Opinion
C/A 4:21-03506-BHH-TER
05-24-2023
REPORT AND RECOMMENDATION
Thomas E. Rogers, III, United States Magistrate Judge
This is a civil action filed pro se by Don Survi Chisolm (“Plaintiff”) on October 27, 2021, under 42 U.S.C. § 1983, alleging a violation of his constitutional rights.Plaintiff filed an amended complaint on November 29, 2021. This matter is currently before the court on Defendants' motion for summary judgment. (ECF No. 47).
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d),DSC. Because this is a dispositive motion, the report and recommendation is entered for review by the District Judge.
As the Plaintiff is proceeding pro se, the court issued an order on or about September 20, 2022, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. Plaintiff filed a response in opposition on October 26, 2022. (ECF No. 51). Defendants filed a reply on December 29, 2022. (ECF No. 64). After a review of Plaintiff's response and Defendants' reply, the court provided Plaintiff an additional opportunity to file a more responsive pleading addressing Defendants' arguments. (ECF No. 66). Plaintiff failed to do so and this matter is now ripe for review.
Although styled and docketed as a response to Defendants' motion for summary judgment, Plaintiff's filing sought additional time to conduct discovery. (See ECF Nos. 51, 511).
INTRODUCTION
Plaintiff is currently incarcerated at Lieber Correctional Institution (“Lieber”), where he is serving a life sentence for murder. Plaintiff identifies as Hindu and alleges he has not been allowed to practice his faith, has been denied items and texts regularly used to practice his faith, and has not been afforded the same religious opportunities as other similarly situated inmates.
STANDARD FOR SUMMARY JUDGMENT
The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. Fed.R.Civ.P. 56(c).
The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through “depositions, answers to interrogatories, and admissions on file, together with ... affidavits, if any.” Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
DISCUSSION
Plaintiff practices a form of Hinduism called Jainism. (ECF No. 11 at 6). He alleges that, since his arrival at Lieber in 2018, he has been denied the ability to practice his faith. Plaintiff asserts Defendant Moultrie, Lieber's Senior Clinical Chaplain, is currently denying him access to the chapel, religious Hindu texts that are in Defendant Moultrie's possession, and a meditation mat. Id. at 9. Plaintiff further alleges Defendant Staggs, a lieutenant at Lieber, threw away his religious items on two separate occasions while transferring him to the Restrictive Housing Unit (“RHU”). Id. at 10-11. He admits he has been reissued “a partial amount of items,” but claims he is in danger of losing his items again because South Carolina Department of Corrections (“SCDC”) policy does not distinguish between Buddhism and Hinduism, responses to his grievances suggest he is being considered Buddhist, and Buddhists are only allowed prayer beads and a picture of Buddha under SCDC policy. Id. at 9. Plaintiff alleges he has suffered emotional, spiritual, and physical harm as a result of Defendants' actions and seeks monetary and punitive damages and injunctive relief. Id. at 6.
Plaintiff also alleges Defendant Moultrie has previously denied or delayed his access to other religious materials, but admits he has since received those items. (ECF No. 11 at 7-9).
Eleventh Amendment Immunity
Plaintiff has sued Defendants in their official and individual capacities. (ECF No. 11 at 2-3). Defendants assert they are immune from suit in their official capacities under the Eleventh Amendment. (ECF No. 47-1 at 5-6).
The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The United States Supreme Court has long held that the Eleventh Amendment also precludes suits against a state by one of its own citizens. Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). This immunity extends to suits against agents and instrumentalities of the state, including state officials acting in their official capacities. Cash v. Granville Cnty. Bd. Of Ed., 242 F.3d 219, 222 (4th Cir. 2001); Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (“[N]either a state nor its officials acting in their official capacities are ‘persons' under § 1983.”). Accordingly, a state cannot, without its consent, be sued in a District Court of the United States by one of its own citizens upon the claim that the case is one that arises under the Constitution or laws of the United States. Edelman, 415 U.S. at 663. The State of South Carolina has not consented to be sued in this case. S.C. Code Ann. § 15-79-20(e). Because the South Carolina Department of Corrections (“SCDC”) is an instrumentality of the State, and the State has not consented to suit, SCDC employees sued in their official capacities are entitled to Eleventh Amendment immunity. Thus, Defendants are immune from suit in their official capacities.
Exhaustion
Defendants further assert Plaintiff has failed to exhaust his administrative remedies as to his claims against Defendant Staggs. (ECF No. 47-1 at 6-8). Plaintiff has not responded to this argument. (See ECF Nos. 51, 51-1).
