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Sims v. Jones

United States District Court, N.D. Florida, Tallahassee Division

March 1, 2018

DURRELL SIMS, Plaintiff,
v.
JULIE L. JONES, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Defendant.

          SECOND REPORT AND RECOMMENDATION [1]

          CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE

         Plaintiff, a prisoner proceeding pro se, filed a civil rights complaint asserting claims under the First Amendment and under the Religious Land Use and Institutionalized Persons Act (RLUIPA). ECF No. 1. After the close of discovery, Plaintiff filed a motion for summary judgment, ECF No. 42, as did the Defendant, ECF No. 47. The parties were advised of their obligation to respond to the opposing party's motion. ECF No. 48. Both the Plaintiff and Defendant filed responses. ECF Nos. 49, 50. Thereafter, Defendant filed a reply to Plaintiff's response. ECF No. 55. This Report and Recommendation addresses both motions for summary judgment.

         Allegations of the complaint

         Plaintiff alleged that he is of the Muslim faith. ECF No. 1 at 7. He alleges that Defendant's policy concerning permissible beard length violates his rights under the First Amendment and RLUIPA. Id. He also challenges Defendant's “strip search policy” under both his First Amendment “right to freely practice his religion” and under RLUIPA. Id. at 15. He explains that the policy does not allow him “to keep his awrah (area between navel and knees) covered immediately after being strip searched . . . . Id. at 17. As relief, Plaintiff requests that Defendant be required to “implement a grooming policy” which would allow Plaintiff “to grow a fist length beard, trim the moustache, ” and to “cover his awrah after being stripped out.” ECF No. 1 at 8, 15.

         Legal standards governing a motion for summary judgment

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Put simply, motions “for summary judgment [are] proper where the issues to be resolved are questions of law, not fact.” United Nat. Ins. Co. v. Horning, Ltd., 882 F.Supp. 310, 312 (W.D.N.Y. 1995). Summary judgment is also proper “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The parties have been provided a discovery period. ECF No. 34.

         The “party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2553. The non-moving party must then show[2] the court “that there is an absence of evidence to support the nonmoving party's case.” Id. at 325, 106 S.Ct. at 2554. An issue of fact is “material” if it could affect the outcome of the case. Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256, 1259 (11th Cir. 2004) (citations omitted). The court must decide “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Hickson Corp., 357 F.3d at 1260 (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S.Ct. 2505, 2505, 91 L.Ed.2d 202 (1986)). All reasonable inferences must be resolved in the light most favorable to the nonmoving party, Watkins v. Ford Motor Co., 190 F.3d 1213, 1216 (11th Cir. 1999), “only if there is a ‘genuine' dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (quoted in Ricci v. DeStefano, 557 U.S. 557, 586, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490 (2009)).

         “Cross motions for summary judgment do not change the standard.” Latin Am. Music Co. v. Archdiocese of San Juan of the Roman Catholic & Apostolic Church, 499 F.3d 32, 38 (1st Cir. 2007) (quoted in Ernie Haire Ford, Inc. v. Universal Underwriters Ins. Co., 541 F.Supp.2d 1295, 1297 (M.D. Fla. 2008). “‘Cross motions for summary judgment are to be treated separately; the denial of one does not require the grant of another.'” Christian Heritage Acad. v. Okla. Secondary Sch. Activities Ass'n, 483 F.3d 1025, 1030 (10th Cir. 2007) (quoting Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979)) (quoted in Ernie Haire Ford, Inc., 541 F.Supp.2d at 1297-98)). Because Plaintiff (as the party with the burden of proof) has a heavier burden on summary judgment, the Court will consider the Defendant's motion first. If Defendant's motion is denied, the Court will consider whether Plaintiff is entitled to judgment as a matter of law.

         Rule 56 Evidence[3]

         Plaintiff is “a Muslim” prisoner in the custody of the Florida Department of Corrections; he is currently housed at Martin Correctional Institution. ECF No. 42, Ex. A [Plaintiff's Aff.] (ECF No. 42 at 17); ECF No. 47, Ex. A (ECF No. 47-1). Plaintiff is serving a life sentence. ECF No. 47-1 at 2. Plaintiff's affidavit declares his belief that “it is mandatory for an adult male-Muslim to grow the beard at least a fist length and trim the moustache.” ECF No. 42 at 18. He also believes “it is mandatory for an adult male-Muslim to keep his awrah covered (the area between the navel and knees) in the presence of other people.” Id. Plaintiff is subject to punishment if he does not comply with the rules of the Department of Corrections. Id. at 3. Plaintiff submitted affidavits of two other Muslim inmates who share the same three beliefs: (1) growing a beard is mandatory; (2) keeping the awrah covered is mandatory; and (3) “trimming the moustache is mandatory.” Id. at 21-23 [Ex. A]. The parties do not dispute the underlying facts. This case raises questions of law, not fact.

         Exhaustion

         Defendant previously filed a motion to dismiss for failure to exhaust administrative remedies. ECF No. 20. The argument presented was that Plaintiff failed to file a petition to initiate rulemaking pursuant to Florida's Administrative Procedures Act, Fla. Stat. § 120.54(7)(a). Id. That motion was denied because the Florida Department of Corrections does not include such a procedure in its grievance process. ECF Nos. 25, 28. Defendant has once again argued that Plaintiff failed to exhaust administrative remedies because he did not file a petition to initiate rulemaking. ECF No. 47 at 7-19 (citing to ECF No. 20). For the reasons previously explained, this argument should again be rejected.

