United States District Court, E.D. Arkansas, Pine Bluff Division
JERRY H. McCROSKEY ADC #72796, Plaintiff,
WENDY KELLEY et al, Defendants.
PROPOSED FINDINGS AND RECOMMENDATION
PATRICIA S. HARRIS, Magistrate Judge.
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
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.
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. Â§
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).
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).
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).
Prison Litigation Reform Act (PLRA) requires an inmate to
exhaust prison grievance procedures before filing suit in
federal court. See 42 U.S.C. Â§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).
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 ...