Brown v. Ray, Civil Action No. 7:09cv00180.

CourtUnited States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
Citation695 F. Supp.2d 292
Docket NumberCivil Action No. 7:09cv00180.
PartiesKelvin E. BROWN, Plaintiff v. Tracy S. RAY, et al., Defendants.
Decision Date26 February 2010

695 F. Supp.2d 292

Kelvin E. BROWN, Plaintiff
v.
Tracy S. RAY, et al., Defendants.

Civil Action No. 7:09cv00180.

United States District Court, W.D. Virginia, Roanoke Division.

February 26, 2010.


695 F. Supp.2d 294

Kelvin E. Brown, Pound, VA, pro se.

Richard Carson Vorhis, Office of the Attorney General, Richmond, VA, for Defendants.

OPINION

PAMELA MEADE SARGENT, United States Magistrate Judge.

Plaintiff, Kelvin E. Brown, an inmate held at Red Onion State Prison near Pound, Virginia, ("Red Onion"), filed this action pro se for monetary damages and injunctive relief under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act, ("RLUIPA"), 42 U.S.C. §§ 2000cc et seq., against various Virginia Department of Corrections, ("VDOC"), officers and officials. Jurisdiction over this matter is based upon 28 U.S.C. §§ 1331 and 1343. This case is before the undersigned magistrate judge by transfer based on the consent of the parties pursuant to 28 U.S.C. § 636(b)(1)(A).

The defendants have filed two separate motions for summary judgment,1 to both of which the plaintiff has responded. Based on the arguments contained in the parties' briefs and the accompanying affidavits and exhibits, I find that the defendants' First Motion and Second Motion should be granted in part and denied in part. The defendants also have filed a Motion To File Document Under Seal, (Docket Item No. 24) ("Motion to Seal"), which will be granted as to this proceeding only.

Brown filed his Complaint pursuant to 42 U.S.C. § 1983, alleging a violation of his constitutional rights under the First Amendment and RLUIPA.2 Brown's Complaint contains the following six claims: (1) his weekly Nation of Islam3 newspaper, "The Final Call," is being denied by VDOC officials based on racial and religious discrimination; (2) he is being denied access to Nation of Islam religious services; (3) he is being denied the necessary documentation to appeal the Publication Review Committee's decisions regarding his disapproved publications; (4) he is being discriminated against based on his race and religion; (5) the Publication Review Committee does not afford due process; and (6) Major L. Fleming is denying him access to his publications based on Brown's race and religious views. Brown is seeking the court's permission to receive his "religious and cultural publications," and he is seeking monetary damages in the amount of $1,000.00.

In their First Motion, the defendants argue that Brown's first claim, i.e. that

695 F. Supp.2d 295
The Final Call is being denied based on racial and religious discrimination, should be dismissed for the following reasons. First, the defendants argue that Brown cannot make a valid claim under the First Amendment because the issues of the disapproved newspaper constitute "material that promotes or advocates violence, disorder, insurrection or terrorist activities against individuals, groups, organizations, the government, or any of its institutions," in violation of VDOC Operating Procedure, ("OP"), 803.2(V)(L)(7), and because they constitute "material whose content could be detrimental to the security, good order, discipline of the facility, or offender rehabilitative efforts or the safety or health of offenders, staff, or others," in violation of OP 803.2(V)(L)(12). The defendants argue that these policies are related to prison security, which is a recognized compelling state interest, and which is left to the discretion of prison administrators. They argue that the fact that The Final Call also is a religious publication is incidental to the security threat that it poses under the applicable Operating Procedures

The defendants also argue that Brown fails to make out a claim under RLUIPA with regard to his first claim. Specifically, they argue that he cannot show, as he must under RLUIPA, that the government's action has created a substantial burden on his religious exercise. Moreover, they contend that, even if he could show the requisite substantial burden, the government has shown the necessary compelling interest that is furthered by the least restrictive means. In addition, the defendants argue that they are entitled to immunity from claims for monetary damages under § 1983 in their respective official capacities, and they argue that they are entitled to immunity from RLUIPA claims in both their official and individual capacities for monetary damages. Finally, the defendants contend that they are entitled to good faith qualified immunity to the extent that Brown is seeking monetary damages because he has alleged no conduct that violated clearly established statutory or constitutional rights of which a reasonable person would have known.

