Ciempa v. Jones

• Decision Date: 23 August 2010
• Docket Number: Case No. 08–CV–0685–CVE–TLW.
• Citation: 745 F.Supp.2d 1171
• Parties: David CIEMPA, Plaintiff,v.Justin JONES, Walter Dinwiddie, Debbie L. Morton, Al Blair, Dick Bartley, Kameron Harvanek, G. McClary, Curtis Hood, James Cave, Rick Boyett, John Doe sued as “Unknown Employee,” Chris Redeagle, Leo Brown, Defendants.
• Court: U.S. District Court — Northern District of Oklahoma

745 F.Supp.2d 1171

David CIEMPA, Plaintiff,

v.Justin JONES, Walter Dinwiddie, Debbie L. Morton, Al Blair, Dick Bartley, Kameron Harvanek, G. McClary, Curtis Hood, James Cave, Rick Boyett, John Doe sued as “Unknown Employee,” Chris Redeagle, Leo Brown, Defendants.

Case No. 08–CV–0685–CVE–TLW.

United States District Court, N.D. Oklahoma.

Aug. 23, 2010.

David Ciempa, Hominy, OK, pro se.Lisa Erickson Endres, Office of the Attorney General, Oklahoma City, OK, for Defendants.

OPINION AND ORDER

CLAIRE V. EAGAN, District Judge.

Now before the Court are Defendants' Motion to Dismiss Plaintiff's 42 U.S.C. § 1983 Civil Rights Complaint or Alternatively Motion for Summary Judgment and Brief in Support (Dkt. # 42), Plaintiff's Motion to Reassert his Motion for Preliminary Injunction (Dkt. # 53), Plaintiff's Motion to Supplement his Response to Defendants' Motion for Summary Judgment (Dkt. # 56), plaintiff's letter request to supplement the record (Dkt. # 57), and Plaintiff's Second Motion to Supplement his Response to Defendants' Motion for Summary Judgment (Dkt. # 58). David Ciempa, currently incarcerated in the Oklahoma prison system and appearing pro se, alleges that defendants violated his rights under the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc et seq. (RLUIPA), by preventing him from receiving certain religious reading materials, denying him space and time in the prison chapel, denying his request for a Halal diet, and denying his request to purchase pork-free hygienic products from the prison canteen.

I.

Ciempa is currently incarcerated with the Oklahoma Department of Corrections (ODOC).¹ From July 13, 2006 to July 10, 2008, he was housed at the Dick Conner Correctional Center (DCCC). On July 10, 2008, he was transferred to the Jess Dunn Correctional Center (JDCC). On July 24, 2009, he was transferred back to DCCC. Dkt. # 43–2, at 1–2. Defendant Justin Jones is (or was, at the relevant times) the Director of ODOC. Dkt. # 18, at 1. Defendant Walter Dinwiddie was, at the relevant times, the DCCC warden.² Id. Defendant Debbie Morton is (or was, at the relevant times) a DCCC “Director's Designee.” ³ Id. at 2. Defendant Al Blair is (or was, at the relevant times) a DCCC Warden's Assistant. Id.; Dkt. # 42, at 20. Defendant Dick Bartley is (or was, at the relevant times) the DCCC Mail Room Supervisor. Dkt. # 18, at 1; Dkt. # 43, at 20. Defendant Kameron Harvanek is (or was, at the relevant times) the DCCC Acting Warden. Dkt. # 18, at 1; Dkt. # 43, at 20. Defendant Gary McClary ⁴ is (or was, at the relevant times) a Security Personnel Sergeant at DCCC. Dkt. # 18, at 1; Dkt. # 43, at 20. Defendant Curtis Hood is (or was, at the relevant times) the DCCC Chief of Security. Dkt. # 18, at 1; Dkt. # 43, at 16. Defendant James Cave is (or was, at the relevant times) a DCCC Procedures Officer. Dkt. # 18, at 1; Dkt. # 42, at 20. Defendant Rick Boyett is (or was, at the relevant times) DCCC Acting Deputy Warden, Administration. Dkt. # 18, at 1; Dkt. # 43, at 20. Defendant Doe is DCCC Deputy Warden, Administration. Id. Defendant Chris Redeagle is (or was, at the relevant times) the DCCC Acting Deputy Warden. Id. at 3. Defendant Leo Brown is (or was, at the relevant times) the ODOC Agency Chaplain. Dkt. # 43–10, at 2–3.

A. The Five Percent Nation, or the Nation of Gods and Earths

Ciempa describes himself as a “strict adherent of the teachings of Clarence 13X Smith, a.k.a Father Allah ..., founder of the Five Percent ... Nation, a.k.a. The Nation of Gods and Earths [ (NGE) ]....” ⁵ Dkt. # 18, at 3. He describes the NGE as “a God-centered Culture.” Id. at 11. An NGE Office of Cultural Affairs publication describes the NGE as “a culture free from but equivalent to any mainstream religion.” Dkt. # 52, Ex. N, at 5. ⁶ The NGE “traces its roots to the Black Muslim movement that emerged in the midtwentieth century and most [directly] to the Nation of Islam ... with which the NGE shares some teaching and its central text....” Dkt. # 53, at 2. The NGE's central text is known as the 120°. Id.