The Prison Litigation Reform Act (“PLRA”) requires that a prisoner exhaust the available administrative remedies before filing a § 1983 action concerning conditions of his confinement. 42 U.S.C. 1997e(a). In enacting the PLRA, Congress carved out an exception to the general rule that exhaustion of state remedies is not a prerequisite to filing a civil rights suit. The PLRA amended section 1997e so that it now provides, “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” Id. § 1997e(a); See also Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2386 (2006) (finding a failure to exhaust all levels of administrative review is not “proper exhaustion” and will bar actions filed by inmates under any federal law, including § 1983). Accordingly, before Plaintiff may proceed with his claims in this Court, he must first exhaust his administrative remedies available through SCDC's grievance procedure.
In support of their argument that Plaintiff has failed to exhaust his claims against Defendant Staggs, Defendants offer the affidavit of Kimberly Hill, the Inmate Grievance Administrator in SCDC's Office of General Counsel. (ECF No. 47-11). Hill attests that in her current role she has knowledge of the grievance procedures and access to SCDC's inmate grievance records. Id. at 1. According to Hill, SCDC's grievance procedure consists of three steps: (1) an attempt at an informal resolution documented on a Request to Staff Member Form (“RTSM”) or Automated Request to Staff Member (“ARTSM”) submitted through the kiosk; (2) a Step 1 Grievance Form filed within eight days of receipt of a response to the RTSM or ARTSM with the answered RTSM or ARTSM attached; and (3) an appeal of the Step 1 grievance response through a Step 2 Grievance Form. Id. at 1-3. SCDC's response to the Step 2 grievance is considered the agency's final decision on the issue and may be appealed to the South Carolina Administrative Law Court. Id. at 3.
Hill accessed and reviewed Plaintiff's official grievance records for any grievances against Defendant Staggs related to his religious property in April of 2020 and July of 2021. Id. According to SCDC records, Plaintiff filed a Step 1 grievance on April 22, 2020, stating Defendant Staggs confiscated and discarded his religious materials and asking for a religious book he needed in order to practice his faith and that his yoga mat be found or replaced. (ECF No. 47-12 at 2). That grievance was returned to Plaintiff on May 7, 2020, with instructions to re-file with a copy of the answered RTSM or ARTSM, if there was one. Id. Plaintiff did not re-file the grievance or appeal it. (ECF No. 47-11 at 4). That is the only relevant grievance Hill found that specifically involved Defendant Staggs.
Any argument that Plaintiff attempts to make that Defendants violated due process by failing to allow him to have his religious items and/or that his items were discarded, fails. Any allegation by Plaintiff that Defendants deprived him of property fails as it can be remedied under South Carolina's post-deprivation remedies. Because an adequate avenue for relief exits, due process is satisfied. Therefore, any allegation of a due process claim should be dismissed.
On October 12, 2021, Plaintiff filed another Step 1 grievance concerning his religious property against “property control.” (ECF No. 47-13 at 2). In that grievance, Plaintiff states he ordered a new Hindu prayer box and meditation mat after his previous materials were “thrown away by the staff” and the Chaplain and Assistant Warden had confirmed they had arrived at Lieber, but property control had not released them to him or responded to his inquiries. Id. The Warden responded to this grievance and stated Plaintiff's prayer box was not allowed to be kept in his possession and that his property inventory indicated he already had one prayer rug and he was not allowed to have a second. Id. at 3. The Warden also stated the only items Plaintiff was allowed to have in his possession were “prayer beads and a small image or photograph of Buddha for meditation.” Id. Plaintiff initially indicated that he accepted the Warden's decision. Id. However, he subsequently filed additional grievances regarding SCDC's treatment of him as Buddhist, rather than Hindu. See id. at 4-5; (ECF No. 47-14). Those grievances do not mention Defendant Staggs and will be discussed in more detail below.
Based on her review of Plaintiff's grievance file, Hill attested that Plaintiff “did not properly exhaust his administrative remedies that are provided to him through SCDC Grievance System with regards to Lieutenant Staggs allegedly discarding his religious property in April of 2020 and July of 2021.” (ECF No. 47-11 at 4-5). Because those are Plaintiff's only claims against Defendant Staggs and he offers no argument or evidence to counter Hill's affidavit, Plaintiff fails to show proper exhaustion. Therefore, it is recommended that Defendants' motion for summary judgment be granted as to Plaintiff's claims against Defendant Staggs for failure to exhaust.
