The opinion of the court was delivered by: JERRY CAVANEAU, Magistrate Judge
MEMORANDUM OPINION AND ORDER
On April 19, 2005, Defendants filed a motion to dismiss (or, in
the alternative, a motion for summary judgment) and brief in
support (docket entries #6, #7) seeking to dismiss Plaintiff's
complaint on the grounds that he had failed to exhaust his
administrative remedies pursuant to 42 U.S.C. § 1997e(a) as well
as the doctrine of sovereign immunity. Defendants alternatively
sought dismissal on the grounds that Plaintiff had failed to
state a claim upon which relief could be granted. By order
entered April 22, 2005 (docket entry #8), Plaintiff was notified
of his opportunity to file a responsive pleading opposing
Defendants' motion to dismiss. In addition, Plaintiff was advised
that since Defendants had attached evidence to their motion, the
Court could construe it as a motion for summary judgment.
Plaintiff was therefore advised that his response to Defendants'
motion could include opposing or counteraffidavits, executed by
him or other persons, which had either been sworn to under oath,
or declared to under penalty of perjury in accordance with
28 U.S.C. § 1746. Pursuant to Local Rule 56.1 of the Rules of the
United States District Court for the Eastern District of
Arkansas, Plaintiff was also advised to file a separate, short
and concise statement setting forth the facts which he thought
needed to be decided at a trial. Plaintiff has filed a timely
response (docket entry #9). I. Background
Plaintiff is a pro se inmate who is currently confined to the
East Arkansas Regional Unit of the Arkansas Department of
Correction ("ADC"). According to his complaint (docket entry #2),
his religious rights are violated when Defendants serve him tuna.
Plaintiff contends that a religiously-mandated Kosher diet
requires him to eat only fish that have scales. Plaintiff does
not believe that tuna have scales and alleges that Defendants
have failed to provide him with any evidence to the contrary.
Plaintiff further contends that since tuna is served every other
day, he has not received three meals a day since November 25,
2004 (the Court assumes that Plaintiff does not eat the meals
when tuna is served). Plaintiff seeks to abolish tuna from the
ADC's Kosher diet and compensation for the meals that he is
forced to miss.
Summary judgment*fn1 is appropriate "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
Court must view the evidence in the light most favorable to the
nonmoving party, giving him the benefit of all reasonable factual
inferences. Reed v. ULS Corp., 178 F.3d 988, 990 (8th Cir. 1999). A moving party is
nevertheless entitled to summary judgment if the nonmoving party
has failed to make a sufficient showing on an essential element
of his case with respect to which he will have the burden of
proof at trial. Celotex, 477 U.S. at 322-23. To avoid summary
judgment, the nonmovant must go beyond the pleadings and come
forward with specific facts, "by [his] own affidavit" or
otherwise, showing that a genuine, material issue for trial
exists. Id. at 324; Fed.R.Civ.P. 56(e). A nonmovant has an
obligation to present affirmative evidence to support his claims.
Settle v. Ross, 992 F.2d 162, 163-64 (8th Cir. 1993). A
litigant's verified complaint is generally considered an
affidavit for purposes of summary judgment. Burgess v. Moore,
39 F.3d 216, 218 (8th Cir. 1994). Moreover, pro se complaints
must be liberally construed and held "to less stringent standards
than formal pleadings drafted by lawyers." Haines v. Kerner,
404 U.S. 519, 520-21 (1972).
A. Administrative Exhaustion
Failure to exhaust is an affirmative defense. Guerra v.
Kempker, 134 Fed. Appx. 112 (8th Cir. 2005) (unpub. per curiam)
(citing Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir. 2005)
(per curiam)). An inmate must exhaust all available
administrative remedies prior to initiating a § 1983 prison
conditions suit. 42 U.S.C. § 1997e(a) ("[n]o action shall be
brought with respect to prison conditions under section 1983 . . .
until such administrative remedies as are available are
exhausted"); Johnson v. Jones, 340 F.3d 624, 627 (8th Cir.
2003) ("Under the plain language of § 1997e(a), an inmate must
exhaust administrative remedies before filing suit in federal
court. . . . If exhaustion was not completed at the time of
filing, dismissal is mandatory"); Graves v. Norris,
218 F.3d 884, 885 (8th Cir. 2000) (holding that "all available prison grievance
remedies must be exhausted as to all of the [plaintiff's]
claims"); Chelette v. Harris, 229 F.3d 684, 688 (8th Cir.
2000), cert. denied, 531 U.S. 1156 (2001) (stating that "if
administrative remedies are available, the prisoner must exhaust
them," regardless of his subjective beliefs about their
availability). At the time the incident in question occurred,
exhaustion of remedies required the inmate to first attempt
informal resolution and then to timely file and appeal a
particular grievance through several administrative levels.
Plaintiff was required to appeal his grievance(s) to the highest
administrative level, the Deputy/Assistant Director of the ADC.