         In making this recommendation, two additional points are worth highlighting. First, prisoners must comply with rules which “are defined not by the PLRA, but by the prison grievance process itself.” Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 922, 166 L.Ed.2d 798 (2007); see also Miller v. Tanner, 196 F.3d 1190, 1193 (11th Cir. 1999) (noting that prisoners must comply with the process set forth and established by the grievance procedures). “Compliance with prison grievance procedures, therefore, is all that is required by the PLRA to ‘properly exhaust.'” Jones, 549 U.S. at 218, 127 S.Ct. at 922-23. Neither Florida's grievance procedures nor the Inmate Handbook direct prisoners to file such petitions, a fact acknowledged by Defendant Jones. ECF No. 47 at 18.

         Defendant Jones, however, argues in her reply that the Supreme Court did not address “whether the grievance process is the only means of proper exhaustion, and to read the Court's language as such is a distortion of Jones.” ECF No. 55 at 4-6. For the reasons explained below, Defendant's argument is rejected.

         The Supreme Court has held that exhaustion requires “proper exhaustion of administrative remedies, which ‘means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).'” Woodford v. Ngo, 548 U.S. 81, 90, 126 S.Ct. 2378, 2385, 165 L.Ed.2d 368 (2006) (citation omitted). Prisoners must “make full use of the prison grievance process, ” see Woodford, 548 U.S. at 94, 126 S.Ct. at 2387, and be required to comply with the rules the Department of Corrections has established and holds out to its prisoners. Prisoners should not be required to use a process which is removed and entirely separate from the prison's grievance procedures. The Department's “grievance procedure is to provide an inmate with a channel for the administrative settlement of a grievance.” Fla. Admin. Code R. 33-103.001(1). Inmates are specifically advised that they may “file complaints regarding the . . . substance, interpretation, and application of rules and procedures of the department that affect them personally.” Fla. Admin. Code R. 33-103.001(4)(a). Plaintiff's challenges fell within the permissible subject matter of the grievance process, and he complied with the process as stated. Because filing a petition to initiate rulemaking is not outlined in the Department's procedures to challenge a rule, Plaintiff cannot be said to have failed to exhaust administrative remedies. That statutory remedy is separate and apart from the Department's internal grievance procedures.

         Second, the Supreme Court's most recent opinion interpreting the exhaustion requirement set forth in 42 U.S.C. § 1997e(a) provides additional support for this recommendation. In Ross v. Blake, 136 S.Ct. 1850, 1855 and 1860-62, 195 L.Ed.2d 117 (2016), the Court looked to Maryland's Administrative Remedy Procedure process as it was set forth in the Inmate Handbook. “That process is the standard method for addressing inmate complaints in the State's prisons . . . .” Ross, 136 S.Ct. at 1860. The Eleventh Circuit has also made clear that “prisoners must ‘properly take each step within the administrative process.'” Bryant v. Rich, 530 F.3d 1368, 1378 (11th Cir. 2008) (quoting Johnson v. Meadows, 418 F.3d 1152, 1158 (11th Cir. 2005) (pointing out that “a prisoner must file complaints and appeals in the place, and at the time, the prison's administrative rules require”) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002))). The Department's process is the one that must be pursued, not an unknown and unlisted procedure.

         The Court in Ross held that inmates do not have an “available” administrative remedy if it so “so opaque that it becomes, practically speaking, incapable of use. In this situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it.” Ross, 136 S.Ct. at 1859. When a remedy is “essentially ‘unknowable' - so that no ordinary prisoner can make sense of what it demands - then it is also unavailable.” 136 S.Ct. at 1859 (citing Goebert v. Lee Cnty., 510 F.3d 1312, 1323 (11th Cir. 2007); Turner v. Burnside, 541 F.3d 1077, 1084 (11th Cir. 2008)).[4]

         Defendant Jones has argued that “not having knowledge of the required preconditions to filing suit is not an excuse for failing to meet the preconditions.” ECF No. 47 at 18. Going even further, Defendant Jones states that “it should be apparent that Defendant would have an interest in not informing and instructing prisoners how to file law suits against the Florida Department of Corrections.” Id. at 18, n.3. That argument is rejected because it is not in line with guidance from the Supreme Court or the reasons supporting exhaustion.

         Section 1997e(a) states that “[n]o action shall be brought with respect to prison conditions . . . until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). A primary purpose of requiring exhaustion is to give an agency the “opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court.” Woodford, 548 U.S. at 89, 126 S.Ct. at 2385 (quoting McCarthy v. Madigan, 503 U.S. 140, 145, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992)). Defendant's attention is directed to Woodforv v. Ngo. There, the Supreme Court rejected a prisoner's argument that in many ways foreshadowed Defendant's suggestion in this case:

Respondent [the prisoner] contends that requiring proper exhaustion will lead prison administrators to devise procedural requirements that are designed to trap unwary prisoners and thus to defeat their claims. Respondent does not contend, however, that anything like this occurred in his case, and it is speculative that this will occur in the future. Corrections officials concerned about maintaining order in their institutions have a reason for creating and retaining grievance systems that provide - ...

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