Douty v. Ballard et al

Filing 59

MEMORANDUM OPINION AND ORDER adopting and incorporating the 56 PROPOSED FINDINGS AND RECOMMENDATION, denying plaintiff's 58 MOTION for Leave to File an Amended Complaint, and dismissing this action from the docket. Signed by Judge John T. Copenhaver, Jr. on 3/18/2015. (cc: counsel of record; plaintiff) (tmh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON

FRED D. DOUTY,
Plaintiff,
Civil Action No. 2:13-24714

v.

DAVID BALLARD, Warden,
Mt. Olive Correctional Complex, and
PAUL PERRY, Associate Warden of Security,
Mt. Olive Correctional Complex, and
STEVE CAUDILL, Captain,
Mt. Olive Correctional Complex, and
RONNIE WILLIAMS, Captain,
Mt. Olive Correctional Complex, and
CHRIS BLAKE, Principal,
Mt. Olive Correctional Complex, and
JAMES PENNINGTON, Educational Instructor,
Mt. Olive Correctional Complex, and
MIKE CLEMENS, Case Manager,
Mt. Olive Correctional Complex,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending are plaintiff’s motion to amend the complaint,
filed March 16, 2015, defendant Chris Blake’s motion to dismiss
the complaint, filed August 29, 2014, and a motion to dismiss
filed by defendants David Ballard, Steve Caudill, Paul Perry,
and Ronnie Williams, filed September 2, 2014.

This action was previously referred to Dwane L.
Tinsley, United States Magistrate Judge, who has submitted his
Proposed Findings and Recommendations (“PF&R”) pursuant to the
provisions of 28 U.S.C. § 636(b)(1)(B).

The magistrate judge

recommends in the PF&R that the court grant defendant Chris
Blake’s motion to dismiss, as well as the motion to dismiss
filed by defendants Ballard, Caudill, Perry and Williams, and
dismiss this action.
On February 27, 2015, the PF&R was filed.
12, 2015, plaintiff filed his objections.

On March

The objections were

followed by his March 16, 2015, motion to amend the complaint.
The plaintiff’s first two objections are imprecise.
He contends that the magistrate judge misapplied the Rule
12(b)(6) standards but he fails to specifically identify the
issues to which that asserted misapplication relates.

Inasmuch

as the court cannot determine the precise nature of these two
objections, they are not meritorious.
Plaintiff’s third objection contends that the
magistrate judge improperly denied him the ability to conduct
discovery.

He asserts that answers he provided to questions

posed to him in Quality of Life (“QOL”) materials, which he
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purposely answered in a nonsensical and offensive manner,
demonstrate a need for discovery.1
unsupported.

The contention is

It appears that the materials necessary for

plaintiff to challenge QOL program requirements are already in
his possession.

He also asserts that he needs to know the “in-

depth intricate details about” the “martial law” program at the
facility but fails to explain how that discovery will further
his claims herein.2

1

The QOL program is a behavior driven, progressive incentive
system consisting of five levels. Inmates qualify for
advancement to the next level by completing required behavioral
and educational programs. Some of the answers provided by
plaintiff on his Quality of Life materials include the
following:
1. “Anger can be reduced by eradicating jews [sic] and
christians [sic]”
2. “[I]t’s worth listening to the aliens after being probed
in your holes.”
3. “My anger makes me want [to] chop up some red-neck
chicken necks like your mom.”
(Objecs. Ex. A at 1). Plaintiff claims he responded this way in
order to demonstrate flaws in the QOL program and that the
answers were deemed acceptable by correctional officials. The
court is unable to draw that inference from the two exhibits to
which Mr. Douty has drawn attention. Exhibit A, page 1, is the
journal entry in which the above comments appear. Exhibit A,
page 2, is simply a generic notification that he completed all
of the lessons in the QOL program. There is no indication that
corrections officials ever saw the subject journal entry.
2

Plaintiff uses the phrase to connote an alleged policy
that putatively permits unreasonable uses of force against
3

Plaintiff’s fourth objection is that Count One of his
complaint should not have been recommended for dismissal.

Count

One alleges a deprivation of his religious liberties in
violation of the Religious Land Use and Institutionalized
Persons Act, 42 U.S.C. § 2000cc-1(a)(1)-(2), Pub. L. No. 106–
274, 114 Stat. 803 (“RLUIPA”).

The magistrate judge recommends

dismissal of the RLUIPA claim.

