Tillman v. Allen

• Decision Date: 09 May 2016
• Docket Number: Civil Action No. 3:13CV748
• Citation: 187 F.Supp.3d 664
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Michael A. Tillman, Plaintiff, v. Charles H. Allen, Defendant.

187 F.Supp.3d 664

Michael A. Tillman, Plaintiff,

v.Charles H. Allen, Defendant.

Civil Action No. 3:13CV748

United States District Court, E.D. Virginia.

Signed May 9, 2016

Filed May 10, 2016

Michael A. Tillman, Haynesville, VA, pro se.

MEMORANDUM OPINION

James R. Spencer, Senior United States District Judge

Michael A. Tillman, a Virginia inmate proceeding pro se and in forma pauperis , filed this civil action under 42 U.S.C. § 1983.¹ The action proceeds on his Particularized Complaint (ECF No. 32). In the Particularized Complaint, Tillman argues that, during his incarceration at the Haynesville Correctional Center ("HCC"), Defendant Charles H. Allen, the Warden of HCC, has violated his right to practice his Wiccan religion. The Court construes Tillman to raise the following claims for relief:²

Claim One: Defendant Allen placed a substantial burden on Tillman's exercise of his religion in violation of the Religious Land Use and Institutionalized Persons Act ("RLUIPA")³ by:

(a) failing to allow him to attend Wiccan congregational services and to celebrate Wiccan holidays;

(b) failing to allow him to partake in the Common Fare diet;

(c) failing to allow him to possess and use Wiccan religious objects;

(d) denying Tillman the ability to transfer back to Powhatan Correctional Center where he was able to practice Wicca; and,

(e) confiscating Tillman's religious property.

Claim Two: Defendant Allen violated Tillman's First Amendment⁴ right to free exercise of his religion by:

(a) failing to allow him to attend Wiccan congregational services and to celebrate Wiccan holidays;

(b) failing to allow him to partake in the Common Fare diet;

(c) failing to allow him to possess and use Wiccan religious objects;

(d) denying Tillman the ability to transfer back to Powhatan Correctional Center where he was able to practice Wicca; and,

(e) confiscating Tillman's religious property.

The matter is now before the Court on Defendant Allen's Motion for Summary Judgment. (ECF No. 41.) Despite providing Tillman with appropriate Roseboro⁵ notice, Tillman has not responded. This matter is ripe for judgment. For the reasons stated below, Defendant Allen's Motion for Summary Judgment will be GRANTED. Claims One (b), (c), and (e) and Claims Two (b), (c), and (e) will be DISMISSED WITHOUT PREJUDICE because Tillman failed to exhaust his administrative remedies. Defendant Allen does not meet his burden to demonstrate that Tillman failed to exhaust his administrative remedies for Claims One (a) and (d) and Claims Two (a) and (d). Nevertheless, these claims will be DISMISSED WITH PREJUDICE because Tillman fails to demonstrate a violation of RLUIPA or his First Amendment rights.

I. SUMMARY JUDGMENT

A. Standard for Summary Judgment

Summary judgment must be rendered "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). It is the responsibility of the party seeking summary judgment to inform the court of the basis for the motion, and to identify the parts of the record which demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file." Id. at 324, 106 S.Ct. 2548 (internal quotation marks omitted). When the motion is properly supported, the nonmoving party must go beyond the pleadings and, by citing affidavits or " ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ " Id. (quoting former Fed. R. Civ. P. 56(c) and 56(e) (1986)).

Defendant Allen asks the Court to dismiss Tillman's claims, inter alia , because Tillman failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a). Because the exhaustion of administrative remedies is an affirmative defense, Defendant Allen bears the burden of pleading and proving lack of exhaustion. Jones v. Bock , 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). In support of his Motion for Summary Judgment, Defendant Allen submits: (1) his own affidavit (Mem. Supp. Mot. Summ. J. Ex. I ("Allen Aff."), ECF No. 42-1); (2) the affidavit of Rose T. Brown, the Grievance Coordinator at HCC (Id. Ex. II ("Brown Aff"), ECF No. 42-2); (3) a copy of Virginia Department of Corrections ("VDOC") Operating Procedure § 866.1 (id. Encl. A ("Operating Procedure § 866.1"));⁶ (4) copies of grievances material submitted by Tillman (id. Encl. B-F); (5) the affidavit of L. Baker, the Property Officer at HCC (Id. Ex. III ("Baker Aff."), ECF No. 14-3); and (6) VDOC Operating Procedure § 802.1 (Baker Aff. Encl. A ("Operating Procedure § 802.1")); and, (7) an inmate request form submitted by Tillman (Id. Encl. B).

