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Gordon v. Mullins

United States District Court, W.D. Virginia, Roanoke Division

March 20, 2014

CARL D. GORDON, Plaintiff,
v.
RENA MULLINS, et al., Defendants.

MEMORANDUM OPINION

NORMAN K. MOON, District Judge.

Carl D. Gordon, a Virginia inmate proceeding pro se , filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging that defendants violated the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-1, et seq. , and Gordon's constitutional rights following the confiscation of thirty-seven books as excess property while he was housed at Red Onion State Prison ("ROSP"). Defendants have filed a motion for summary judgment ("Motion" or "Motion for Summary Judgment") (docket no. 41) and Gordon has responded thereto. Upon consideration of this action, I will grant defendants' Motion for Summary Judgment.[1]

I. Background

Pursuant to Virginia Department of Correction ("VDOC") Operating Procedure ("OP") 802.1 and ROSP policy, prisoners at ROSP are allowed to possess up to thirteen books.[2] OP 802.1, Attach. 2 and ROSP Offender Orientation Handbook, p. 31. Permission to keep personal property is "considered a privilege that may be withdrawn, " and failure to comply with the OP or facility procedures "may result in forfeiture of personal property privileges." OP 802.1(IV)(J). In the fall of 2010, Gordon possessed fifty books, in violation of OP 802.1 and ROSP policy. Pursuant to OP 802.1, Gordon had the opportunity to voluntarily dispose of his excess property at any time.[3] OP 802.1(VII)(D). However, Gordon did not voluntarily dispose of his excess property and his excess books were discovered by Sergeant Gilbert on November 2, 2010.[4] Upon discovery, Sergeant Gilbert confiscated thirty-seven of Gordon's fifty books and gave Gordon a Notification of Confiscation of Property form that listed the books he confiscated.[5]

OP 802.1 provides that a prisoner has seven days to appeal the confiscation of his personal property through the offender grievance procedure.[6] OP 802.1 (VII)(I). There is no dispute that Gordon timely grieved the confiscation of his property. In his informal complaint, Gordon complained that he did not get to choose all thirteen of the books that he wanted to keep and asked to exchange five of the books that he then possessed for a dictionary and four religious books that were included in the confiscated books. In his regular grievance, Gordon complained that the policy which allows only thirteen books was outdated and argued that he should have some of his books returned to him. The Level I response deemed Gordon's Regular Grievance unfounded. Gordon's appeal of the Level I response complained that he did not get to choose all thirteen books and that thirteen books do not sufficiently keep him abreast of constantly changing information about law, religion, rehabilitation, world advancements, etc. The Level II response to Gordon's appeal upheld the Level I response and indicated that it was the last level of appeal for Gordon's grievance.[7]

Pursuant to OP 802.1, if it is verified that the seized property belongs to the prisoner but that he is not authorized to possess it (e.g., it is excess property), the prisoner will be notified by a Property Disposition form and may designate the disposal method by completing and returning the form within five days. Gordon was given a Property Disposition form on November 15, 2010.[8] However, according to defendant Vanover, a ROSP personal property officer, Gordon never returned the form.

Pursuant to OP 802.1, a facility should retain custody of the confiscated property until completion of all grievance appeals and other claims. Once that time expires, any items for which a prisoner does not designate a method of disposal are converted to state ownership and disposed of by the facility. OP 802.1(VII)(E), (I). Gordon's grievance appeal process was completed on December 17, 2010, when he received the Level II response. Gordon did not return a Property Disposition form designating how to dispose of the excess books by the five-day deadline or even by the conclusion of his grievance appeals. According to defendant Vanover, Gordon's books are no longer at ROSP and "were likely disposed of in accordance with operating procedures." Defs.' Mot. for Summ. J., Def. Vanover Aff., Ex. I ¶ 9. Almost six months later, in a June 2, 2011 Request for Information, Gordon requested a copy of a Property Disposition form that he allegedly submitted after receiving his Level II grievance response on December 17, 2010. Gordon stated that the Property Disposition form which he submitted indicated that he would like his excess books sent to The Quest Institute ("Quest").[9] Thereafter, Gordon filed several additional Requests for Information inquiring as to the status of his excess books and, in response to one of these requests, was told that his books were "dispositioned per [his] request." There is no copy of a completed Property Disposition Form in the record, and defendant Vanover indicates that "there is no documentation in [Gordon's] folder to indicate that he returned the form selecting a method of disposal for his excess books." Defs.' Mot. for Summ. J., Def. Vanover Aff., Ex. I ¶ 9.

Gordon complains that OP 802.1 violates RLUIPA and his First Amendment right to free exercise of religion and that the defendants violated these and other federal rights when: Sergeant Gilbert, and not a designated personal property officer, confiscated his excess property; Gordon was not allowed to exchange five of his books for a dictionary and four religious books; he was not allowed to send his excess books to Quest; some of his grievances and complaints were not logged, were rejected as repetitive, were deemed unfounded, or were upheld on appeal; the defendants retaliated against him for filing grievances and this action; and the defendants conspired to violate his rights by hindering his chances of selling his poems for publication.

II. Standard of Review

Federal Rule of Civil Procedure 56(a) provides that a court should 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." "As to materiality... [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). In order to preclude summary judgment, the dispute about a material fact must be "genuine, ' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. ; see also JKC Holding Co. v. Wash. Sports Ventures, Inc. , 264 F.3d 459, 465 (4th Cir. 2001). However, if the evidence of a genuine issue of material fact "is merely colorable or is not significantly probative, summary judgment may be granted." Anderson , 477 U.S. at 250. In considering a motion for summary judgment under Rule 56, a court must view the record as a whole and draw all reasonable inferences in the light most favorable to the nonmoving party. See, e.g., Celotex Corp. v. Catrett , 477 U.S. 317, 322-24 (1986); Shaw v. Stroud , 13 F.3d 791, 798 (4th Cir. 1994).

A court must grant a motion for summary judgment if, after adequate time for discovery, the nonmoving party 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 , 477 U.S. at 322. The nonmoving party cannot defeat a properly supported motion for summary judgment with mere conjecture and speculation. Glover v. Oppleman , 178 F.Supp.2d 622, 631 (W.D. Va. 2001) ("Mere speculation by the non-movant cannot create a genuine issue of material fact."). The trial judge has an "affirmative obligation" to "prevent factually unsupported claims and defenses' from proceeding to trial." Id. (quoting Celotex , 477 U.S. at 317).

III. Validity of OP 802.1's Book Limit Policy

Gordon argues that the VDOC's thirteen-book limit, imposed by OP 802.1, violates his First Amendment right to free exercise of religion and RLUIPA by imposing a substantial burden on his ability to learn, understand, and practice Hare Krishna and Islamic doctrine. I find that Gordon has not demonstrated that any of the defendants were responsible for the establishment or implementation of the relevant portion of OP 802.1, or that it imposes a substantial burden on his religion. Accordingly, I will grant summary judgment as to these claims.

The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend I.; Cruz v. Beto , 405 U.S. 319, 322 (1977). To state a free exercise claim under the First Amendment, a plaintiff must allege facts sufficient to show (1) that he holds a sincere belief that is religious in nature and (2) that prison regulations impose a ...


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