B. ODOC Mail Policy

ODOC has promulgated guidelines relating to correspondence, publications, and audio/video media. OP–030117 states, in relevant part:

Publications are prohibited that ... Advocate terrorism, criminal behavior, racial, religious, or national hatred, or any material that creates an unsafe environment for the inmates or staff.... The facility is not authorized to implement a prohibition on any materials that inmates may receive by subscription, such as a magazine, newspaper, or other similar type of periodical. Each issue of the material has to be received and reviewed to determine whether or not it violates the correspondence restrictions of this agency.... Correspondence containing gang related material, information, photographs, or symbols are prohibited.

Dkt. # 42–4, at 3–5.

The guidelines require ODOC facilities to designate an employee or group of employees to review materials coming into the facility. Facility heads or their designees and prison employees who review incoming material are required to undergo yearly training in the review, recognition, and disposal of contraband material. Id. at 4. Inmates are notified of receipt of prohibited material using a prohibited correspondence notification form. Id. They are given the option of “either having the issue returned to the sender or sent home at the inmate's expense, or having the material destroyed.” Id. Outgoing non-privileged mail is also subject to inspection. “Mail violating correspondence guidelines will be returned to the inmate with an explanation of the violation unless it is used as evidence in a court/administrative hearing. The inmate may also be placed on the restricted correspondence list and/or subject to disciplinary action.” Id. at 6–7.

C. ODOC Grievance Procedures

ODOC has promulgated a procedure, OP–090124, for offender grievances. ⁷ First, an offender must try to resolve his or her complaint informally. If not resolved informally, he or she must submit a Request to Staff (RTS) form to the appropriate staff member. If the complaint is not resolved, then the offender may submit a formal grievance, using the Offender Grievance Report Form (GRF). The GRF is reviewed and a Grievance Response from Reviewing Authority is issued. An inmate may appeal the grievance response upon specified grounds only. The administrative review authority or chief medical officer, as appropriate, performs the final review of an appeal. Such review is ODOC's final ruling.

D. The Five Percenter Newspaper

Ciempa states that he ordered a one-year subscription to The Five Percenter newspaper in the spring of 2006. Dkt. # 18, at 3. The newspaper is “a central link and mechanism of communication with members of the Five Percenter community outside prison....” Id. at 5. He states that he received four or five copies until November 2006, at which time Volume 12.3 was prohibited. Defendant Bartley, the DCCC Mailroom Customer Service Representative states that Volume 12.3 was the first issue of The Five Percenter received at the DCCC mailroom since he began working there in August 2003. Dkt. # 43–3, at 32. Bartley believed that Volume 12.3 contained racist material and sent it before the DCCC Literary Review Committee (LRC) on November 16, 2006. Id. The same day, the LRC determined that “the five percenter newspaper is a raceist [sic] publication that advocates segregation hate and the overthrow of the ‘whiteman,’ ” and recommended that the issue be prohibited. Id. at 35. On November 17, 2006, Ciempa received a prohibited correspondence notification, which stated that The Five Percenter was denied because it was a “raciest [sic] publication.” Id. at 37. There is no evidence in the record that Ciempa filed a GRF regarding Volume 12.3.

An article titled “Your Prison & Institution Reporter” in Volume 12.3 states, “[t]o be perfectly clear the Blackman is God and the whiteman is the devil .... in these prisons they lie, cheat, steal and try to master the original man using time as a weapon. From the principal enforcers to the policymakers the devil is doing his best to use our people as tools and also as a slave.” Another article states, “[e]ven the bible says the Whiteman was made and was evil in nature,” and “[s]o it is clear from the beginning or genesis the whiteman has been the evil that lives, the devil in the flesh.” Dkt. # 43–3, Attachment 11.

On January 30, 2007, Ciempa filed an RTS with the LRC protesting the prohibition of The Five Percenter. Dkt. # 43–2, at 10. Defendant Blair responded, “this issue has already been answered the Five Percenter will not be allowed.” Id. at 10. On February 2, 2007, Ciempa filed GRF No. 07–295, stating that “on or about 1/25/07, I was notified by the Literary Review Committee that I was prohibited from receiving the Five Percenter newspaper....” Id. at 8. The reviewing authority denied Ciempa's grievance on February 15, 2007, stating:

OP–030117 states “Correspondence is prohibited that advocates terrorism, criminal behavior, racial, religious, or national hatred, or any material that crqtes [sic] an unsafe environment for the inmates or staff.[”] The Five Percenter Newspaper that was reviewed advocates all of the abave [sic]. Each publication will be reviewed separately on its contents, this is not a blanket ban on all publications of the five percenter newspaper just the one reviewed. Relief Denied.

Id. at 11. Ciempa appealed. Id. His appeal was denied because “there has been nothing offered by [Ciempa] to the Director which indicates the reviewing authority's response is not proper.” Id. at 13. Ciempa received another prohibited correspondence notification regarding The Five Percenter on May 15, 2007. Dkt. # 1, at 23. There is no evidence that Ciempa filed a GRF regarding this denial. There is no evidence of an issue of...