Mitchell v. Angelone

• Decision Date: 18 November 1999
• Docket Number: No. CIV.A. 3:97CV492.,CIV.A. 3:97CV492.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Thomas F. MITCHELL, Jr. Plaintiff, v. Ronald ANGELONE, et al. Defendants.

82 F.Supp.2d 485

Thomas F. MITCHELL, Jr. Plaintiff, v. Ronald ANGELONE, et al. Defendants.

No. CIV.A. 3:97CV492.

United States District Court, E.D. Virginia, Richmond Division.

November 18, 1999.

COPYRIGHT MATERIAL OMITTED

Thomas F. Mitchell, Jr., Haynesville, VA, for Thomas F. Mitchell, Jr., plaintiff.

Pamela Anne Sargent, Office of the Attorney General of Virginia, Richmond, VA, for Ronald J. Angelone, Director, Virginia Department of Corrections, David A. Garraghty, Chief Warden, Virginia Department of Corrections, M.C. Millard, Associate Warden, Virginia Department of Corrections, Sergeant D. Walker, Officer, Virginia Department of Corrections, defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

RICHARD L. WILLIAMS, District Judge.

Thomas F. Mitchell, Jr., a Virginia state prisoner proceeding pro se, brings this suit pursuant to 42 U.S.C. § 1983. Mitchell alleges his constitutional rights were violated by the Defendants' policy prohibiting his procurement of Native American spiritual items.

The Defendants filed a motion for summary judgment on May 20, 1999. The motion fails to comply with Rule 56(b) of the Local Rules for the United States District Court for the Eastern District of Virginia. Accordingly, the Defendants' motion for summary judgment will be denied.

The matter was referred to the United States Magistrate Judge for an evidentiary hearing pursuant to 28 U.S.C. § 636(b). The evidentiary hearing was held on June 17, 1999. The Magistrate Judge entered a Report and Recommendation on June 23, 1999.

"The magistrate makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with this court." Estrada v. Witkowski, 816 F.Supp. 408, 410 (D.S.C. 1993) (citing Mathews v. Weber, 423 U.S. 261, 270-71, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976)). This court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). "The filing of objections to a magistrate's report enables the district judge to focus attention on those issues — factual and legal — that are at the heart of the parties' dispute." Thomas v. Arn, 474 U.S. 140, 147, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). "Frivolous, conclusive or general objections need not be considered by the district court." See Nettles v. Wainwright, 677 F.2d 404, 409 n. 8 (5th Cir.1982); Johnson v. United States, 906 F.Supp. 1100, 1102 (S.D.W.Va. 1995).

The Court has reviewed the transcript of the evidentiary hearing, and the parties' objections thereto. As set forth below, the Court sustains in part and overrules in part of parties' objections. The Report and Recommendation of the United States Magistrate Judge, as modified, is accepted and adopted.

I. Objections

Because of difficulties obtaining a transcript of the evidentiary hearing, Mitchell was granted an extension of time until October 13, 1999, to file his objections.

Mitchell's objections, executed on October 16, 1999 are untimely. Moreover Mitchell's sole object that the transcription of the record was inadequate to file objections to the conclusions of the Magistrate Judge lacks merit. While the transcription of the taped evidentiary hearing contains certain omissions, such omissions are not of such a degree as to prevent Mitchell from filing objections. Moreover, in reaching its findings of facts and conclusions of law, the Court has reviewed the tape recording of Mitchell's evidence at the evidentiary hearing. This review satisfies the Court that the lack of any objections by Mitchell is attributable to Mitchell's failure to introduce any persuasive evidence in support of his First Amendment claim, rather than any defect in the transcription.

The Defendants objected to the Magistrate Judge's Finding of Fact Number 4, that inmates who prove their Native American heritage are automatically entitled to an exemption from the restrictions on personal property. The Court sustains this objection in part, and has so modified its findings of fact. See Findings of Fact ¶ 8.

The Defendants direct the remainder of their objections to the Magistrate Judge's recommendation that injunctive relief is warranted on Mitchell's equal protection claim. These objections are overruled. The action is not moot. See Findings of Fact ¶ 1; Conclusions of Law ¶ 1. Race is not an accurate litmus test for whether an inmate sincerely believes in Native American religious beliefs. See Findings of Fact ¶ 14; Conclusion of Law ¶ 12. The neutrality of Department of Corrections Operating Procedure 856 is irrelevant to Mitchell's equal protection claim. See Findings of Fact ¶ 5. Defendants' exemption policy is not reasonably related to legitimate security concerns. See Conclusions of Law ¶¶ 10, 11, 12, 13, 14.

