Report and Recommendation in its entirety(dkt.
no. 66);

2.

GRANTS the motions to dismiss of defendants, Yokum, (dkt.
no. 32), and Workman, (dkt. no. 48), and DISMISSES WITH
PREJUDICE the complaint as to these defendants;

3.

DENIES the motion to dismiss of defendants N. Seifert,
Taylor, Miller, E. Seifert, Rubenstein, Ryder, and Yahnke
(dkt. no. 35) and ORDERS those defendants to answer the
complaint; and

4.

DENIES Browning’s motion for preliminary injunction.
(Dkt. No. 56).

It is so ORDERED.
Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk of
Court to enter a separate judgment order and to transmit copies of
both orders to counsel of record and to the pro se plaintiff,
certified mail, return receipt requested.
Dated: March 18, 2014.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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