Argue v. Current Mdoc Special Activities Dir.

• Decision Date: 16 March 2011
• Docket Number: Case No. 1:08-cv-186
• Parties: SHANNON ARGUE #180822, Plaintiff, v. CURRENT MDOC SPECIAL ACTIVITIES DIRECTOR, in his official capacity alone, Defendant.
• Court: U.S. District Court — Western District of Michigan

SHANNON ARGUE #180822, Plaintiff,

v.CURRENT MDOC SPECIAL ACTIVITIES DIRECTOR, in his official capacity alone, Defendant.

Case No. 1:08-cv-186

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Dated: March 16, 2011

HONORABLE PAUL L. MALONEY

Magistrate Judge Carmody

OPINION and ORDER

Overruling Plaintiffs Objections and Adopting the R&R,

Granting in Part and Denying in Part the Defendant's Motion to Dismiss:

Dismissing All Claims without prejudice for failure to exhaust Administrative Remedies except Claim of August 18, 2006 Denial of Request to Receive Kosher Meals;

Dismissing Personal-Capacity RLUIPA Claims Against the MDOC Special Activities Director;

Dismissing Burnett as a Party and Substituting his Successor as Defendant Against the Lone Remaining Claim (RLUIPA Claim for Injunctive Relief in His Official Capacity)

Michigan state prisoner Shannon Argue, while incarcerated at the Brooks Correctional Facility, requested in June 2005 that the Michigan Department of Corrections ("MDOC") transfer him to a facility at which he could attend Jewish religious services, See Complaint ("Comp"), Document ("Doc") 1 and Exhibit ("Ex") B. Later that month, Argue executed a Declaration of Religious Preference form in which he alleged that he was an adherent of the Jewish religion, Doc 1 Ex A, and in July 2005 defendant David Burnett, acting as MDOC Special Activities Director, denied Argue's request to receive kosher meals, leading Argue to appeal, unsuccessfully, to several of the defendants, Comp ¶¶3 & 6 and Ex D. MDOC subsequently transferred Argue to another prison, allegedly in retaliation for his "constant requests" for a kosher diet, but it soon returned him to Brooks Correctional Facility, where he again asked for kosher meals, this time receiving no response, Comp ¶¶7-8. In January 2006 and July 2006, Argue submitted written requests to be transferred to a different prison because he was allegedly being denied the opportunity to participate in Jewish religious services and to receive kosher meals.

Sometime shortly after the July 2006 request, MDOC transferred Argue to the Muskegon Correctional Facility ("MCF"), where he submitted a kosher-meal request to the chaplain on August 10, 2006, which defendant Burnett denied in his role as Special Activities Director. See Comp¶¶ 21-24 and Exs E & J. In September 2006, Argue sent a letter to several defendants asking that he be allowed to follow his religious beliefs and alleging that Burnett had improperly denied his kosher-meal request, whereupon one of the dismissed defendants responded five days later that Argue should seek reconsideration from Burnett. See Comp ¶ 28 and Exs L & M.

Proceeding pro se, Argue filed the complaint in February 2008. All fifteen defendants jointly moved for summary judgment in September 2008, Argue filed an opposition brief in October 2008, and the defendants elected not to file a reply brief. Pursuant to 28 U.S.C. § 636 and W.D. Mich. LCivR 72.2(b), this matter was automatically referred to the United States Magistrate Judge, who issued a Report and Recommendation ("R&R") in January 2009, and both Argue and the defendants filed timely objections. The court overruled Argue's objections and adopted most of the R&R. The court rejected a portion of the R&R, however, on the basis of the defendants' objections. The court dismissed fourteen of the fifteen defendants: six without prejudice due to lack of service (Unknown D'Epifanio, Asst. Deputy Warden; Unknown Swierenga, Chaplin; Unknown Malone, Asst. DeputyWarden, Unknown Aardsma, Chaplin; Unknown Shields, Counsellor; and Unknown Chappee) and eight with prejudice on the merits of Argue's claims (Wardens Mary Berghuis and S. Harry, Deputy Wardens R. Smith and Terry Bradford, MDOC Administrator Jim Armstrong, Resident Unit Manager R. Anderson, Regular Unit Manager Anthony Henry, and Grievance Coordinator J. Minnerick). The court also dismissed Argue's First Amendment retaliation claim as to all defendants for failure to state a claim on which relief could be granted. Finally, the court dismissed money-damage claims against all defendants in their official capacities, and denied Argue's request for additional time and assistance to serve some defendants

