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Depaola v. Ray

United States District Court, Fourth Circuit

November 24, 2013

ERIC J. DEPAOLA, Plaintiff,
TRACY RAY et al., Defendants.


Samuel G. Wilson United States District Judge

Plaintiff Eric J. DePaola, a Virginia inmate proceeding pro se, brings this action arising out of his incarceration at Red Onion State Prison (“ROSP”) pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq., against the defendants, the Virginia Department of Corrections (“VDOC”) and a number of its employees. The court referred the matter to United States Magistrate Judge Pamela M. Sargent for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate Judge has filed a thorough, sixty-one page report recommending that the court grant the defendants’ motion for summary judgment on all but three of DePaola’s claims. DePaola has filed an objection to the Report and Recommendation in which he makes repetitive arguments regarding the report’s findings.[1] The defendants did not file an objection. When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation. Section 636, however, permits modifications and de novo determination of any portion of the Report and Recommendation of the Magistrate Judge, and the district judge “always retains authority to make the final determination” in non-consent matters. Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir. 1986); see also 28 U.S.C. § 636(b).

After reviewing the record, the applicable law, the recommendation of the Magistrate Judge, and DePaola’s objections, the court adopts the Report and Recommendation in all respects, except as to the three remaining claims. The court dismisses the first of the three claims without prejudice for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B), and grants the defendants’ motion for summary judgment on the remaining two, with one narrow exception: the court will refer DePaola’s request injunctive relief as to one of those claims to the Magistrate Judge for a hearing.


At this stage the court recounts only the facts that pertain to the three remaining claims.

First, DePaola asserts a claim pursuant to § 1983 that officials violated his Fourth Amendment rights in subjecting him to strip searches “as female employees (i.e., guards and nurses, etc.) would be walking past able to view said search and [his] nakedness” while DePaola was in the strip search cage. Compl. 12, ECF No. 1. He does not allege, however, that a female ever conducted a strip search or stood by and observed the performance of one.[2]

The Report and Recommendation found a genuine issue of material fact on DePaola’s § 1983 strip search claim because, viewed in the light most favorable to DePaola, DePaola’s allegations might be read to allege that female staff could have been in the vicinity of a strip search without a reasonable need for their presence. See Lee v. Downs, 641 F.2d 1117, 1120–21 (4th Cir. 1981) (holding that undressed inmates are not to be viewed by prison staff of the opposite sex when not reasonably necessary). The Magistrate Judge found a genuine issue of material fact precluding summary judgment as to two Red Onion supervisors because one ordered and approved the strip search policy allowing the presence of female staff during strip searches and served as building supervisor, and the other implemented that policy in the B-3 segregation pod.

Second, DePaola asserts claims pursuant to § 1983 and RLUIPA that while housed in the B-3 segregation pod, ROSP policy did not allow him to have a personal television in his cell, forcing him to “attempt to watch his required Jumah [sic] service” on a muted television projector with no closed-captioning and with images distorted by a “bright pod light . . . causing the picture to be faded therefore not allowing [him] to meaningfully see said service especially without straining [his] eyes.” Compl. 15–16, ECF No. 1. ROSP policy permits B-3 segregation offenders to watch religious services on the pod television, which is a projection television without sound and with closed-captioning; however, the Jumu’ah services on DVD are without closed-captioning. Aff. of Ray, ECF No. 27-1. Consequently, those DVDs are projected without either sound or closed-captioning. In moving for summary judgment, the defendants contend that the lack of closed-captioned Jumu’ah programming did not prevent DePaola from practicing his religious faith in other ways, such as reading religious materials, speaking with the facility chaplain, participating in the Common Fare diet, and praying.

