Opinion
Case No. 99-3038-JWL.
February 16, 2001.
MEMORANDUM AND ORDER
Plaintiff is a prisoner detained at the El Dorado Correctional Facility in El Dorado, Kansas (EDCF). He brings this pro se civil rights action against Charles Simmons, the Kansas Secretary of Corrections, and Michael Nelson, the Warden of EDCF, alleging that a Kansas Department of Corrections (DOC) regulation impermissibly violates his right to practice his religion through tithing. Defendants have filed a Motion for Summary Judgment seeking dismissal of plaintiff's complaint on the ground that plaintiff has failed to exhaust administrative remedies (Doc. 23). For the reasons stated below, the court agrees that plaintiff has failed to exhaust administrative remedies and the court dismisses plaintiff's complaint without prejudice.
Plaintiff asserts that defendants' motion was filed one day after the dispositive motion deadline set in the Scheduling Order issued by Judge Van Bebber (Doc. 22). To the extent that defendants' motion was untimely, the court finds that plaintiff was not prejudiced by the one-day delay and the court will consider the motion.
• Background
The material facts in this case are relatively simple. Plaintiff is a Kansas state prisoner incarcerated at EDCF, and, as such, is subject to the rules and regulations promulgated by the Kansas DOC. Kansas DOC Internal Management Policy and Procedure (IMPP) Regulation 11-101 governs the amount of funds that prisoners may send out of Kansas prisons. Section VI states that, subject to limited exceptions not applicable here, "there shall be a $30.00 limit on outgoing funds" per month. Plaintiff alleges that he is a Christian and that his religious beliefs require that he tithe 10% of his earnings. Plaintiff asserts that the $30.00 limit of Regulation 11-101 prevents him from practicing his religious belief in tithing. Plaintiff seeks injunctive relief enabling him to "send out $140.00 per month to Kenneth Copeland Ministries for my tithes."
Plaintiff's pleadings do not discuss the amount of money that plaintiff earns per month. Unless plaintiff earns more than $300.00 per month, it would appear that the $30.00 outgoing fund limit would not interfere with plaintiff's religious tithing belief.
It is unclear whether plaintiff is attempting to proceed under the First Amendment or the Religious Freedom Restoration Act (RFRA). As noted in Judge Van Bebber's February 17, 1999 Order, the United States Supreme Court has held the RFRA unconstitutional as applied to state governments. See Doc. 6 at 2 ( citing City of Boerne v. Flores, 521 U.S. 507 (1997)). Following Judge Van Bebber's Order, plaintiff filed an amended complaint (Doc. 7) in which he cited both the RFRA and the First Amendment in support of his claim. Shortly thereafter, however, plaintiff filed a second amended complaint (Doc.8) in which he solely cited the RFRA in support. While the court is prevented from examining the merits of this case because plaintiff has failed to exhaust his administrative remedies, see supra page 4, the court simply reiterates Judge Van Bebber's observation that the RFRA is inapplicable to state governments.
• Discussion
The Prison Litigation Reform Act, signed into law on April 26, 1996, amended 42 U.S.C. § 1997e to provide that "No action shall be brought with respect to prison conditions under . . . any . . . Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." The Tenth Circuit has ruled that "under the current version of the statute, exhaustion of administrative remedies is mandatory," and suits filed by a prisoner before he or she has exhausted administrative remedies must be dismissed. See Miller v. Menghini, 213 F.3d 1244, 1246 (10th Cir. 2000); Garrett v. Hawk, 127 F.3d 1263, 1265 (10th Cir. 1997).
Pursuant to section 1997e and the Tenth Circuit's mandate, the court finds that it must dismiss plaintiff's suit. While attachments to plaintiff's second amended complaint demonstrate that plaintiff has pursued some avenues of administrative relief, there is no indication that plaintiff has exhausted the administrative remedies available to him. Specifically, plaintiff has not demonstrated that he followed the procedure set forth in IMPP Regulation 10-110 for obtaining a "religious accommodation" exception to the $30.00 outgoing fund limit of IMPP Regulation 10-101. Section IV of Regulation 10-110 provides:
An inmate may request that a facility accommodate a particular practice of his/her religion that involves an exception to . . . existing rules and regulations. . . . An inmate who desires to request an accommodation of a religious practice shall comply with the following procedures:
• The inmate shall complete the Request for Accommodation of Religious Practices form. . . .
• The completed request form shall be submitted to the chaplain/warden's designee, who will conduct any necessary inquiry or investigation. . . .
The Prison Litigation Reform Act mandates that prison officials be allowed the opportunity to address plaintiff's grievances before the judicial branch becomes involved in prison administration, an area "peculiarly within the province of the legislative and executive branches of government." Turner v. Safely, 482 U.S. 78, 85 (1987). By failing to submit the Request for Accommodation of Religious Practices form to the appropriate official within EDCF, plaintiff has failed to allow the Kansas DOC to voluntarily accommodate his tithing beliefs without the necessity of a lawsuit. Therefore, the court dismisses plaintiff's complaint without prejudice. If plaintiff adheres to IMPP Regulation 11-110 but is still denied relief, plaintiff may refile this action. IT IS ACCORDINGLY ORDERED that defendants' motion for summary judgment (Doc. 23) is granted to the extent that plaintiff's complaint is dismissed without prejudice based on plaintiff's failure to exhaust administrative remedies.
Because the court has found that plaintiff has not exhausted his administrative remedies, the court does not go on to examine the additional, merit-based arguments in defendants' motion for summary judgment. See Perez v. Wisconsin Dep't. of Corrs., 182 F.3d 532, 534 (7th Cir. 1999) (holding that the exhaustion requirement is mandatory and must be addressed by the court before the court may examine the merits of the case); Clark v. Beebe, 198 F.3d 244, 1999 WL 993979 (6th Cir. Oct. 21, 1999) (same).
IT IS SO ORDERED.