Upon review of the record, including the transcript and the tape of the June 17, 1999 evidentiary hearing, the Report and Recommendation and the objections thereto, the Court makes the following Findings of Fact and Conclusions of Law.

II. Findings of Fact

1. Mitchell is an inmate currently in the custody of the Virginia Department of Corrections ("VDOC"). Mitchell's claims arise out of his incarceration at the Greensville Correctional Center ("GCC"), in 1997 and 1998. GCC houses a significant portion of the total inmates within the VDOC. See Virginia Department of Corrections: Average Daily Populations for 1998-Major Institutions (visited on October 27, 1999), us/d oc/Planning/PSR2.htm>. In January of 1995, Mitchell was transferred to GCC. (June 17, 1999 Hearing Transcript "Hr. T." at 26.) In June of 1998, Mitchell was transferred to Deerfield Correctional Center. Subsequently, in August 1999, Mitchell was transferred to Haynesville Correctional Center. See Clerk's Record.

2. Defendant Ronald Angelone is the Director of VDOC (Hr. T. at 30.), and defendant David Garraghty is the Warden of GCC. Id. at 58. Defendant Marie Millard is an employee of the VDOC at GCC. Id. at 73.

3. Mitchell is a member of the group H.E.A.R.T. (Heritage Examined Around Redman Traditions) which practices some Native American rituals. Id. at 26.

4. HEART is not a religion nor a church. Id. 26-28.

5. Within the VDOC, the possession of personal property by inmates is generally subject to restrictions set forth in Department Operating Procedure ("DOP" 856). (Hr. T. at 33.) However, the administrator(s) of each facility may grant inmates exemptions for religious personal property which is not specifically authorized by DOP 856, on a case-by-case basis, provided the item does not compromise institutional security. Id.; DOP 856, Attachment 3A, at page 5.

6. In 1996, Mitchell requested approval for the purchase of herbs and an abalone shell. (Hr. T. at 26.) Initially, he received no response. After two subsequent requests, Millard told Mitchell that he would not be able to obtain these items until he could prove he was a Native American. Id. at 27.

7. In May of 1997, Millard and Garraghty advised all members of the HEART organization that they could not obtain additional nonconforming property items associated with Native American rituals, such as herbs and abalone shells, without proof that the inmate was actually a Native American. (Hr.T. at 80-83).

8. A Native American inmate who submits proof of his Native American heritage may receive an exemption from property restrictions for items necessary to practice his faith, provided the warden concludes that the items are safe for that institution. (Hr. T. at 27, 64, 79).

9. Regardless of the sincerity of an inmate's faith in Native American spiritual practices, a Non-Native American inmate is precluded from receiving such an exemption. (Hr. T. at 60-65.)

10. Although Millard and Garraghty prohibit Non-Native American inmates from obtaining nonconforming religious items, the defendants allow Non-Native American inmates, who profess to believe in Native American religions, to congregate and practice their professed beliefs. Id. at 68, 79.

11. Each of the following items represents a security risk:

a. Herbs and grasses, which yield a pungent odor when burning, easily masking all other smells, and which yield false positives in field tests for the presence of marijuana. Id. at 76,

b. Abalone shells, which can be used as a clubbing weapon or a broken into a sharp cutting instrument. Id. at 76-77.

12. Possession of herbs creates particular problems in identification and could consume valuable prison resources to make proper identification. Id. at 49, 53.

13. Herbs and abalone shells pose additional security risks because they could be stolen by other inmates and misused.

14. The defendants failed to present any convincing evidence that race is a prerequisite for a sincere belief in Native American theology. (Hr. T. 41-43, 83-101.)

III. Discussion

In his opening statement Mitchell asserted that his religion "is based upon the Native American spiritual practice." (Hr. T. at 7). However, Mitchell failed to produce any evidence concerning the basic tenets of his religion or of HEART. Mitchell failed to state why he needs any of the required items for any reason. On the other hand, the Defendants have set forth valid reasons why no person should be permitted to acquire or possess the herbs and abalone shell Mitchell requested. Defendant Angelone testified that, in his opinion, no inmate should have access to such items, regardless of faith, creed or race because of the grave danger the items present to prison security.

Surprisingly, the Defendants have created an exception based entirely on race, i.e., Native Americans may acquire these admittedly dangerous items by providing a Bureau of Indian Affairs card and the reasons why they need the items to practice their sincerely held religion. The Defendants refuse to entertain requests for these items by inmates of any other race. As a Non-Native American,...