See ADC Adm. Dir. 04-01 § IV(G)(5) (February 1, 2004).
Defendants first assert that Plaintiff filed an informal
resolution on November 24, 2004 (docket entries #6, Exh. "A" &
#7). The following day, he filed a formal grievance regarding the
same matter (docket entries #6, Exh. "B" & #7). Plaintiff did not
wait for a response to his informal resolution before proceeding
to the formal grievance process; therefore, Defendants contend
that he has failed to exhaust his administrative remedies. Even
if Plaintiff failed to fully comply with informal resolution
procedures before filing a formal grievance, the fact remains,
ADC officials went ahead and addressed Plaintiff's grievance on
the merits and without mention of any procedural defect.
Moreover, it was fully exhausted.*fn2 Defendants next
contend that Plaintiff's complaint raises multiple claims that
have not each been exhausted. Specifically, Defendants read
Plaintiff's complaint as alleging two additional and separate
claims: (1) that Defendants lied to him; and (2) that he has not
received three full meals a day since November 25, 2004. Such a
reading of Plaintiff's complaint defies logic. Clearly, Plaintiff's
contention that Defendants are lying to him about whether tuna
does or does not have scales falls squarely within the claim that
forms the basis of his lawsuit. Furthermore, a careful reading of
Plaintiff's complaint indicates that he has not received three
meals a day since November 25, 2004, because tuna is served
every other day. It can easily be assumed that Plaintiff is
claiming that he does not eat the meals when tuna is served. For
these reasons, Defendants' motion is denied on exhaustion
Defendants next assert that alternate grounds mandate the
dismissal of Plaintiff's case. They are correct. Public officials
may be sued under § 1983 in either their official or individual
capacity, or both. Johnson v. Outboard Marine Corp.,
172 F.3d 531, 535 (8th Cir. 1999). To sue a public official in his
individual capacity, a plaintiff must expressly and unambiguously
state so in the pleadings, otherwise it will be assumed that the
defendant is being sued only in an official capacity. Id.
Plaintiff seeks an unspecified amount of compensatory damages
from Defendants in an official capacity.*fn3 Defendants have
raised and placed Plaintiff on notice of this issue in their
summary judgment motion. Despite this notification, Plaintiff has
nevertheless failed to change his position (see docket entry
#9);*fn4 thus, his claim for monetary damages against
Defendants is barred.
The Eleventh Amendment bars a citizen from bringing suit in
federal court against a state, a state agency, or a state
official sued in his official capacity for monetary damages which must be paid from public funds in the state treasury. Will
v. Michigan Dep't of State Police, 491 U.S. 58, 66 (1989);
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100
(1984); Barnes v. State of Missouri, 960 F.2d 63, 64 (8th Cir.
1992) (per curiam); Nix v. Norman, 879 F.2d 429, 431-32 (8th
Cir. 1989). However, a state official may nevertheless be sued in
an individual capacity for action taken in an official capacity
and such a claim is not barred by the Eleventh Amendment. Hafer
v. Melo, 502 U.S. 21, 25 (1991). Only two exceptions exist to
Eleventh Amendment immunity: (1) "where Congress has statutorily
abrogated such immunity by `clear and unmistakable language,'" or
(2) where a state has waived its immunity to suit in federal
court, but "only where stated by the most express language or by
such overwhelming implications from the text as will leave no
room for any other reasonable construction." Barnes,
960 F.2d at 64-65 (citing Welch v. Texas Dep't of Highways & Pub.
Transp., 483 U.S. 468, 473-74 (1987)). Neither exception is
applicable to Plaintiff's case. See Will, 491 U.S. at 66.
Even if Plaintiff had sued Defendants in an individual
capacity, his claim still fails on the merits. Defendants assert
that Plaintiff has failed to state a claim upon which relief can
be granted. Plaintiff claims that Defendants, both ADC Chaplains,
misinformed him as to the outer covering of tuna. Warden Harmon
consulted Defendants and the issue as to whether or not tuna have
scales was addressed. Defendants contend that tuna do have
scales; thus, it is properly included in the Kosher diet (docket
entries #6, Exh. "D" & #7). According to Defendants' evidence,
the Torah requires that Kosher fish have both scales and fins.
The Talmud further teaches that all fish that have scales also
have fins. The first step in determining a Kosher fish is
verifying that it has a Kosher scale. Although tuna have very few scales, they are nevertheless considered a Kosher
fish (docket entry #6, Exh. "D").*fn5 However, Defendants
fail to point out in their own evidence that the Kosher status of
canned fish, such as tuna, has received much debate especially
where the supervision of the cannery is based upon spot checks
rather than each fish being checked by a Mashgiach.*fn6 Many
authorities are reluctant to accept the Kosher status of such
fish (docket entry #6, Exh. "D"). Although Defendants overlook
this issue, Plaintiff has provided a package wrapper of the tuna
fish served at the ADC (see docket entry #9, attachments).
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