First Amendment
Plaintiff's remaining claim alleges Defendant Moultrie, in his individual capacity, is denying Plaintiff access to the chapel, religious Hindu texts, and meditation mats. (ECF No. 11 at 8). Plaintiff alleges Defendant's actions have violated his “Religious Freedom and Use/Practice” and constitute discrimination. Id. at 4. Plaintiff's complaint regarding his religious freedom falls under the First Amendment.
The Free Exercise Clause of the First Amendment prohibits the adoption of laws designed to suppress religious beliefs or practices. See Morrison v. Garraghty, 239 F.3d 648, 656 (4th Cir.2001). To state an actionable violation under the Free Exercise Clause, a plaintiff must show both that he has a sincerely held religious belief and that the defendant's actions substantially burdened his religious freedom or expression. See Wilcox v. Brown, 877 F.3d 161, 168 (4th Cir. 2017); Lovelace v. Lee, 472 F.3d 174, 185 (4th Cir. 2006). “... [A] ‘substantial burden' is one that ‘put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs,' ... or one that forces a person to ‘choose between following the precepts of [his] religion and forfeiting [governmental] benefits, on the one hand, and abandoning one of the precepts of [his] religion ... on the other hand.' ” Lovelace, 472 F.3d at 187 (internal citations omitted).
Defendants do not dispute that Plaintiff has a sincerely held religious belief in Hinduism.
The United States Supreme Court has held that prisoners retain their First Amendment rights, including the right to free exercise of religion. See O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). However, “restrictions that are reasonably related to the achievement of a legitimate penological objective are permissible even if the policy substantially burdens a prisoner's religious practice.” Gardner v. Janson, No. 5:19-cv-2616-CMC, 2021 WL 4472800, at *7 (D.S.C. Sept. 30, 2021); Turner v. Safely, 482 U.S. 78, 89 (1987) (“when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests”).
Defendants assert they are entitled to summary judgment because Plaintiff fails to show Defendant Moultrie substantially burdened Plaintiff's free exercise of religion or that any restrictions imposed were not related to the achievement of a legitimate penological objective. (ECF No. 47-1 at 8-12). The undersigned agrees Plaintiff has failed to show a substantial burden of his free exercise of religion.
Plaintiff does not state with any specificity in either the complaint or his grievance forms the importance of a specific text, meditation mat, or access to the chapel for practicing his faith. However, even assuming those things are necessary predicates, Plaintiff has not shown Defendant Moultrie is responsible for any adverse decision denying him access to the Chapel or religious materials. Regarding access to religious texts, Plaintiff filed a grievance stating a box of Hindu books was located in the Chaplain's office for his use and Defendant Moultrie denied his requests to access them. (ECF No. 47-14 at 2). The Warden responded, informing Plaintiff SCDC policy permitted him to have three books at a time from the Chapel and that records indicated he had been given three books. Id. at 3-4. The response indicated Plaintiff would be permitted to take other books back to his cell when he returned the three he had. Id. The Warden's response comports with Defendant Moultrie's sworn affidavit. (ECF No. 47-3 at 2 (“Inmate Chisolm is allowed to have three books from the Chapel in his cell at a time. If Inmate Chisolm wishes to have different books in his cell, he just has to return the three in his possession so he can “check-out” additional books.”). Plaintiff provides no argument or evidence suggesting his faith requires the use of more than three books at a time and thus fails to show how this policy substantially burdens his free exercise of religion.
If Plaintiff attempts to assert a claim under § 1983 for an alleged failure by Defendants to follow SCDC policies or rules, the claim fails. “The failure of prison officials to follow their own policies or procedures, standing alone, does not amount to a constitutional violation.” Johnson v. S.C. Dep't of Corrections, No. 06-2062, 2007 WL 904826, at *12 (D.S.C. Mar.21, 2007) (citing United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1978)); see also Riccio v. Cnty. of Fairfax, Va., 907 F.2d 1459, 1469 (4th Cir.1990) (if state law grants more procedural rights that the Constitution requires, a state's failure to abide by that law is not a federal due process issue); Keeler v. Pea, 782 F.Supp. 42, 44 (D.S.C.1992) (violations of prison policies which fail to reach the level of a constitutional violation are not actionable under § 1983).
