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Muhammad v. Wheeler

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

March 30, 2018

ABDULHAKIM MUHAMMAD ADC #150550 PLAINTIFF
v.
MARK WHEELER, et al. DEFENDANTS

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          Kristine G. Baker United States District Judge.

         This matter came before the Court for trial. Plaintiff Abdulhakim Muhammad was represented by counsel, and defendants Joshua Mayfield, the Religious Service Administrator for the Arkansas Department of Correction (“ADC”);[1] Jeremy Andrews, Warden of the ADC's East Arkansas Regional Unit; and Wendy Kelley, Director of the ADC, were represented by counsel. Pursuant to Federal Rule of Civil Procedure 52(a), after conclusion of the trial, the Court makes the following specific findings and conclusions:

         1. Mr. Muhammad, a Sunni Muslim and inmate with the ADC, brings this action, claiming that the meal plans offered by the ADC violate the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C.A. §§ 2000cc, et seq., as well as the First and Fourteenth Amendments to the United States Constitution.

         2. Mr. Muhammad is a lifetime inmate in the custody of the ADC. He is serving life without parole, 11 life sentences, and an additional 180 months (Dkt. No. 117, ¶16).

         3. He currently is incarcerated in administrative segregation at the ADC's East Arkansas Regional Unit (Dkt. No. 113, at 1).

         4. Mr. Muhammad is seeking injunctive relief from defendants Mr. Mayfield, Mr. Andrews, and Ms. Kelley.

         5. Specifically, Mr. Muhammad seeks to have the ADC provide to him halal meals, including meat once per day, and to have the ADC certify that the food it serves complies with a halal diet.

         6. At all times pertinent, Mr. Mayfield, Mr. Andrews, and Ms. Kelley were acting under color of state law.

         7. This Court has jurisdiction pursuant to 28 U.S.C. §1343.

         Exhaustion Of Administrative Remedies

         8. The Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997(e), et seq., requires, as a pre-condition to filing suit, that a prison inmate first exhaust all available administrative remedies in accordance with the applicable procedural rules, including deadlines. Hammettv.Cofield, 681 F.3d 945, 946 (8th Cir. 2012); see42 U.S.C. § 1997e(a). “[I]t is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Burns v. Eaton, 752 F.3d 1136, 1141 (8th Cir. 2014) (quoting Jones v. Bock, 549 U.S. 199, 218 (2007)).

         9. “Nonexhaustion is an affirmative defense, and defendants have the burden of raising and proving the absence of exhaustion.” Porter v. Sturm, 781 F.3d 448, 451 (8th Cir. 2015) (citing Jones, 549 U.S. at 211-12).

         10. Inmates are excused from exhausting remedies “when officials have prevented prisoners from utilizing the procedures, or when officials themselves have failed to comply with the grievance procedures.” Porter, 781 F.3d at 452.

         11. The requirement that inmates exhaust administrative remedies “hinges on the ‘availability' of administrative remedies: an inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones.” Ross v. Blake, 136 S.Ct. 1850, 1858 (2016). “[A]ccordingly, an inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use' to ‘obtain some relief for the action complained of.'” Id., at 1859 (citation omitted). The Supreme Court in Ross “made clear, [that] an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end - with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Id., at 1859 (citation omitted).

         12. The ADC maintains an inmate grievance policy, described in Administrative Directive (“AD”) 12-16.[2] This grievance policy applies to all inmates and provides an administrative mechanism for resolution of complaints, problems, and other issues.

         13. The ADC's grievance policy requires that an inmate submit an informal grievance in the form of a written complaint that is specific as to the substance of the issue and describes how the policy or incident affected the inmate. AD 12-16, at IV(E). Inmates have 15 days after the occurrence of an event in which to file an informal resolution. Id. If a problem solver fails to meet with the inmate regarding the informal resolution, step two, the formal grievance must be filed no later than six working days from the submission of the informal resolution. Id. Once the formal grievance is filed, an inmate will receive a written response from the Warden/Center Supervisor Decision within 20 days. Id., at IV(F). An inmate may appeal the unit level grievance decision within five working days to the appropriate Chief Deputy. Id., at IV(G).

