United States District Court, W.D. Oklahoma
Timothy D. DeGiusti, United States District Judge
matter is before the Court for review of the Report and
Recommendation (“Report”) issued August 15, 2017
[Doc. No. 121], by United States Magistrate Judge Bernard M.
Jones pursuant to 28 U.S.C. § 636(b)(1)(B). Judge Jones
recommended the Court grant in part and deny in part
Defendant Shane Wyatt's Motion for Summary Judgment [Doc.
No. 89]. Judge Jones also recommended the Court deny
Plaintiff's Cross-Motion for Summary Judgment [Doc. No.
91] and dismiss Plaintiff's claim for punitive damages
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
time for filing objections to the Report expired on September
5, 2017.Defendant Jim Gerlach
(“Defendant”) timely objected [Doc. No. 123]. The
Court, having conducted a de novo
review, overrules Defendant's objections and
adopts the Report in its entirety.
a former federal prisoner appearing pro se, seeks
monetary relief pursuant to 42 U.S.C. §
1983. Alleging a violation of his First
Amendment right to religious exercise, Plaintiff asserts that
during his confinement he was denied kosher meals, access to
religious materials, and the ability to engage in daily
raises the affirmative defense that Plaintiff failed to
exhaust his administrative remedies under the Prison
Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). He
also claims § 1997e(e) of the PLRA, limiting a
prisoner's recovery of damages for mental or emotional
injury, bars Plaintiff's claims. Alternatively, Defendant
moves for summary judgment on the following grounds: (1)
Plaintiff has failed to show that his religious beliefs are
sincere; (2) Plaintiff has failed to show that his religious
exercise rights were substantially burdened; and (3)
Plaintiff has failed to show that the violation of his
religious exercise rights resulted from an unconstitutional
policy or custom. [Doc. No. 89].
responded to Defendant's Motion for Summary Judgment
[Doc. No. 100] and filed a separate motion for summary
judgment [Doc. No. 91] on his § 1983 claims, contending
that he had established a violation of his First Amendment
rights. Plaintiff separately moves for summary judgment
pursuant to the Religious Land Use and Institutionalized
Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1 et
seq. Judge Jones correctly noted Plaintiff did not bring
a claim pursuant to RLUIPA in his Complaint nor sought leave
to amend the Complaint to assert such a claim. Thus, review
is limited to the § 1983 claims alleging a violation of
Plaintiff's First Amendment rights.
determining whether summary judgment is appropriate, the
relevant inquiry is “whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-252 (1986). Before the burden
shifts to the nonmoving party, the moving party must meet its
“initial responsibility” of establishing that no
genuine issue of material fact exists and it is entitled to
summary judgment as a matter of law. Fed.R.Civ.P. 56(a);
Reed v. Bennett, 312 F.3d 1190, 1194
(10th Cir. 2002); Anderson, 477 U.S. at
247 (court shall grant summary judgment “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”). “[S]ummary judgment will not lie if the
dispute about a material fact is ‘genuine, ' that
is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248.
the moving party meets its burden, the nonmoving party
“must do more than simply show that there is some
metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., LTD., et al., v. Zenith
Radio Corp., et al., 475 U.S. 574, 586 (1986). “If
the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.”
Anderson, 477 U.S. at 249-250 (internal citations
omitted); see also Rice v. United States, 166 F.3d
1088, 1092 (10th Cir. 1999) (non-moving party
“must present more than a scintilla of
evidence”). The adverse party must identify
“specific facts showing that there is a genuine
issue for trial.” Matsushita Elec. Indus. Co.,
LTD, et al., 475 U.S. at 587. Moreover, unsupported
conclusory allegations are not sufficient to defeat summary
judgment. Matthiesen v. Banc One Mortgage Corp., 173
F.3d 1242, 1247 (10th Cir. 1999). Finally, in
evaluating a motion for summary judgment, a court must
consider the evidence in the light most favorable to the
nonmoving party and “resolve all ambiguities and
disagreements” in favor of that party. Bee v.
Greaves, 744 F.2d 1387, 1389 (10th Cir.
Plaintiff's Response to Defendant's Motion for
asserts in his objections that Plaintiff's Response to
Defendant's Motion for Summary Judgment does not meet the
parameters of Fed.R.Civ.P. 56(e)(2) or the Local Rules.
Specifically, Defendant contends that Plaintiff did not refer
with particularity to those portions of the record upon which
he relies, and therefore, Defendant's statement of
material facts should be deemed admitted. [Doc. No. 123] at
2-3. Under Rule 56(e)(3), the Court has an independent duty,
even in the absence of a response by the adverse party, to
determine that summary judgment is appropriate. See Reed
v. Bennett, 312 F.3d 1190, 1194-1196 (10th
Cir. 2002); Murray v. City of Tahlequah, 312 F.3d
1196, 1200 (10th Cir. 2002). The Court is not
limited to the materials cited in Plaintiff's response,
but rather may consider other materials in the record.
Fed.R.Civ.P. 56(c)(3). Moreover, a pro se
litigant's pleadings are to be liberally construed and
held to a less stringent standard than formal pleadings
drafted by lawyers. Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991); Erickson v.
Pardus, 551 U.S. 89, 94 (2007). For reasons discussed
below, the Court finds Judge Jones properly assessed the
facts and evidence of record in the light most favorable to
Plaintiff's position, as required by Rule 56.