In their Second Motion, the defendants argue that summary judgment should be granted in their favor on Brown's remaining five claims due to his failure to exhaust all available administrative remedies with respect thereto.

I. Facts4 and Analysis

A. First Motion for Summary Judgment

Brown, a member since 1993 of the religious community known as the Nation of Islam, ("NOI"), is an inmate who has been incarcerated at Red Onion since June 2008.5 Brown began receiving the weekly NOI newspaper known as "The Final Call" beginning in August 2008 at Red Onion. He had received this same newspaper at other penological institutions, including Augusta Correctional Center, for more than 14 years, with no issues having ever been disapproved. Sometime around November 2008, Brown stopped receiving The Final Call at Red Onion, despite having paid for a subscription to the newspaper. When Brown inquired into the reason for this discontinuation, he was initially informed by defendant T. Pease, the Mailroom Supervisor at Red Onion, that the newspaper had not yet been received by the mailroom and that it would be forwarded to him upon receipt. However, on or

695 F. Supp.2d 296
about December 2, 2008, Brown was informed by defendant Major L. Fleming, the Chief of Security at Red Onion, that he had reviewed and disapproved The Final Call Vol. 28 # 5,6 as it violated OP 803.2(V)(L)(12), and he had forwarded it on to the Publication Review Committee, ("PRC"), for a final decision as to whether Brown should receive it. Thereafter, on January 9, 2009, the PRC advised Brown that it had disapproved Vol. 28 # 5 due to a violation of OP 803.2(V)(L)(12). Specifically, the PRC found that Vol. 28 # 5 constituted "material whose content could be detrimental to the security, good order, discipline of the facility, or offender rehabilitative efforts or the safety or health of offenders, staff, or others." Brown was advised that he could appeal this decision within five days through the Inmate Grievance Procedure. The following day, Brown submitted a Regular Grievance form complaining of the disapproval of this publication. On February 10, 2009, the Warden at Red Onion, defendant Tracy S. Ray, responded to Brown's grievance, finding it unfounded. Brown was advised that he could appeal this decision within five days to the Deputy Director of Operations, John Jabe, which he did. However, on February 24, 2009, Jabe upheld the Warden's decision, finding Brown's grievance unfounded, as the PRC's decision was made in accordance with OP 803.2

Between January 9, 2009, and May 18, 2009, Brown received notice from the PRC that it had reviewed the following issues of the Final Call and had determined that he could not possess them: Vol. 28 # 4, # 6, # 7, # 8, # 9, # 10, # 11, # 12, # 13, # 14, # 15, # 16, # 17, # 18, # 19, # 20, # 25, #26, #27, #28 and #29. The record reveals that the PRC disapproved Brown's possession of all of these issues based on a determination that they violated either OP 803.2(V)(L)(7), OP 803.2(V)(L)(12) or both. Brown properly utilized the Inmate Grievance Procedure at Red Onion to appeal the PRC's unfavorable determinations regarding Vol. 28 #4, #5, # 10, # 11, # 12, #13, #14, #15, #16, #17, #18, #20 and # 25. However, these decisions all were upheld by both the Warden and the Deputy Director. On May 15, 2009, Brown filed his Complaint with this court. Brown eventually exhausted all of his administrative remedies with regard to each of these disapproved issues of The Final Call by July 18, 2009.

With regard to a motion for summary judgment, the standard for review is well-settled. The court should grant summary judgment only when the pleadings, responses to discovery and the record reveal that "there is no genuine issue as to any material fact and ... the movant is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A genuine issue of fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

In considering a motion for summary judgment, the court must view the facts and the reasonable inferences to be drawn from the facts in the light most favorable to the party opposing the motion. See

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Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. Thus, the court will view the facts and inferences in the light most favorable to Brown on the defendants' motions for summary judgment. In order to be successful on a motion for summary judgment, a moving party "must show that there is an absence of evidence to support the non-moving party's case" or that "the evidence is so one-sided that one party must prevail as a matter of law." Lexington-South Elkhorn Water Dist. v. City of Wilmore, Ky., 93 F.3d 230, 233 (6th Cir. 1996)

1. Exhaustion of Administrative Remedies

The Prison Litigation Reform Act, ("PLRA"), Pub.L. No. 104-134,...

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