         14. Inmates must exhaust their administrative remedies as to all defendants at all levels of the grievance procedure before filing suit. Id., at IV(N).

         15. Mr. Muhammad filed this lawsuit on April 22, 2015 (Dkt. No. 2), and prior to filing suit, Mr. Muhammad filed four grievances concerning his religious diet needs.

a. On or about January 25, 2013, Mr. Muhammad filed grievance number VSM13-00336. Pl.'s Trial Ex. 1. The Warden and Ms. Yolanda Clark responded. This grievance was fully exhausted. Pl.'s Trial Ex. 1.
b. On or about August 23, 2013, Mr. Muhammad filed grievance number VSM13-03225. Pl.'s Trial Ex. 2. This grievance was rejected as untimely. Mr. Muhammad filed his informal resolution on August 12, 2013, and failed to file the Step Two formal grievance within six days. Defendants failed to come forward with what would be a complete copy of this administrative grievance. Testimony from Barbara Williams on cross examination and redirect examination indicated the document likely would be housed within the ADC at the unit level and that Mr. Muhammad likely would have had a copy. The second page, which is in evidence, states on its face that the ADC considered and rejected the grievance. Regardless, based on the requirements of the ADC, this grievance was not fully exhausted. Pl.'s Trial Ex. 2.
c. The third grievance filed by Mr. Muhammad was grievance VSM13-03485. Pl.'s Trial Ex. 2. The Unit Level Grievance Form for this grievance was not produced at trial. From the Warden/Center Supervisor's Decision, the Court determines that Mr. Muhammad's complaint in this grievance was substantially similar to the grievance filed on August 23, 2013. According to the trial testimony on redirect examination of Ms. Williams, Mr. Muhammad failed to exhaust fully this grievance.
d. On or about February 6, 2014, Mr. Muhammad submitted a grievance, grievance number VSM14-491. Pl.'s Trial Ex. 4. In his grievance, Mr. Muhammad cited the cases of Love and Fegans, cases he had read about in the prison law library, and cited the Federal Bureau of Prisons common fare program. Based on Mr. Muhammad testimony on direct examination, he understood, based on his reading, that these sources called for kosher meals, as the requirements for kosher meals are stricter than for halal meals, and included some form of meat. In his grievance, Mr. Muhammad specifically cited Program Statement 4700.4(2) and 4700.4(3), which are references to the Federal Bureau of Prisons Program Statements regarding the Food Service Manual. Pl.'s Trial Ex. 4. Mr. Muhammad's grievance contended, in part, that by “being forced to eat non-Halaal foods we have been forced to sin against Allah's laws.” This grievance was fully exhausted, with the ADC representative signing it April 14, 2014.

         16. The Court takes judicial notice of the case of Kelvin Ray Love v. Marvin Evans, et al., Case No. 2:00-cv-0091 JMM, and specifically takes judicial notice of docket entries 118 and 183 in that case. In Love, the Court ordered the ADC to provide to Mr. Love a kosher diet consistent with his religious beliefs, and the ADC proposed, among other alternatives, to provide to Mr. Love prepackaged kosher meals from My Own Meals, Inc.

         17. The Court also takes judicial notice of the case of Michael J. Fegans v. Larry Norris, et al., Case No. 4:03-cv-00172 JMM, 2006 WL 6936834 (E.D. Ark. Aug. 25, 2006), aff'd 537 F.3d 897 (8th Cir. 2008). In Fegans, the Court determined in part that the ADC failed to accommodate Mr. Fegans' request for a kosher diet, that this failure placed a substantial burden on Mr. Fegans's religious beliefs, and that defendant Larry Norris of the ADC knowingly violated established law requiring kosher diets after the Court's decision in Love.