As Tillman failed to respond, Tillman fails to cite the Court to any evidence that he wishes the Court to consider in opposition to the Motion for Summary Judgment. See Fed. R. Civ. P. 56(c)(3) (emphasizing that "[t]he court need consider only the cited materials" in deciding a motion for summary judgment).⁷ Tillman's complete failure to present any evidence to counter Defendant Allen's Motion for Summary Judgment permits the Court to rely solely on Defendant Allen's submissions in deciding the Motion for Summary Judgment. See Forsyth v. Barr , 19 F.3d 1527, 1537 (5th Cir.1994) (" ‘Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.’ " (quoting Skotak v. Tenneco Resins, Inc. , 953 F.2d 909, 915 & n. 7 (5th Cir.1992) )).

Accordingly, the following facts are established for the Motion for Summary Judgment. The Court draws all permissible inferences in favor of Tillman.

II. UNDISPUTED FACTS

A. VDOC's Grievance Procedure

Operating Procedure § 866.1, Offender Grievance Procedure, is the mechanism used to resolve inmate complaints in the VDOC. (Brown Aff. ¶ 4.) Offenders are oriented to the offender grievance procedure when they are initially received into the VDOC. (Id. ¶ 6.) Operating Procedure § 866.1 requires that, before submitting a formal grievance, the inmate must demonstrate that he or she has made a good faith effort to resolve the grievance informally through the procedures available at the institution to secure institutional services or resolve complaints. (Operating Procedure § 866.1.V.A.) Generally, a good faith effort requires the inmate to file an informal complaint form. (Id. § 866.1.V.B.1.) If the informal resolution effort fails, the inmate must initiate a regular grievance by filling out the standard "Regular Grievance" form. (Id. § 866.1.VI.A.2.)

"The original Regular Grievance (no photocopies or carbon copies) should be submitted by the offender through the facility mail system to the Facility Unit Head's Office for processing by the Institutional Ombudsman/Grievance Coordinator." (Id. § 866.1.VI.A.2.b.) The offender must attach to the regular grievance a copy of the informal complaint. (Id. § 866.1. VI. A.2.a.) Additionally, "[i]f 15 calendar days have expired from the date the Informal Complaint was logged without the offender receiving a response, the offender may submit a Grievance on the issue and attach the Informal Complaint receipt as documentation of the attempt to resolve the issue informally." (Id. § 866.1.V.A.2.) A formal grievance must be filed within thirty days from the date of the incident or occurrence, or the discovery of the incident or occurrence, except in instances beyond the offender's control. (Id. § 866.1.VI.A.I.)

1. Grievance Intake Procedure

Prior to review of the substance of a grievance, prison officials conduct an "intake" review of the grievance to assure that it meets the published criteria for acceptance. (Id. § 866.1.VI.B.) A grievance meeting the criteria for acceptance is logged in on the day it is received, and a "Grievance Receipt" is issued to the inmate within two days. (Id. § 866.1. VI.B.3.) If the grievance does not meet the criteria for acceptance, prison officials complete the "Intake" section of the grievance and return the grievance to the inmate within two working days. (Id. § 866.1.VI.B.4.) If the inmate desires a review of the intake decision, he or she must send the grievance form to the Regional Ombudsman within five calendar days of receipt. (Id. § 866.1.VI.B.5.)

2. Grievance Appeals

Up to three levels of review for a regular grievance exist. (Id. § 866.1.VI.C.) The Facility Unit Head of the facility in which the offender is confined is responsible for Level I review. (Id. § 866.1.V.C.1.) If the offender is dissatisfied with the determination at Level I, he may appeal the decision to Level II, a review which is conducted by the Regional Administrator, the Health Services Director, or the Chief of Operations for Offender Management Services. (Id. § 866.1.VI.C.2.) The Level II response informs the offender whether he or she may pursue an appeal to Level III. (Id. § 866.1.VI.C.2.g.)

B. Facts Pertaining to Tillman's Exhaustion of Administrative Remedies

On July 8, 2013, Tillman submitted an informal complaint (# HCC-13-INF-00843) wherein he complained that upon his arrival at HCC a printed handkerchief and an amulet were confiscated from his property. (Brown Aff. ¶ 11; id. Encl B.) Tillman indicated that he practiced Wiccan and that the handkerchief was a talisman banner of protection and the amulet was of a Wiccan deity. (Brown Aff. ¶ 11.) On July 16, 2013, Lt. Manning responded to Tillman's informal complaint and informed Tillman that the Wiccan practice was not recognized at HCC and that Tillman could mail these items out of the institution. (Brown Aff. ¶ 12; id. Encl. B.)

On July 22, 2013, Tillman submitted a regular grievance stating that Lt....