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McCroskey v. Kelley

United States District Court, E.D. Arkansas, Pine Bluff Division

May 19, 2016

JERRY H. McCROSKEY ADC #72796, Plaintiff,
v.
WENDY KELLEY et al, Defendants.

          PROPOSED FINDINGS AND RECOMMENDATION

          PATRICIA S. HARRIS, Magistrate Judge.

         INSTRUCTIONS

         The following Proposed Findings and Recommendation have been sent to United States District Judge Billy Roy Wilson. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

         DISPOSITION

         Relevant Facts/Procedural History

         Plaintiff Jerry H. McCroskey, an Arkansas Department of Correction ("ADC") inmate, filed a complaint on July 13, 2015, alleging prison officials were making improper determinations concerning the sincerity of inmates' religious beliefs in an effort to deny them their right to wear a beard as their religion requires. Defendants are Wendy Kelley, James Gibson, Marvin Evans, Chuck Gladden, Dale Reed, John Wheeler, Jim DePriest, and Joshua Mayfield.[1]

         McCroskey asserts that Gladden, a chaplain, and grooming committee members Reed, Wheeler, DePriest, and Mayfield, used ADC policy to deny him the right to grow a beard and wear his hair in accordance with his religious beliefs in violation of his rights under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-1(a)(1)-(2), despite the United States Supreme Court's decision in Holt v. Hobbs, 135 S.Ct. 853 (2015). According to McCroskey, the grooming committee misuses ADC policy to question the sincerity of an inmate's religious beliefs, and Gladden's decision on whether to allow an inmate a religious grooming accommodation is based on "gut feelings." (Doc. No. 2, at1). McCroskey asserts Gibson and Evans denied him relief in the grievance process, and that Wendy Kelley is causing him "mental anguish." (Doc. No. 15, at 5).

         On December 30, 2015, defendants filed a motion for summary judgment, a brief in support, and a statement of facts, asserting McCroskey failed to exhaust his available administrative remedies with respect to his claims against Kelley, Gibson, Evans, or Gladden (Doc. Nos. 34-36). McCroskey filed a response in opposition on January 14, 2016 (Doc. No. 38). Defendants filed another motion for summary judgment, brief in support, and a statement of facts, on February 3, 2016, asserting McCroskey's claims are moot, and they are entitled to immunity (Doc. Nos. 45-47). McCroskey filed a response on February 17, 2016 (Doc. No. 49). Defendants filed a reply on February 24, 2016 (Doc. No. 50). McCroskey filed a reply on March 9, 2016, and a second response on March 14, 2016 (Doc. Nos. 51 & 52).

         Standard of review

         Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper "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 v. Catrett, 477 U.S. 317, 321 (1986). When ruling on a motion for summary judgment, the court must view the evidence in a light most favorable to the nonmoving party. Naucke v. City of Park Hills, 284 F.3d 923, 927 (8th Cir. 2002). The nonmoving party may not rely on allegations or denials, but must demonstrate the existence of specific facts that create a genuine issue for trial. Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007). The nonmoving party's allegations must be supported by sufficient probative evidence that would permit a finding in his favor on more than mere speculation, conjecture, or fantasy. Id. (citations omitted). A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party; a fact is material if its resolution affects the outcome of the case. Othman v. City of Country Club Hills, 671 F.3d 672, 675 (8th Cir. 2012). Disputes that are not genuine or that are about facts that are not material will not preclude summary judgment. Sitzes v. City of West Memphis, Ark., 606 F.3d 461, 465 (8th Cir. 2010).

         Analysis

         Exhaustion

         The Prison Litigation Reform Act (PLRA) requires an inmate to exhaust prison grievance procedures before filing suit in federal court. See 42 U.S.C. §1997e(a); Jones v. Bock, 549 U.S. 199, 202 (2007); Jones v. Norris, 310 F.3d 610, 612 (8th Cir. 2002). Exhaustion under the PLRA is mandatory. Jones v. Bock, 549 U.S. at 211. The PLRA's exhaustion requirement applies to all inmate suits about prison life whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).

         The PLRA does not prescribe the manner in which exhaustion occurs. SeeJones v. Bock, 549 U.S. at 922-923. It merely requires compliance with prison grievance procedures to properly exhaust. See id. at 922-23. Thus, the question as to whether an inmate has properly exhausted administrative remedies will depend on ...


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