         18. Before the common fare option was developed, according to the testimony of Kay Skillen on cross examination, the ADC utilized My Own Meals, Inc., which included kosher meat and which is referenced in the Love case. Love, Dkt. No. 183, at 6. By comparison, according to Ms. Skillen, the common fare option does not include kosher or halal meat.

         19. In addition to the grievance procedure in AD 12-16, the ADC has also promulgated AD 13-83, religious diets, which states that “any inmate requesting special religious diet will complete the Special Religious Diet form at which time all dietary requirements must be set forth by the inmate and are not subject to additions or deletions for a period of twelve (12) months.” Pl.'s Trial Ex. 8, ¶ II.A. “A request based upon an inmate's sincerely held religious belief will be accommodated . . . . Requests which are not matter of a religious belief … will not be honored.” Id., ¶ II.C.

         20. AD 13-83 is a specific procedure by which inmates can request a special religious diet. AD 13-83 was promulgated after the effective date of AD 12-16, the grievance process.

         21. According to the testimony of Ms. Kelley on recross examination, requests made pursuant to AD 13-83 are received by the chaplain. AD 13-83 specifies no appeal process. It does not state that an inmate must initiate the formal grievance process in order to challenge a decision not to accommodate the inmate's purported sincerely held religious belief. Ms. Kelley on cross and redirect examination and Mr. Mayfield on direct examination testified generally that, if an inmate is not satisfied with the response he receives from the chaplain, the inmate can file a grievance. There is no record evidence to support how this information, the requirement to file a grievance if unsatisfied with a response from the chaplain, was communicated to inmates or whether this information appears in writing in any ADC document.

         22. Mr. Muhammad's trial exhibits contain three memoranda from his unit's chaplain regarding Mr. Muhammad's requests for accommodation. Pl.'s Trial Exs. 3, 5, 6. The first response is dated November 21, 2013. Pl.'s Trial Ex. 3. The second response is dated August 12, 2014. Pl.'s Trial Ex. 5. The third response is dated April 1, 2015. Pl.'s Trial Ex. 6.

         23. Mr. Muhammad testified on direct and cross examination that, in his letters to his unit chaplain, he asked for halal meat, and in his second letter, he tried to compromise by also saying he would be satisfied with the vegetarian diet with the fish added.

         24. No one produced Mr. Muhammad's letters to his unit chaplain, and the unit chaplain or chaplains who received his letters did not testify.

         25. The August 12, 2014, response specifically denies Mr. Muhammad's request to receive a vegetarian meal in addition to fish. Pl.'s Trial Ex. 5.

         26. Mr. Muhammad testified on cross examination that, after he received the first response dated November 21, 2013, stating that the ADC did not provide kosher or halal meals to inmates, he wrote a grievance, which is grievance number VSM14-491 and which was fully exhausted.

         27. During the time Mr. Muhammad filed four grievances and submitted three requests for accommodation pursuant to AD 13-83, no one from the ADC ever spoke to Mr. Muhammad about his grievances or his requests for accommodation and a halal diet. The ADC grievance procedure states that “after receipt of the informal complaint, the problem-solver will. . . meet with the inmate within three working days to resolve the issue.” Pl.'s Trial Ex. 7, at 24. Dkt. No. 52, Ex. 4, at 24.

         28. Based on testimony presented to the Court by Mr. Mayfield on cross examination and Ms. Skillen on direct and cross examination, the Chaplaincy Service and the Food Service Department at the ADC were not able or authorized to grant pre-suit the relief Mr. Muhammad seeks. See also Pl, 's Trial Ex. 6.

         29. Based on testimony presented to the Court by Ms. Skillen on redirect examination, the ADC management team would likely have to review whether to provide new or different foods.

         30. Based on the evidence before the Court, at the pertinent time, the ADC responded to requests for religious dietary accommodations only by offering the vegetarian or common fare options. See Pl.'s Trial Ex. 6.

         31. Mr. Muhammad contends that the vegetarian option includes butter and animal products and that the ...


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