Plaintiff asserts, in part, that

certain privileges were removed pending his forced disavowal of
his Jewish beliefs.

He cites Exhibit B in support.

Exhibit B,

however, deals only with his non-receipt of correspondence text
books.

Correctional officials advised him that he could not

participate in correspondence courses until he returned to the
general population.

He offers no plausible allegation that

animus motivated that decision.
The magistrate judge’s recommendation is correct.
Correctional officials have demonstrated that plaintiff has
multiple alternative outlets to exercise his religious beliefs
and that the requirement of religious-neutral responses on the
QOL forms does not constitute a substantial burden.

In the

event plaintiff had demonstrated a substantial burden on his

inmates in the segregation units, essentially suspending the
usual rules and regulations on the proper use of force.
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free exercise, the requirement that he complete his educational
programming in a manner demonstrating mastery of the materials
deemed necessary to his safe and smooth return to the general
population furthers a compelling governmental interest and is
the least restrictive means of achieving the same.

The

objection is not meritorious.
Plaintiff’s fifth objection challenges the recommended
dismissal of Count Two.

Count Two alleges a denial of due

process arising out of correctional officials’ failure to allow
him to attend his PRO-committee hearing on May 22, 2013, and
denying him the right to present evidence in his favor.

The PRO

committee is explained at page 18, footnote 3 of the PF&R.

As

noted by the magistrate judge, success on the due process claim
hinges upon plaintiff demonstrating that the burden he suffered
constitutes an atypical and significant hardship.
Our court of appeals recently observed the Supreme
Court’s admonition that “‘[t]he difficulties of operating a
detention center must not be underestimated by the courts,” and
that “‘correctional officials . . . must have substantial
discretion to devise reasonable solutions to the problems they
face.’”

Prieto v. Clarke, 2015 WL 1020718, 7 (4th Cir. Mar. 10,

2015) (quoting Florence v. Bd. of Chosen Freeholders, ––– U.S. –
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–––, ––––, 132 S. Ct. 1510, 1515, 182 L.Ed.2d 566 (2012)).

The

magistrate judge correctly concluded that plaintiff did not
suffer an atypical and significant hardship.

That results in

the follow-on conclusion that he has failed to demonstrate
either a liberty interest or his right to a hearing or other
process under the circumstances presented.

The objection is not

meritorious.
Plaintiff’s sixth objection contends the magistrate
judge erred in recommending Count Three be dismissed.

Count

Three alleges a violation of the Eighth Amendment prohibition on
cruel and unusual punishment.

As noted by the magistrate judge,

plaintiff alleges that he was transferred from the Quilliams I
segregation unit to the Quilliams II unit that is under “martial
law” in retaliation for failing to denounce his Jewish faith.
He claims those penalties were reversed after he wrote certain
anti-Semitic statements on his QOL materials.
Plaintiffs’ objections do not cure the fundamental
defect in his amended complaint.

His assertions, as the

magistrate judge noted, “contain[] nothing more than conclusory
statements that the defendants placed him in the most
restrictive area of the prison as a punishment for expressing
his religious beliefs.”

(PF&R at 27).
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In his objections,

plaintiff appears to point to the uses of unreasonable force on
unnamed fellow inmates and unspecified failures to temper the
force used in the facility.

The absence of particularity is

troubling, especially given the veritable roadmap offered by the
magistrate judge concerning the defects in the amended
complaint.

The court concludes the objection is not

meritorious.
Plaintiff’s seventh objection asserts that the
magistrate judge erred in recommending dismissal of Count Four.
Court Four alleges an equal protection violation.

As the

magistrate judge notes, the claim is largely duplicative of the
allegations in Count One.

That observation aside, plaintiff has

persistently declined the invitation to explain the most basic
element of his equal protection claim.

The magistrate judge

observed as follows:
The plaintiff’s Responses do not specifically address
the defendants’ contention that he must be able to
demonstrate that he was treated differently than other
similarly-situated inmates in the QOL program. He
simply conclusively states that his allegations are
sufficient to state a plausible claim that he was
discriminated against and denied equal protection.
(PF&R at 29).

The same deficiency identified by the magistrate

judge remains unaddressed in plaintiff’s objections.

He has

failed to explain how he was treated differently than other
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similarly-situated inmates in the QOL program.

His objection is

thus not meritorious.
The

eighth

objection

contends

dismissal of Count Five is erroneous.

that

the

recommended

Count Five alleges that

plaintiff’s freedom of speech has been abridged.