Surviving was only one claim against one defendant: Argue's RLUIPA claim against Burnett. (Because nobody objected to the previous R&R's conclusion that Burnett is not entitled to qualified immunity, the court adopted that conclusion.) Argue's complaint attached three grievances which he pursued regarding the situation giving rise to this controversy, see Doc 1 Exs F, H And K, and he does not allege that he filed any other grievances related to the claims herein. As the Magistrate correctly notes, R&R at 6-7, a prisoner asserting a conditions-of-confinement claim pursuant to 42 U.S.C. § 1983 must first properly exhaust all state administrative remedies, see also Lafountain v. Martin, 334 F. App'x 738, 740 (6^th Cir. 2009) (citing Woodford v. Ngo, 548 U.S. 81, 93 (2006)), which entails compliance with the relevant state agency's deadlines and other critical procedural rules, see also Scott v. Ambani, 577 F.3d 642, 647 (6^th Cir. 2009) (J. Siler, joined by J. Cook, with J. McKeague separately concurring in pertinent part) (citing Woodford, 548 U.S. at 9091), and the court determines compliance by reference to the similar exhaustion rules which govern habeas corpus petitions, see also Benner v. Correctional Med. Servs., Inc., 2009 WL 2515823, *4 (W.D. Mich. Aug. 14, 2009) (Gordon Quist, J.) (citing Woodford, 548 U.S. at 88). As noted by the Magistrate (R&R at 8), the relevant state rules are set forth in MDOC's Policy Directive ("PD")03.02.130, which provides that before a prisoner files a written grievance, he must attempt to resolve the issue orally with the MDOC employee involved and, if that does not resolve the issue, he must file a written grievance within five business days, see also Hardy v. Bolton, 2011 WL 673936, *2 (W.D. Mich. Feb. 17, 2011) (Robert Holmes Bell, J.) (citing PD 03.02.130).

Of the three written grievances attached to Argue's complaint in this action, two contain no reference to defendant Burnett: the grievance filed January 20, 2006 regarding kosher meals and the grievance filed February 20, 2006 regarding the refusal to transfer him to a prison which offered the desired worship services, see Comp Exs F and H. The court agrees with the Magistrate (R&R at 8-9) that Argue has not substantiated his unpersuasive, conclusory assertions that administrative remedies were unavailable as to those two grievances as they might pertain to defendant Burnett. First, Argue asserts that his transfer among different MDOC facilities somehow prevented him from obtaining the names of possible defendants, see Plaintiffs Objections filed February 3, 2011 ("P's Objs") at 2-3 (citing, inter alia, Goeber v. Lee County, 510 F.3d 1312, 1323 (11^th Cir. 2007) ("If we allowed jails and prisons to play hide-and-seek with administrative remedies, they could keep all remedies under wraps until after the lawsuit is filed and then uncover them and proclaim that the remedies were available all along.") and Underwood v. Wilson 151 F.3d 292, 295 (5^th Cir. 1998) (approving of the premise that an administrative remedy was inadequate where prison officials interfered with or ignored the prisoner's attempts to avail himself of that remedy)). But Argue fails to identify the transfer(s) he has in mind, let alone explain when those transfers took place in relation to the offending MDOC decisions, let alone show how the transfers deprived him of sufficient time or opportunity to identify suitable targets for his grievance by name.

Second, Argue alleges that he "has been medically diagnosed with a mental impairment that has left him completely illiterate and not being able to fully understand that he should have beenkeeping specific records of any and all violations of his RLUIPA rights", P's Objs at 2. Argue fails to specify the name or nature of the alleged mental impairment, let alone provide competent evidence of the diagnosis, and therefore he provides the court with no basis to conclude that any impairment rendered him unable to read or write, or unable to understand what MDOC policy directive or the case law required of him. Cf. Farabee v. Johnson, 139 F. App'x 799 (4^th Cir. 2005) (per curiam) (JJ. Widener & Shedd, with J. Gregory dissenting) (although the record showed that habeas petitioner had suffered psychiatric problems since early childhood, had been institutionalized at age ten, had been treated at twenty psychiatric institutions over the past fifteen years, and had been adjudicated not guilty of earlier crimes by reason of insanity, "those facts do not establish that his condition rendered him unable to exhaust his state court remedies during the appropriate periods"; even though he was institutionalized during time for filing direct appeal, under Virginia law that did not necessarily mean that he was insane during that whole period, and he did not show that he was).

Conversely, neither side objects to the Magistrate's determination (R&R at 9) that Argue properly exhausted administrative remedies as to defendant Burnett / the MDOC Director of Special Activities with regard to his kosher-meal grievance filed September 4, 2006 (Doc 1 Ex K), and accordingly the court adopts that determination without further discussion. As a consequence, Argue's RLUIPA claim regarding Burnett's August 18, 2006 denial of his kosher-meal request will not be dismissed for failure to exhaust administrative remedies.

Next, the court agrees with the Magistrate Judge (R&R at 10 (citing Dawson v. Burnett, 631 F. Supp.2d 878, 887-893 (W.D. Mich. 2009) (Maloney, C.J.)) that Argue's personal-capacity RLUIPA damage and injunctive-relief claims against Burnett must be dismissedbecause, as a matter of law, such RLUIPA claims do not lie against prison officials in...