The Report and Recommendation concluded that there is a genuine issue of material fact and that the court should deny summary judgment as to certain defendants on DePaola’s individual-capacity § 1983 and RLUIPA claims, finding that the DVD presentation of the Jumu’ah services placed a substantial burden on DePaola’s exercise of religion “because he effectively was prevented from practicing an obligatory tenet of his religion.” R&R 37, ECF No. 35. Applying a burden-shifting analysis under RLUIPA, the Magistrate Judge found that the presentation of a muted religious service program with no closed-captioning and distorted images furthered no compelling governmental interest. And analyzing DePaola’s Free Exercise Clause claims under the rational-basis test from Turner v. Safley, 482 U.S. 78 (1987), the Magistrate Judge could not identify a valid, rational connection between a governmental interest and the practice of showing the Jumu’ah services on a muted television without closed-captioning and with distorted images. However, she did find that while the defendants satisfied Turner’s second prong because there are suitable alternatives to the Jumu’ah service, the defendants did not satisfy Turner’s third and fourth prongs because they did not address DePaola’s suggestion that they provide Jumu’ah services on DVDs with closed-captioning. R&R 40, ECF No. 35.

Third, DePaola asserts claims pursuant to §1983 and RLUIPA because his physical restraints during transport to and from a court hearing at the Wise County Courthouse on March 22, 2011, prevented his performance of wudu, the practice of cleansing before prayer, and he missed two of his required prayers. In moving for summary judgment, the defendants argued that VDOC’s commitment to public safety required that DePaola remain securely confined or restrained at all times while away from the prison facility. This policy is effectuated by restraining offenders with handcuffs, waist chains, leg irons, and a security box during transports.

Though the Magistrate Judge found no violation of the First Amendment’s Free Exercise Clause because there is an obvious “‘valid, rational, connection’ between keeping inmates properly restrained while off prison grounds and security, ” Turner, 482 U.S. at 89 (finding that a regulation which impinges on an inmates’ constitutional rights can be sustained as “reasonably related” to a legitimate penological interest), the Magistrate Judge did find that “blanket statements regarding security are insufficient to make the necessary showing of a compelling governmental interest to support RLUIPA.” R&R 42, ECF No. 35; see also Couch v. Jabe, 679 F.3d 197, 202 (4th Cir. 2012) (finding that the defendants must connect the policy restrictions at issue to the specific concerns, and show that these concerns are furthered by the policy); Smith v. Ozmint, 578 F.3d 246, 252 (4th Cir. 2009) (“conclusory, one-sentence explanation[s] do[] not, by [themselves], explain why the security interest is compelling”); Lee v. Gurney, No. 3:08cv99, 2009 WL 3109850, at *6 (E.D. Va. Sept. 25, 2009) (“Prison officials must supply adequate record evidence that the particular security concerns that prompted the policy are compelling and are advanced by their policy.”). Accordingly, the Report and Recommendation found a genuine issue of material fact and recommended that the court deny summary judgment as to various individual defendants on DePaola’s individual-capacity RLUIPA claim arising out of his transport.


The court concludes that DePaola’s allegations concerning the possibility that female guards could have witnessed strip searches conducted within the B-3 segregation pod fails to raise a plausible claim for relief. The court finds that DePaola’s complaint essentially alleges that a female guard might have viewed his strip search. It does not show an actual constitutional violation. Accordingly, the court dismisses this claim pursuant to 28 U.S.C. § 1915(e)(2)(B).

Section 1915(e) provides that in proceedings in forma pauperis, “the court shall dismiss the case at any time if the court determines that . . . the action . . . fails to state a claim on which relief may be granted.” Under Rule(8)(a)(2) of the Federal Rules of Civil Procedure, a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” To survive review, the claimant’s “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” and the pleading must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007) (citation omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plaintiffs must offer enough facts “to nudge[] their claims across the line from conceivable to plausible, ” Twombly, 550 U.S. at 570, and from which the court, calling upon “its judicial experience and common sense, ” can conclude that the pleader has “shown” that he is entitled to relief, Fed.R.Civ.P. 8(a); Iqbal, 556 U.S. at 679. While courts should construe a pro se complaint ...

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