Exhaustion of Administrative Remedies
Jones concluded that Defendant defeated his exhaustion
defense by his own summary judgment submissions.
Specifically, Judge Jones noted that Defendant
“disingenuously relies on the grievance procedures of
the Grady County Jail and limits the exhaustion defense to
Plaintiff's failure to submit grievances pursuant to
those procedures, ” while acknowledging elsewhere in
the motion that Plaintiff, as a federal inmate, was required
to comply with a different procedure. See Report
[Doc. No. 121] at 7-8. Judge Jones further noted, and the
record reflects, that Plaintiff submitted
“paperwork” to Federal Liaison Eric Forsythe and
subsequently met with him, consequently resulting in some
relief to Plaintiff. Id. at 8; see also
Gerlach's Aff. [Doc. No. 89-1] at ¶¶ 15-20;
Forsythe's Aff. [Doc. No. 89-3] at ¶¶ 12-17.
Judge Jones indicated some uncertainty as to whether
Plaintiff had sufficient time to grieve issues relating to
kosher meals served given his transport from the Grady County
Jail on February 24, 2015. See Report [Doc. No. 121]
at 9. Finally, Judge Jones called attention to the
conflicting provisions in the Grady County Jail Inmate
Handbook [Doc. No. 89-15] and the 9.01 Inmate Grievances
Policy [Doc. No. 89-16] concerning jail grievance procedures
and noted some concern in the lack of evidence demonstrating
that the policies and procedures were disseminated to inmates
or jail employees. See Report [Doc. No. 121] at 9,
continues to maintain in his objections to the Report that it
is “undisputed” that Plaintiff never submitted a
formal grievance pursuant to the Inmate Handbook.
See Def.'s Objections [Doc. No. 123] at 4.
Failing to address the conflicting grievance procedures,
Defendant asserts administrative remedies were available and
Plaintiff should have exhausted them. Id. Although
Defendant points to nothing in the record to show that
Plaintiff was aware of the grievance procedures or that he
was required to follow both procedures, Defendant maintains
unawareness does not excuse the exhaustion requirements under
the PLRA. Id. at 5.
Court is not persuaded by Defendant's arguments.
Administrative exhaustion is an affirmative defense on which
Defendant bears the burden of proof. See Jones v.
Bock, 549 U.S. 199, 216 (2007); Roberts v.
Barreras, 484 F.3d 1236, 1241 (10th Cir.
2007). According to Defendant, when a federal detainee, like
Plaintiff, has an issue or concern at the Grady County Jail,
he must submit a Federal Detainee's Request for Services
to Federal Liaison Forsythe. [Doc. No. 89] at ¶ 31;
Gerlach's Aff. [Doc. No. 89-1] at ¶ 12;
Forsythe's Aff. [Doc. No. 89-3] at ¶ 9. Forsythe
will generally respond to the Federal Detainee's Request
for Services as soon as practicable. Id.
Defendant's own submissions, that is exactly what
transpired here. Federal Liaison Forsythe “received
paperwork from [Plaintiff] regarding his request to use the
prayer materials contained in his property box.”
Gerlach's Aff. [Doc. No. 89-1] at ¶ 12;
Forsythe's Aff. [Doc. No. 89-3] at ¶ 9. Forsythe
subsequently met with Plaintiff. After their meeting,
Plaintiff's prayer materials were placed in the central
control room, so he could have access to them, and he was
given his Hebrew bible to keep in his cell. Gerlach's
Aff. [Doc. No. 89-1] at ¶¶ 16-17; Forysthe's
Aff. [Doc. No. 89-3] at ¶¶ 13-14. Plaintiff and
Forsythe also discussed the fact that Plaintiff had not been
receiving kosher meals, and Forsythe corrected the
information on Plaintiff's book-in sheet, which
erroneously indicated he was allergic to
“Kosher.” Gerlach's Aff. [Doc. No. 89-1] at
¶ 20; Forysthe's Aff. [Doc. No. 89-3] at ¶ 17.
Defendant recognizes that this was the procedure Plaintiff
was required to follow as a federal detainee, to support his
exhaustion defense Defendant asserts that Plaintiff failed to
follow the procedures outlined in the Grady County Inmate
Handbook (“Inmate Handbook”) and supplemental
9.01 Inmate Grievances Policy. Absent from the record is any
evidence that Plaintiff was required as a federal detainee to
also follow the Grady County Jail policies and procedures for
initiating a grievance. Nonetheless, it appears Plaintiff
also complied with those procedures.
Inmate Handbook provides that “[b]efore submitting a
‘Request to Staff' form, an inmate shall attempt to
resolve the issue by talking with a responsible authority or
other appropriate staff member.” [Doc. No. 89-15] at 8.
“If the issue is not resolved by verbal communications
… the inmate shall submit a ‘Request to
Staff' form.” Id. The Inmate Handbook
further provides that “[b]efore filing a formal
grievance, the inmate must try to resolve the complaint by
communicating issues to a Detention Officer.”
Id. at 9. Plaintiff met with Forsythe on February
14, 2015, and verbally communicated his issues.
Because the issues continued to persist, Plaintiff requested
a Request to Staff form on February 21, 2015. [Doc. No. 89-10];
Gerlach's Aff. [Doc. No. 89-1] at ¶ 29;
Forsythe's Aff. [Doc. No. 89-3] at ...