Regarding access to the Chapel, Defendant Moultrie attests he has no control of when Plaintiff can or cannot access the Chapel. (ECF No. 47-3 at 2). Rather, an inmate's access to the Chapel depends on his housing and security classification. Id. For example, inmates are not allowed to come to the Chapel while housed in the RHU. Id. Further, the only evidentiary support for Plaintiff's conclusory allegation that Defendant Moultrie has denied him access to the Chapel is his bare assertion tacked on to a Step 2 Grievance Form regarding his access to Hindu books. (See ECF No. 4714 at 4). These allegations alone are not enough to survive summary judgment. See Nemet Chevrolet Ltd. V. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (in evaluating a complaint, the court does not consider “bare assertions devoid of further factual enhancement”).
Finally, concerning Plaintiff's meditation mat, Defendant Moultrie attests that Plaintiff has been allowed to have a prayer rug in his possession, despite being considered Buddhist and not Muslim. (ECF No. 47-3 at 2). Regardless of SCDC's apparent consideration of Hindus as Buddhists (see id. at 1 (“According to SCDC policy, inmates practicing Hindu are treated as inmates who practice Buddhism due to the similarities in the religion.”)), Defendant Moultrie's indication that Plaintiff has possession of a meditation or prayer mat is supported by the Warden's response to Plaintiff's grievances in which he states Plaintiff received a black and beige prayer rug on March 31, 2021, and was not authorized to have more than one mat. (ECF No. 4713 at 3). As mentioned above, Plaintiff checked the box indicating he accepted the Warden's decision on that matter. Id. Further, Defendant Moultrie denies any control over what items inmates are permitted to keep in their possession. (ECF No. 47-3 at 2). However, he does keep some materials in the Chapel for inmate use, like prayer boxes, that are not permitted in the cells. Id. Plaintiff provides no evidence showing Defendant Moultrie bears any responsibility for denying his requests for a mat, that he does not in fact already have a mat, or that his faith requires the use of more than one mat. Accordingly, Plaintiff fails to show Defendant Moultrie has in any way substantially burdened his free exercise of religion and, it is recommended that Defendants' motion for summary judgment be granted as to Plaintiff's First Amendment claims.
Equal Protection
Plaintiff also alleges he has not been afforded the same treatment as similarly situated inmates and thus presents a claim under the Equal Protection Clause of the Fourteenth Amendment. (ECF No. 11 at 6).
An equal protection claim arises when, without adequate justification, similarly-situated persons are treated differently by a governmental entity. U.S. Const. amend XIV. The Equal Protection Clause of the Fourteenth Amendment provides that a state may not “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The Equal Protection Clause thus directs that “all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1982). To establish an equal protection violation, a plaintiff “must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination”; once this showing is made, “the court proceeds to determine whether the disparity in treatment can be justified under the requisite level of scrutiny.” Veney v. Wyche, 293 F.3d 726, 730-31 (4th Cir. 2002) (quoting Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001)). To succeed on an equal protection claim, a plaintiff must set forth “specific, non-conclusory factual allegations that establish improper motive.” Williams v. Hansen, 326 F.3d 569, 584 (4th Cir. 2003). Individuals are similarly situated for Equal Protection purposes if they are “in all relevant respects alike.” Fauconier v. Clarke, 966 F.3d 265, 277 (4th Cir. 2020) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992)). For a plaintiff to demonstrate that he is “similarly situated,” his evidence “must show an extremely high degree of similarity between [himself] and the persons to whom [he] compare[s]” himself. Willis v. Town of Marshall, N. Carolina, 275 Fed.Appx. 227, 233 (4th Cir. 2008) (citing Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir.2006)).
Plaintiff's complaint alleges Defendants denied his requests or destroyed his property because he is not Christian. (See ECF No. 11 at 7 (“Chaplain Moultrie has on at least 2 occasions made it very clear, verbally, that he is a Christian Pastor, and that Chisolm/Survi would not get the access or assistance needed to practice any faith that is not Christianity.”), 10 (alleging Defendant Staggs told him “This is a Christian Institution and you need to be asking for a Bible”), 11 (referring to “the Christian community of S.C.D.C.” and “the black Christians”)). However, Plaintiff does not allege how he has been treated differently from similarly situated inmates. There is no discussion at all of other inmates of the same or different faiths and Defendants' treatment of them concerning religious materials and access to the Chapel. Therefore, Plaintiff has not shown conscious and intentional discrimination or that he was treated differently from others similarly situated. Thus, Plaintiff fails to state an actionable Equal Protection claim and, and it is recommended that summary judgmnet be granted with regard to the equal protection claim.
CONCLUSION
Based on the above reasoning, it is recommended that Defendants' motion for summary judgment (ECF No. 47) be granted.