The claim is

controlled by the analysis prescribed in our court of appeals’
recent decision in Wall v. Wade, 741 F.3d 492 (4th Cir. 2014),
which revisited the factors first announced in Turner v. Safley,
482 U.S. 78 (1987):
A prison regulation is reasonable and thus
permissible if it satisfies the four factors
established in Turner v. Safley, 482 U.S. 78, 107
S.Ct. 2254, 96 L.Ed.2d 64 (1987). That test asks: (1)
whether there is a “valid, rational connection”
between the prison regulation or action and the
interest asserted by the government, or whether this
interest is “so remote as to render the policy
arbitrary or irrational”; (2) whether “alternative
means of exercising the right . . . remain open to
prison inmates”; (3) what impact the desired
accommodation would have on security staff, inmates,
and the allocation of prison resources; and (4)
whether there exist any “obvious, easy alternatives”
to the challenged regulation or action. Lovelace, 472
F.3d at 200 (citing Turner, 482 U.S. at 89–92, 107 S.
Ct. 2254).
As a preliminary matter, “prison officials may
appropriately question whether a prisoner's
religiosity, asserted as the basis for a requested
accommodation, is authentic.” Cutter v. Wilkinson, 544
U.S. 709, 725 n. 13, 125 S.Ct. 2113, 161 L.Ed.2d 1020
(2005); see Gillette v. United States, 401 U.S. 437,
457, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971) (“[T]he
‘truth’ of a belief is not open to question; rather,
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the question is whether the objector's beliefs are
‘truly held.’”) (internal quotation marks omitted).
Accepting that prisons may limit religious
accommodations to sincere believers, the question in
this case is whether ROSP's specific means of testing
Wall's sincerity was permissible; that is, whether
ROSP was allowed to require him to possess specific,
physical items of Islamic faith as proof of belief.
Wall, 741 F.3d at 499.
First, defendants appear to assert that plaintiff’s
QOL responses were not indicative of one pursuing a good faith
effort to demonstrate the behavioral skills and attitude
necessary to reside peacefully and compliantly in the general
population.

Even if this assessment involved a suspicion that

plaintiff’s religious-based beliefs were not truly held based
upon his conduct, it would not necessarily be unlawful under
Wall.

In any event, the circumstances here do not give rise to

a conclusion that the QOL response procedure was arbitrary or
irrational.
Second, it appears undisputed that plaintiff may
generally speak and write freely respecting his religious
beliefs.

He thus has alternative means of exercising his First

Amendment rights.

Third, the need for compliant responses

beyond those devoted entirely to religious beliefs are
apparently deemed necessary in order for corrections officials
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to accurately appraise how plaintiff will interact with staff
and inmates once returned to the general population.

There does

not appear to be any “obvious, easy alternatives” for the more
probing and searching responses apparently desired by
corrections officials.

Under Wall and Safley, then, the

restrictions placed upon plaintiff’s responses do not offend his
freedom to otherwise speak freely.

His objections to the

contrary are not meritorious.
The final objection is plaintiff’s contention that he
should have been given leave to amend his amended complaint.
The court considers the objection in tandem with his recently
filed motion to amend, which arrived well after the PF&R on
March 16, 2015.

The motion to amend, which is vague and spans a

single paragraph, does not attach a proposed second amended
pleading.
On August 5, 2014, the magistrate judge permitted
filing of the amended complaint.

Following filing of the

motions to dismiss, plaintiff had a period of six months to seek
a further amendment.

The docket discloses he failed to move to

amend the complaint during that time frame.
only after the PF&R was filed.
amendment comes too late.

The motion came

The court concludes the

Permitting the amendment at this time
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would, among other things, prejudice the defendants, who are
poised to have their substantial dispositive motions
adjudicated.

This is especially so inasmuch as plaintiff

provides only the most minimal detail respecting how he plans to
amend his pleading, thus thwarting a futility analysis.
Based upon the foregoing discussion, it is ORDERED as
follows:
1.

That the PF&R be, and it hereby is, adopted and
incorporated herein;

2.

That the motion to amend be, and hereby is, denied;
and

3.

That this action be, and hereby is, dismissed and
stricken from the docket.
The Clerk is directed to send a copy of this written

opinion and order to counsel of record and plaintiff.
ENTER:

March 18, 2015

John T. Copenhaver, Jr.
United States District Judge

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